Settling With The City

By Sam Singer

Last month Chicago police superintendent Jody Weis asked the city to rethink the way it handles police misconduct claims. At his request, the Law Department amended its settlement policy to reflect a more battle-ready posture. City lawyers will no longer have discretion to settle small claims on behalf of police officers. Now lawyers will need the city's permission, which presumably won't come, and until it does they will aggressively litigate each misconduct claim that lands on their desks.

By "misconduct claim" I mean a suit against a police officer arising from actions taken in carrying out his official duties. (You may have heard these suits described as "brutality claims," but while appropriate on rare occasions, that label is under-inclusive and on the whole a bit brash). Because misconduct suits involve official police conduct, the city is on the hook for most of the damages, which explains why city lawyers can typically represent the joint interests of the city and the accused police officer in one proceeding.

The city has understandably grown weary of elective settlements. Plaintiffs' attorneys have learned to game the city's settlement policy by bringing - and in some cases manufacturing - claims that cost more to litigate than to settle. In this way they can effectively force payouts by presenting lawyers with the choice of spending, say, $10,000 to try a misconduct case or $7,000 to make it go away.

But if costly, the city's old settlement policy had some indisputable, if often overlooked, benefits.

For one. the policy helped city lawyers manage their caseloads, which improved the quality of their advocacy. In this way the settlement policy operated like a triage system, allowing lawyers to dispose of strike suits while directing time and resources toward big budget cases.

More significantly, the policy helped protect police officers from punitive damage awards. The city doesn't reimburse punitive payouts, which can only be imposed by a court, so each time the Law Department takes a misconduct case to trial it exposes the defendant officer to significant out-of-pocket expenses. To prevent this City lawyers have made a practice of settling high-risk punitive claims before they get to trial.

Set aside the more freighted question whether Chicago law enforcement might serve to benefit from greater exposure to punitive damages. Of more immediate concern for the city are the ethical issues raised by a policy that restricts city lawyers in their ability to represent their clients' best interests.

The state's professional conduct rules prohibit lawyers from representing a client when that representation will be "materially limited" by representation of another client. Without discretion to settle high-risk punitive claims, conflicts of this sort will emerge in police misconduct cases with increasing regularity.

As I understand, the city has an answer for those who would question its institutional ethics. To avoid conflicts, the city plans to encourage officers facing punitive damages to seek outside representation. Instead of defending officers in punitive cases and then limiting the City's reimbursement to compensatory damages, city lawyers will push punitive damage claims outside the Law Department, where officers will be left to pay the costs of their defense along with any punitive damages awarded at trial. Under this logic, the city would address the limits of its representation in punitive cases by ending its representation altogether. That seems backwards even by Chicago standards.

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Sam Singer is the Beachwood's legal correspondent. He welcomes your comments.

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Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.

* Taking Government Out Of The Marriage Business. Separating church and state.

* Chicago's Disorderly Conduct. Dissent allowed even in Daleyland

* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.

* Is Blago A Flight Risk? We asked; a judge said yes.

* Obama's Torture Test. Politically calculating.

* Replacing Souter. Signs point to Kagan.

* Going to Pot. The states vs. the feds.

* The Sotomayor Show. A guide for viewers.

* Chicago's Still Valid Gun Ban. Chicago vs. D.C.

* The Gay Rights Gamble. What happened in California may no longer stay there.

* Legal Fiction. When judges go noir.

* Obama's Justice. The president's curious habit.

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