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The Supreme Court is set to hear Janus v. AFSCME, a case which will determine whether employees represented by a public sector union under a collective bargaining agreement, but not full union members in good standing, should be required to pay agency fees to the public sector union. The ruling will potentially determine the future of labor unions in the United States.

At the outset, the controlling law is that of In Abood v. Detroit Board of Education, 431 U.S. 209 (1977). In that case the Supreme Court upheld a Michigan law which permitted public employers to require its employees to pay agency fees in lieu of union dues for employees who did not wish to join the union, against a First Amendment challenge. The rationale in Abood was based on equity, that even the non-union member employees were covered by the collective bargaining agreement between the union and the employer and therefore benefitted from the union representation.^[1] The decision was limited, however, in that the agency fees were capped only to an amount necessary to cover the costs of union activities that benefited the non-union employees.^[2] Moreover, the representative union could not expand the agency fees to cover “the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.”^[3] This solution seemed simple and straightforward: non-union employees paid the agency fee, the union kept dues and agency fees separate and used agency fee funds only to the benefit of the non-union employees. But, one of the primary tools used by unions is political speech, and that is the central issue in Janus.^[4]

The appellant, Mark Janus, argues that there is no distinction between a union engaging in political speech by endorsing candidates and pushing legislation and engaging in the collective bargaining process with the State.^[5] The argument surmises both processes are so inextricably intertwined that requiring an agency fee to be paid by non-union employees mandates political speech, and is contrary to the First Amendment.^[6] If the Supreme Court finds for Mark Janus, what will be the lasting effect on public sector unions, and what are the workable solutions?

A forecast of diminished membership and funding might be the most impactful and lasting effect public sector unions would experience. Diminished membership will likely occur as union members realize that they do not have to pay union dues or an agency fee to be covered and protected under the industry collective bargaining agreement. The problem then becomes the ability of the union to collectively negotiate when funding for negotiation purposes wanes. Thus, hamstringing public sector unions at the negotiation table with state agencies.

            If the Supreme Court determines that the agency fee should not be required, then it should also rule that those employees who elect to work as non-union member employees are designated as at-will employees or individual contractors outside of the protections and coverage of the collective bargaining agreement. Another alternative might be to require more stringent accounting by public sector unions, such as a separate account designated only for agency fees to eliminate any potential comingling of funds, or frequent account reporting to agency fee payers. Either option preserves the integrity of public sector collective bargaining and maintains a more equal playing field

^[1] Abood v. Detroit Board of Education, 431 U.S. 209, 221-222 (1977).

^[2]  Id. at 235-36.

^[3] Id.

^[4] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.), cert. granted sub nom. Janus v. Am. Fed’n, 138 S. Ct. 54, 198 L. Ed. 2d 780 (2017)(“the existence of an Illinois law requiring that he pay fees to the Teamsters, the union required to bargain on his behalf.”); see also Robert Iafolla, Public worker tells top U.S. court that mandatory union fees violate First Amendment, Reuters Legal (Nov. 30, 2017).

^[5] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.); see also Iafolla, supra note 4.

^[6] See Janus v. Am. Fed’n of State, Cty. & Mun. Employees, Council 31, 851 F.3d 746, 748 (7th Cir.); see also Iafolla, supra note 4.

The Illinois State Bar Association recently addressed the issue of whether Lawyers could store client information on cloud-based servers. See ISBA Professional Conduct Advisory Opinion No. 16-06. Given the increasing popularity of cloud-based services like Dropbox, Microsoft OneDrive, and Google Drive as means for easy file storage and sharing, the Illinois State Bar’s Ethics Opinion provides some much-needed guidance for attorneys.

Lawyers using cloud-based services usually contract with third-party internet service providers to store client information in a remote location not controlled by the lawyer. Id. According to the Illinois State Bar Association, the lawyer’s lack of direct control over the servers on which client data is stored raises ethical concerns of competence, confidentiality, and proper supervision of non-lawyers. Id. Although the Illinois State Bar declined to provide specific requirements for lawyers when choosing and utilizing outside providers for cloud-based services, it did provide some useful guiding principles and considerations. See id. A lawyer’s duty to provide competent representation requires that he keep abreast of changes in the law and its practice, “including the benefits and risks associated with relevant technology.” Id. As such, the Illinois State Bar believes lawyers who use cloud-based services must obtain and maintain a sufficient understanding of the technology they are using to properly assess the risks of unauthorized access and/or disclosures of confidential information.” Id. Lawyers are thus required to make a due diligence investigation when selecting a cloud provider. Id. The Illinois State Bar’s Ethics Opinion offers a non-exclusive list of reasonable inquiries and practices for lawyers contemplating cloud-based services. See id. These include:

1. Reviewing cloud computing industry standards and familiarizing oneself with the appropriate safeguards that should be employed;
2. Investigating whether the provider has implemented reasonable security precautions to protect client data from inadvertent disclosures, including but not limited to the use of firewalls, password protections, and encryption;
3. Investigating the provider’s reputation and history;
4. Inquiring as to whether the provider has experienced any breaches of security and if so, investigating those breaches;
5. Requiring an agreement to reasonably ensure that the provider will abide by the lawyer’s duties of confidentiality and will immediately notify the lawyer of any breaches or outside requests for client information;
6. Requiring that all data is appropriately backed up completely under the lawyer’s control so that the lawyer will have a method for retrieval of the data;
7. Requiring provisions for the reasonable retrieval of information if the agreement is terminated or if the provider goes out of business.

Id. A few of the above inquiries and practices underscore the importance of properly supervising the third-party cloud service providers to ensure that their actions do not result in a breach of the lawyer’s duty of confidentiality. The Illinois State Bar Ethics Opinion makes it clear that a lawyer’s due diligence at the time he enters into an agreement with a cloud service provider will be inadequate to avoid an ethical violation should a breach of confidentiality later occur due to a failure of the provider or due to the actions of hackers. Id. This is because a lawyer has ongoing obligations to protect confidential client information and to supervise non-lawyers under Rules 1.6 and 5.3. Id. Lastly, as future advances in technology can render a lawyer’s current reasonable protective measures obsolete, the Illinois State Bar believes that “a lawyer must conduct periodic reviews and regularly monitor existing practices to determine if the client information is adequately secured and protected.” Id.

The Illinois State Bar’s careful consideration of the ethical challenges posed by ever-increasing use of cloud-based services in the legal profession is commendable. It provides helpful guidance to attorneys who are already using cloud-based services as well as those who are contemplating cloud-based services but are unsure how to implement them in an ethically responsible way. In today’s technological world, advisory ethics opinions like Illinois’ are vital as they help maintain the integrity of the legal profession.

Technology and society have changed since the days of yellow journalism. The readership of the New York World and the New York Journal did not extend much further than the New York City area. Any fake news they printed stayed within New York City limits. At present the internet and more specifically social networks allow news organizations to reach a much broader reader base. Most modern-day consumers turn to the internet for their news. Some go to trusted websites others turn to comedy shows, and some go to their social media news feeds. While competing for a reader’s money is fundamentally different from competing for clicks to a website the headlines still need to be attention grabbing to generate the number of views that web page advertisers want to see. This has led to headlines such as ‘Pope Francis Shocks World, Endorses Donald Trump for President’ and the briefly popular ‘The Amish Commit Their Vote to Donald Trump; Mathematically Guaranteeing Him A Presidential Victory’. These and other similarly false articles made their rounds on social media.

In addition to blatant content censorship, Facebook censors in another way. Facebook creates echo chambers. Like what the New York papers were doing in 19th century giving the reader what they like and what reflects their ideals. In the 19th century it was national pride and anti-Spanish, pro-Cuba sentiment. Today the content is specific to each user. Given this awesome power to guide users’ thoughts in a way that makes George Orwell’s 1984 seem like present day the public has demanded that Facebook do what government cannot. Shield them from the fake news that has begun to pollute the echo chambers of their news feeds, people have demanded that Facebook become the arbiters of truth lending more credence to news stories that appear in their news feed. In response to these public outcries for action Facebook has created a method for removing fake news detailed here.

However, the public’s demand for Facebook to further censor their news feed and Facebook’s, admittedly, limited capitulation flies in the face of the First of Amendment. The cure for fake news is not Big Brother sorting the false statements from the true statements for us; it is for ourselves and others to think critically about our sources and if we have reason to doubt and distrust what we have read. Then it is incumbent upon ourselves to speak truthfully to share the facts (not alternative facts) and allow others in turn to form their own opinions of our work. There is no reason to deny the purveyors of fake news a place in our news feed; some people may derive entertainment from reading the outlandish stories in much the same way many find The Onion (http://www.theonion.com/) to be an enjoyable read. The Onion itself is among most prolific purveyors of fake news. I know what I ask is not easy, but it may be necessary to allow the market place of ideas to thrive.

Sources:
A Time Line of Yellow Journalism http://fs2.american.edu/wjc/www/yellowjo/timeline.html
Alcott and Gentzkow: Social Media and Fake News in the 2016 Election Available at: https://web.stanford.edu/~gentzkow/research/fakenews.pdf
How A Prankster Convinced People The Amish Would Win Trump The Election https://www.buzzfeed.com/ishmaeldaro/paul-horner-amish-trump-vote-hoax?utm_term=.qigKA6mdz#.kmdgM9lVw
From Hate Speech To Fake News: The Content Crisis Facing Mark Zuckerberg http://www.npr.org/sections/alltechconsidered/2016/11/17/495827410/from-hate-speech-to-fake-news-the-content-crisis-facing-mark-zuckerberg
What Facebook Is Doing to Combat Fake News https://www.scientificamerican.com/article/pogue-what-facebook-is-doing-to-combat-fake-news/
Facebook Details Its New Plan To Combat Fake News Stories http://www.npr.org/sections/thetwo-way/2016/12/15/505728377/facebook-details-its-new-plan-to-combat-fake-news-stories

Individualized Education Plans (hereinafter IEPs) are critical for the educational progress of children with disabilities. An IEP as defined under 20 U.S.C. § 1414(d)(1) is a “written statement for each child with a disability” that includes information regarding the child’s current education level and performance, annual goals, progress reports on the child’s ability to meet those goals, lists of services and resources in place to be provided to the child, and a description of the extent the child will participate with nondisabled students in classes and activities.

The Supreme Court case, Endrew v. Douglas County School District, decided earlier this year should have had parents dancing in the streets. It held that to meet the obligations of the Individuals with Disabilities Education Act (IDEA), IEPs should be created with the goal of educational progress for a child with a disability in mind. The broad focus of IEPs encourages children with disabilities to become thriving students by increasing access to resources and educational goals. However, the Endrew case, while well-intentioned, did nothing to help parents and guardians of those children with disabilities understand the IEP so that they may ensure that their children are getting access to the resources needed for them to thrive.

IEPs are written in highly technical language, making it difficult for the average parent to understand. As a result, the fiercest advocates for these children are potentially excluded from doing so, simply because they cannot understand the document. Moreover, these parents are forced to spend hundreds of dollars to hire an advocate to navigate them through the IEP process. When it comes to one’s child, most parents are willing to do anything for them and may be prohibited when crucial documents are drafted with such highfalutin and technical language that they cannot fully comprehend.

A parent or guardian knows their child better than anyone. They know what will allow their child to succeed. They have probably been to every doctor and therapy appointment. They have probably researched their child’s particular disability in depth. They have spent years developing strategies and learning what steps to take in order for their child to succeed, but are precluded from advocating for their child simply because of a piece of paper they cannot understand. This piece of paper has such power. It determines a child’s access to resources over the course of the school year.

One concerned parent of a child with autism noted:
They are written in legal language and terminology that most parents do
not understand. Parents tend to assume that the school automatically
knows what the children need and just sign off on the IEPs due to the
language. Additionally, if parents have questions regarding the
document, the school tends to send the message that it’s inconvenient to
take time to over things in a broken down or simplified way. Frankly,
many parents put too much trust in the education administration because
of the jargon used. And not to say that all school systems fall into the
category of doing what’s best for their bottom line, but that’s been our
experience.
-Brittney Effler

Brittney Effler is a mother to a three-year-old boy on the autism spectrum with childhood apraxia of speech about to begin pre-school. He may be on the spectrum, but he is capable of doing just about anything when given the correct resources. A parent knows best, but without being able to assess what an IEP is actually providing for a child, how can a parent advocate zealously for a child? For a child on the spectrum, every resource counts. It could mean the difference between verbal and non-verbal, socializing and making friends, or even gaining a level of independence that every child is entitled to no matter what disability they may have.

The spirit of the Endrew case cannot be achieved for as long as IEPs remain inaccessible to the majority of parents and guardians. The responsibility is on the parents and guardians to advocate for their child to ensure their child makes progress and does not plateau, but they cannot do so if they do not understand the document that states how the school system plans on achieving success for each and every child.

On October 2, 2017, the New Bedford Whaling Museum hosted “Finding Solutions: a Community Opioid Forum.” The forum was intended to provide an opportunity for law enforcement officials, medical workers, and community members to converse about the problem of opioid addiction in Massachusetts. The keynote speaker, Mr. Michael Botticelli, is the current Executive Director of the new Grayken Center for Addiction Medicine at Boston Medical Center. As a person who struggled with addiction himself, Mr. Botticelli talked about significant challenges to recovery, and stated that the ultimate cure to the addiction crisis is community. He identified multiple factors which helped create the problem of opioid addiction, and ways that the same entities who helped create the problem can help solve it.

One of the sources of the problem which may also provide solution is healthcare workers. Mr. Botticelli described the impact of the prescription drug market on today’s opioid crisis with a stark statistic: in 2012, enough opioid-based pain medications were prescribed to provide every American with a bottle. Today, however, safe prescribing practices and use of non-addictive alternative pain management methods have significantly cut down the amount of opioid medications being prescribed. Aside from these safer prescription practices, Mr. Botticelli advocated for earlier intervention at hospitals and by healthcare providers when it becomes apparent that a patient has a drug or alcohol addiction disorder. He stated that the idea of reaching “rock bottom” before treatment can begin is part of the problem. Healthcare workers should strive to identify problems before there is an overdose to provide more effective treatment and potentially diversion from the criminal justice system. Mr. Botticelli said that a person with hypertension is not told to wait for treatment until she has a heart attack, so waiting for people with drug addiction disorders to reach their most severe state prior to treatment is hypocritical.

The failure of the criminal justice system to provide treatment options in lieu of incarceration has also exacerbated the opioid crisis, but Mr. Botticelli stated that the criminal justice system is also the most common source of referrals for the treatment of drug addiction disorders. Although the New Bedford Opioid forum focused largely on the diligent work of local law enforcement and healthcare workers, it is critical for legal minds to remember that they can make a difference too. Many of the issues faced by people with addiction disorders are the everyday issues of marginalized populations, but exacerbated by a chemical dependence. As zealous advocates, lawyers should remember that beyond preventing their clients from succumbing to eviction, criminal liability, and other legal maladies, they are also in a unique position to be able to determine whether their client has a drug or alcohol problem. Zealous advocacy is not merely solving a client’s discrete legal problem, but helping the client find solutions to remain out of trouble.

In sum, Mr. Botticelli is one hundred percent on point in emphasizing community. Drug addiction disorders have impacted New England for long enough. Every person in nearly every profession can find a way to make a positive change, even if it’s only in their attitude.