Assembly!Meeting! December!12,!2015! InformationalReports ......to the client or third person any...
Transcript of Assembly!Meeting! December!12,!2015! InformationalReports ......to the client or third person any...
Assembly Meeting December 12, 2015
Informational Reports
LAP
Professional Conduct Opinions ISBA Election Notice
LAWYERS’ ASSISTANCE PROGRAM
CONNECTING WITH LAW STUDENTS
In 2015, LAP along with Justice Anne Burke, presented Recognizing the Pressures of Law School: Identifying Students At Risk For Depression & What You Can Do To Help to administrators, staff, and
students of all 9 Illinois law schools. LAP’s increased outreach through presentations and tabling has yielded the creation of 3 LAP Law Student Groups. The Groups are committed to making it easier for students to access mental health services and to reducing the stigma attached to seeking help.
LAP WRITING COMMITTEE
The LAP Writing Committee increased the number of LAP publications three-fold in its inaugural year. LAP was published in 5 different bar association journals, significantly increasing the number of attorneys who hear about LAP.
CONTINUING LEGAL EDUCATION In the past year, LAP has continued its commitment to education by providing MCLE training at over 36 venues
in addition to its online MCLEs.
ASSESSMENTS · REFERALS · COUNSELING · INTERVENTION
· PEER SUPPORT · 12 STEP · MCLE · CASE MANAGEMENT
OUR MISSION
PROTECT – to protect client from impaired lawyers and judges.
HELP – to help lawyers, judges and law students get assistance for alcohol dependency, drug addiction and mental health problems.
EDUCTATE – to educate the legal community about addiction and mental health
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ISBA Professional Conduct Advisory Opinion
________________________________ Opinion No. 15-03 September 2015 Subject: Client Funds and Property Digest: A lawyer who leaves a practice may leave the other members of his firm with unclaimed wills after he leaves. If, after a diligent search, the other lawyers cannot locate the individuals to whom those wills belong, the lawyers should file those wills with the Secretary of State Deposit of Wills. References: Illinois Rule of Professional Conduct 1.3 Illinois Rule of Professional Conduct 1.7 Illinois Rule of Professional Conduct 1.8 Illinois Rule of Professional Conduct 1.9
Illinois Rule of Professional Conduct 1.15(a)
Illinois Rule of Professional Conduct 1.15(d) 755 ILCS 5/6-1
755 ILCS 15/1
15 ILCS 305-5.15 53 Illinois Administrative Code 400
FACTS
Attorney A practices in a three member firm. One of the other partners practiced in trusts and estates. That partner is now leaving the state and will be going on retired status in Illinois with no intention to service Illinois clients. Attorney A and the remaining partners will not engage in trusts and estates law and have several wills left in their possession.
QUESTIONS What are the ethical obligations for an attorney when storing original wills?
ANALYSIS
Maintaining and storing a will while awaiting probate creates many ethical obligations for attorneys. Even if an attorney stores a client’s will, the will remains the property of the client. Illinois Rule of Professional Conduct 1.15(a) governs safekeeping of property and states that tangible property held by a lawyer shall be identified and appropriately safeguarded. If a client wishes to retrieve his or her property RPC 1.15(d) requires a lawyer to promptly “deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.” Attorneys should be aware of any continuing attorney/client relationship that may remain when creating a will. If the testator remains a client, RPC 1.7 (Conflict of Interest: Current Clients) and 1.8 (Conflict of Interest: Current Clients: Specific Rules) may apply. If the testator is a former client, see RPC 1.9 (Duties to Former Clients). An attorney has certain obligations under 755 ILCS 5/601 to file wills once a testator passes away. As that statute states: “Immediately upon the death of the testator any person who has the testator’s will in his possession shall file it with the clerk of the court of the proper county and upon failure or refusal to do so, the court on its motion or on the petition of any interested person may issue an attachment and compel the production of the will.” If neither Attorney A nor the remaining partners wish to retain the original wills in their possession, other alternatives must be explored. Even the most diligent of attorneys may encounter circumstances in which the testator cannot be located, even after a diligent search. For these circumstances the Illinois Secretary of State’s Office created the Deposit of Wills program. 53 Illinois Administrative Code 400 sets out the requirements for the Deposit of Wills program which include diligent searches for the testator, depositing the will, and receiving a receipt for the will. The complete list of the requirements and further explanation can be found in 53 Ill. Admin. Code 400. Attorneys should have a succession plan in place for whoever takes over their practice. Comment 5 to IPRC 1.3 suggests the following: “To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action.” Some attorneys prefer to store wills in a safety deposit box. These are fairly secure as the lessor bank can only open the box after satisfactory proof of death of the lessee. 755 ILCS 15/1 requires the lessor to remove any will found in a safe deposit box and deliver it to the circuit court for the county in which the lessee resided prior to his death or the clerk of the circuit court in which the safe deposit box is located.
CONCLUSION
When storing a will, an attorney must keep in mind the rules regarding safekeeping client’s property and confidentiality. Wills can be especially tricky as it is not always known if the testator is living or if another will has been created. The Secretary of State’s Deposit of Wills offers a solution for an attorney if they are unsure of the testator’s status after a diligent search. This opinion is not comprehensive; an attorney in this situation should consult the statutes mentioned above. _________________________________
Professional Conduct Advisory Opinions are provided by the ISBA as an educational service to the public and the legal profession and are not intended as legal advice. The opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in assessing lawyer conduct. © Copyright 2015 Illinois State Bar Association
ISBA Professional Conduct Advisory Opinion
________________________________ Opinion No. 15-04 September 2015 Subject: Division of Fees; Referral Fees and Arrangements Digest: A lawyer may share court-awarded legal fees with a nonprofit organization that referred the matter to the lawyer. However, in the absence of court-awarded fees, the lawyer may not share fees with the organization, and may not pay a referral fee to the organization except as may be permitted under Rule 7.2(b)(2). References: Illinois Rules of Professional Conduct, 5.4(a)(4) and 7.2(b)(2)
ABA Model Rule 5.4(a)(4) ABA Formal Op. 93-374
FACTS
An employment law firm provides pro bono services to various nonprofit organizations, including domestic violence shelters; health clinics; community-based worker advocacy organizations; community education centers; housing organizations. On occasion, those organizations refer their constituents to the law firm for consultation on employment matters. In those instances, the firm represents the individual and not the organization. The legal advice the firm provides to the individual client is independent of any relationship the firm may have with the organization.
Several employment law statutes, such as the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), the Illinois Minimum Wage Law, 820 ILCS 10511 et seq. ("IMWL"), the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. ("IWPCA"), provide for attorney fee shifting in the event the plaintiff-employee prevails. In such cases, attorneys’ fees are generally awarded following trial through a fee petition filed with and approved by a court or, in the event of a settlement, the settlement, includes payment of the plaintiffs' attorneys' fees and costs, is submitted to a court for approval of its fairness.
The law firm would like to provide a referring organization with a reasonable referral fee to support its work in the community if it is permissible under the Rules of Professional Conduct.
QUESTION
May a lawyer pay a referral fee to a non-profit organization that refers a client to the law firm? If so, may such referral fee be in the form of a percentage of the total attorneys' fees recovered by the firm in the case, assuming the recovered attorneys’ fees have been awarded pursuant to a fee petition approved by a court or pursuant to a settlement approved by a court?
ANALYSIS Although the inquirer does not expressly so state, we have assumed, based on the inquirer’s description of the facts, that the relevant nonprofit organizations do not provide legal services and do not qualify as “not-for-profit lawyer referral services” under Rule 7.2 of the Illinois Rules of Professional Conduct (“RPC”). For the reasons discussed below, the lawyer may share court-awarded legal fees with the nonprofit organizations under RPC 5.4(a)(4), but, in the absence of court-awarded fees, the lawyer may not share other legal fees with the nonprofit organization and may not pay a referral fee to the organization.
In 2010, the Illinois Supreme Court added RPC 5.4(a)(4), which expressly permits a lawyer to share court-awarded legal fees with a nonprofit organization that has referred a matter to the lawyer:
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
* * *
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. [Emphasis added.]
RPC 5.4(a)(4) is identical to ABA Model Rule 5.4(a)(4). The ABA Rule codified ABA Formal Opinion 93-374 (1993). That opinion concluded that, even though the ABA rules in effect at that time barred a lawyer from sharing fees with non-lawyers, it nonetheless was “not ethically improper for a lawyer who undertakes a pro bono litigation representation at the request of a non-profit organization that sponsors such pro bono litigation to share, or agree in advance to share, with the organization court-awarded fees resulting from the representation.” Op. 93-374 at 1.
RPC 5.4(a)(4) does not restrict the amount of the legal fees that a lawyer may share with the nonprofit organization. Accordingly, the lawyer may share any percentage of its court-awarded legal fees, including all such fees, with the referring nonprofit organization.
However, the rule is not without limitation. RPC 5.4(a)(4), like its ABA equivalent, limits fee sharing to court-awarded legal fees. The importance of that limitation is discussed in ABA Op. 93-374. As the ABA explained, court-awarded fees “means both that it does not come from the client, and thus present a risk of burdening the client with excessive fees; and that it results from the successful pursuit of some type of litigation that is recognized as serving a public purpose,
and that is intended to be encouraged by such fee awards.” Id. at 3. Further, because “a court has reviewed the fee and determined that it is reasonable, the interest in prohibiting unreasonable fees is satisfied without application of the prophylactic rule against payment for referrals.” Id. at 10. Because fee sharing under RPC 5.4(a)(4) is expressly limited to court-awarded fees, a lawyer may not share with the nonprofit organization any other fees that the lawyer receives, including any fees that client pays to the lawyer out of his or her own pocket.
In the absence of court-awarded fees, the lawyer also may not pay a “referral fee” to the nonprofit organization, even if the source of the fee is not derived from legal fees paid by the client. RPC 7.2(b)(2) governs the payment of referral fees, and provides as follows:
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may
* * *
(2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; [Emphasis added.]
Comment [6] to RPC 7.2 describes a lawyer referral service:
A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit lawyer referral service.
Assuming none of the nonprofit organizations that are the subject of the inquiry qualifies as a not-for profit lawyer referral service under RPC 7.2(b)(2), the lawyer may not pay a referral fee to the nonprofit organization (except to the extent fee sharing is permitted under Rule 5.4(a)(4)).
CONCLUSION
A lawyer is permitted under RPC 5.4(a)(4) to share any percentage, including all, of any court-awarded legal fees with a nonprofit organization that referred the matter to the lawyer. However, in the absence of court-awarded fees, the lawyer may not share legal fees with the nonprofit organization and may not pay a referral fee unless the nonprofit organization also qualifies as a not-for-profit lawyer referral service under RPC 7.2(b).
_________________________________
Professional Conduct Advisory Opinions are provided by the ISBA as an educational service to the public and the legal profession and are not intended as legal advice. The opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in assessing lawyer conduct.
© Copyright 2015 Illinois State Bar Association
ISBA Professional Conduct Advisory Opinion
________________________________ Opinion No. 15-05 September 2015 Subject: Advertising and Solicitation Digest: A law firm’s website may contain links to other websites of other businesses and/or organizations. References: Illinois Rules of Professional Conduct, Rules 7.1, 7.2, 8.4(c)
ABA Formal Op. 10-457 ISBA Opinion 96-10
Washington State Bar Ass’n Advisory Opinion 2070 (2004)
FACTS
A business which specializes in the review of entities to determine more cost effective ways of doing business has asked a law firm to post a link to the business on the law firm’s website. The law firm will not receive any compensation from the business.
QUESTION May the law firm ethically link to this business on the law firm website?
ANALYSIS
The inquiring lawyer has asked if his or her law firm can ethically provide a link on the law firm’s website to another business. This link will lead readers of the law firm website to another site presumably managed by the outside company.
The Illinois Rules of Professional Conduct do not bar the use of links by lawyers or law firms on their websites. However, lawyers’ communications, including communications on their websites, must not be false or misleading pursuant to Rules 7.1 and 8.4(c). ISBA Op. 96-10. See also, ABA Formal Op. 10-457.
Accordingly, if the information on the linked site contains false or misleading information about the lawyer or the lawyer’s services, we believe the lawyer must refrain from linking to the site. See, e.g., Washington State Bar Ass’n Advisory Opinion 2070 (2004)(lawyer may link to an attorney rating company website provided the lawyer is responsible for ensuring the truthfulness of the communications regarding the lawyer on the linked website).
Given that the lawyer or the law firm may not control, or be aware of, the completeness or accuracy of the content and information contained on the linked site that is unrelated to the lawyer or the lawyer’s services, the lawyer or the law firm may wish to include a disclaimer informing readers that the law firm does not maintain the linked site and does not necessarily sponsor or approve of the materials and information contained in the linked site.
Finally, although not indicated by the inquiry, if the lawyer or law firm refers clients to the business in question pursuant to an agreement that provides for the business to refer customers to the lawyer, the lawyer must abide by the requirements of Rule 7.2(b)(4). _________________________________
Professional Conduct Advisory Opinions are provided by the ISBA as an educational service to the public and the legal profession and are not intended as legal advice. The opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in assessing lawyer conduct. © Copyright 2015 Illinois State Bar Association
Notice of ISBA Election 2016
Office of Third Vice-President
10 – Seats on the Board of Governors
44 – Seats on the Assembly (Cook County)
88 – Seats on the Assembly (Outside Cook County)
There follows a listing of the offices in the Illinois State Bar Association to be filled by the 2016
annual election. Those elected to the Board of Governors and Assembly take office at the opening
of the Annual Meeting on June 16, 2016 and the third vice-president takes office at the close of
the Annual Meeting on June 18, 2016.
Third Vice-President - 1 to be elected
No incumbent1
Board of Governors, 3 year term
Cook – 5 to be elected
Incumbents:
Albert E. (Al) Durkin, Chicago
Karen A. Enright, Chicago2
Celia G. Gamrath, Chicago
John L. Nisivaco, Chicago2
David B. Sosin, Orland Park
Area 2 (Circuits 17, 19 & 22) – 1 to be elected
Incumbent: Elizabeth M. Rochford, Waukegan
Area 5 (Circuits 5, 6, & 11) – 1 to be elected
Incumbent: Keith E. Fruehling, Urbana
Area 7 (Circuits 1, 2, & 4) – 1 to be elected
Incumbent: Carey C. Gill, Carbondale
Under Age 37 – Downstate – 1 to be elected
Incumbent: Angelica W. Wawrzynek, Mattoon
Under Age 37 – Cook – 1 to be elected
Incumbent: Bridget C. Duignan, Chicago3
Assembly, 3 year Term
Circuit 1 – 2 to be elected
Incumbents:
Elvis C. Cameron, Anna
Sarah J. Taylor, Carbondale
1 Under the bylaws the third vice-president automatically succeeds to the office of second vice-president; therefore, there
is no incumbent for this office. 2 Ineligible to succeed due to term limitations. 3 Ineligible to succeed due to age limitations.
Assembly, 3 year Term (cont.)
Circuit 2 – 2 to be elected
Incumbents:
Luke A. Behme, Mt. Vernon
William C. Hudson, Mt. Carmel
Circuit 3 – 4 to be elected
Incumbents:
E. Nicole (Nikki) Carrion, Edwardsville1
Ebony R. Huddleston, Godfrey
Anthony E. Rothert, Edwardsville1
Circuit 4 – 2 to be elected
Incumbent: Edward (Ted) Graham, Jr., Taylorville
Circuit 5 – 1 to be elected
Incumbent: Jared L. Trigg, Danville
Circuit 6 – 5 to be elected
Incumbents:
Steven A. Amjad, Champaign
Anthony A. “Tony” Bruno, Urbana
Thomas A. Bruno, Urbana1
John M. (Jack) Kiley, Decatur
Mark C. Palmer, Champaign
Circuit 7 – 6 to be elected
Incumbents:
Donald M. Craven, Springfield
Nancy G. Easum, Springfield
Howard W. Feldman, Springfield1
Edward J. Schoenbaum, Springfield
Daniel K. Wright, Springfield 1
Circuit 8 – 1 to be elected
Incumbent: James A. (Jim) Hansen, Quincy
Circuit 9 – 1 to be elected
Incumbent: Stephanie S. Johnson, Canton1
Circuit 10 – 5 to be elected
Incumbents:
Angela Baker Evans, Peoria
Graciela (Grace) Mata, San Diego, CA2
Michele A. Miller, Peoria1
Richard A. Russo, Peoria1
Dick B. Williams, East Peoria
1 Ineligible to succeed due to term limitations. 2 Ineligible to succeed due to residence.
Assembly, 3 year Term (cont.)
Circuit 11 – 4 to be elected
Incumbents:
Sarah R. Duffy, Pontiac1
Pablo A. Eves, Bloomington1
John K. Kim, Bloomington
Stephen R. Pacey, Paxton
Circuit 12 – 4 to be elected
Incumbents:
Sean D. Brady, Joliet1
Ted P. Hammel, Joliet
Michael R. Lucas, Joliet1
Circuit 13 – 2 to be elected
Incumbents:
George G. Leynaud, Peru1
Melissa M. Olivero, Peru
Circuit 14 – 3 to be elected
Incumbents:
Mark D. Churchill, Moline
Amy L. Keys, Moline
Theodore G. Kutsunis, Moline1
Circuit 15 – 1 to be elected
Incumbent: Heather A. McPherson, Freeport1
Circuit 16 – 5 to be elected
Incumbents:
Steven A. Andersson, Aurora1
Susan W. Rogaliner, St. Charles1
Ryan P. Theriault, St. Charles
Steven D. Titiner, Aurora
Circuit 17 – 4 to be elected
Incumbents:
Frank A. Perrecone, Rockford1
Donald L. Shriver, Rockford1
Donald P. Shriver, Rockford
Tamika R. Walker, Rockford
Circuit 18 – 16 to be elected
Incumbents:
Robert J. Anderson, Wheaton1
Lynn C. Cavallo, Wheaton
Dion U. Davi, Wheaton1
Kimberly A. (Kim) Davis, Lisle
1 Ineligible to succeed due to term limitations.
Assembly, 3 year Term (cont.)
Circuit 18 (cont.)
Robert Handley, Downers Grove1
Terra Costa Howard, Glen Ellyn
Patrick B. (Pat) Hurley, Wheaton
Henry D. Kass, Aurora1
John F. Knobloch, Naperville1
James J. Laraia, Wheaton
Colleen M. McLaughlin, Wheaton1
Ronald D. Menna, Jr., Wheaton1
Sharon R. Mulyk, Glen Ellyn
Christine M. Ory, Wheaton
David N. Schaffer, Naperville
Circuit 19 – 10 to be elected
Incumbents:
Robert O. Ackley, Libertyville
Terrence J. (Terry) Brady, Libertyville
Markham M. (Mark) Jeep, Waukegan
Joseph Thomas Morrison, Waukegan
Torri M. Newsome, Waukegan
Krysia W. Ressler, Waukegan
Ennedy D. Rivera, Highland Park
Gary L. Schlesinger, Libertyville
Timothy J. Storm, Barrington1
Michael S. Strauss, Libertyville1
Bernie Wysocki, Waukegan
Circuit 20 – 5 to be elected
Incumbents:
Kathie Blackman Dudley, Columbia
L. Dominic “Nick” Kujawa, Jr., Belleville
James M. Radcliffe, III, Belleville
Thomas (Tom) Speedie, Jr., Nashville1
Shira D. Truitt, Belleville
Circuit 21 – 1 to be elected
Incumbent: J. Imani Drew, Kankakee
Circuit 22 – 3 to be elected
Incumbents:
Richard Curran, Jr., Crystal Lake1
James P. Kelly, Crystal Lake
Rhonda L. Rosenthal, Crystal Lake1
Circuit 23 – 1 to be elected
Incumbents:
Richard L. Turner, Sycamore
1 Ineligible to succeed due to term limitations.
Assembly, 3 year Term (cont.)
Cook County – 44 to be elected
Incumbents:
F. Michael Alkaraki, Chicago
Patrice Ball-Reed, Chicago1
Mark Edward Becker, Western Springs
Catherine R. Brukalo, Chicago
Samuel F. (Sam) Cannizzaro, Chicago1
Anthony Vincent Casaccio, Chicago
Joseph M. Cataldo, Glenview
Joel L. Chupack, Chicago1
Kimberly A. Cook, Chicago
Gina A. DeBoni, Chicago
Alice E. Dolan, Chicago
Jessica R. Durkin, Chicago
Sharon L. Eiseman, Chicago
John M. Fitzgerald, Chicago
Eugene F. Friedman, Chicago1
Michele M. Jochner, Chicago
Cindy M. Johnson, Chicago
Eli Korer, Chicago
Jeffrey G. Liss, Chicago
Joseph F. Locallo, III, Chicago1
Adam T. Margolin, Chicago
Pamela S. Menaker, Chicago1
Julie A. Neubauer, Chicago
Daniel E. O’Brien, Chicago
Kevin E. O’Reilly, Chicago
J. Damian Ortiz, Chicago1
Alan Pearlman, Northbrook
David Rabinowitz, Chicago
Deborah J. Soehlig, Chicago1
Letitia “Tish” Spunar-Sheats, Chicago1
Sarah E. Toney, Chicago
David Vander Ploeg, Chicago1
John A. Wasilewski, Palos Heights1
Alexander P. White, Des Plaines
Cory White, Chicago
Mary Margaret Williams, Chicago
Bryan J. Wilson, Chicago
Erin M. Wilson, Chicago
Mark E. Wojcik, Chicago
See next page for Nomination information.
1 Ineligible to succeed due to term limitations.
Nomination
Members who wish to be candidates for office must reside in the proper geographic jurisdiction,
must meet other requirements for a particular office, and must be in good standing with the ISBA
at the close of the nominating period.
Voting Address: Bylaws Sec. 1.11 reads: For purposes of voting and candidacy for ISBA elected
office, a member’s voting address shall be his or her primary legal office as designated by the
member. If a member’s primary legal office is not within the state of Illinois, such member may
designate their Illinois residence as their voting address; if no voting address is designated, the
member shall be considered a non-resident member.
Nominating petitions must be in writing and in the substantial form set forth in Para. 3.2. of the
ISBA Policy and Procedures on Association Elections. Nominating petitions are available on the
ISBA website under “About>Leadership” or directly at www.isba.org/elections.
Nominating petitions may be filed no earlier than Monday, January 4, 2016 and must be filed by
4:30 p.m. on Monday, February 1, 2016 at either the Illinois Bar Center, 424 South Second Street,
Springfield or the ISBA Chicago Office at 20 S. Clark Street, 9th Floor, Chicago. Petitions must
be physically submitted with original signatures. Petitions submitted via email or fax will not be
accepted. (Para. 3.4., ISBA Policy and Procedures on Association Elections.)
The ISBA Bylaws and Policy and Procedures on Association Elections, additional pertinent
information and petition forms for each category of candidacy may be found on the ISBA website
under “About>Leadership” or directly at www.isba.org/elections.
Voting
All members of the Association in good standing (except non-lawyer members) are eligible to vote
for the office of third vice-president.
Eligible members residing in the areas in which there are contested elections may vote in the
appropriate Board of Governors and Assembly race.
The 2016 Election will be conducted by electronic voting. Paper ballots will be utilized in some
instances. Full details on the voting process will be provided to the full active membership well
in advance of the formal election.
September 2015 Robert E. Craghead
Executive Director
By policy, a member’s dues must be paid by March 1, 2016 for the period ending June 30, 2016, in order to be eligible to vote in ISBA Elections.