An ARDC Hearing Board panel has recommended a suspension for an attorney who made false or reckless statements impugning the integrity of a judge. Here is a quote from the excellent opinion of the panel:
“The Administrator proved by clear and convincing evidence that Respondent sent three emails to Magistrate Judge Finnegan’s email account containing statements about Magistrate Judge Finnegan’s integrity that were false or made with reckless disregard as to their truth or falsity. By sending the inappropriate emails, particularly after being instructed not to do so, Respondent engaged in conduct that disrupted the tribunal and prejudiced the administration of justice…..
Respondent has been licensed to practice in Illinois since 2006. She is also licensed in Texas and Michigan. (Tr. 54-55).
Barry Epstein hired Respondent in 2012 to represent him in a dissolution proceeding filed by Paula Epstein. In 2014, Respondent filed a complaint on Barry’s behalf in the United States District Court for the Northern District of Illinois, alleging that Paula and her attorney, Jay Frank, violated federal law by accessing Barry’s private emails without his authorization. (Tr. 55). Magistrate Judge Sheila Finnegan (Judge Finnegan) supervised discovery in the federal proceeding. Judge Finnegan maintained an email account known as the “proposed order account”. The charges before us arise from three email messages Respondent sent to the proposed order account and others involved in the Epstein proceedings. (Tr. 56).
Respondent sent the first email at issue on April 18, 2017, after Judge Finnegan denied her emergency motion for an extension of time to take Paula’s deposition. Respondent sent the email
to the proposed order account, opposing counsel Scott Schaefers, and Scott White, the courtroom deputy. It stated as follows in relevant part:
Today in court, no matter what I said to you, you had already made up your mind, and even questioned my sincerity with regard to my preparation for upcoming trial.
. . . since the beginning, you never seem to doubt anything he [Schaefers] says, as you appear to doubt me. Still, I stated to you in open court that “I don’t want to be hated” for doing my job, but it sure seems that way, as I never get a break. Scott is the lucky guy who senses same as he can just pick up the phone to call you knowing he will get his way…or for so-called the Posner Defense2.
It’s not fair that my client (and I) is [sic] being treated badly for suing his wife/ex wife, and everyone is protecting Paula – why? Since when does “two” wrongs make a “right”? [sic] How am I to prove my case if I am not given a fair chance to do my work, properly.
(Adm. Ex. 1).
The following day, Judge Finnegan instructed Respondent that the parties were not to use the proposed order account to argue the merits of a motion, share their feelings about a ruling, or talk generally about the case with her. She told Respondent her email was improper and directed her not to send any such emails in the future. (Adm. Ex. 1). Respondent received and understood Judge Finnegan’s instructions. (Tr. 69-70).
On June 15, 2017, Respondent filed a motion to extend discovery and for leave to depose Jay Frank. Judge Finnegan denied the motion. Allison Engel, Judge Finnegan’s law clerk, emailed a copy of Judge Finnegan’s order to Respondent and Schaefers at 6:37 p.m. on June 23, 2017. Two hours later, Respondent sent an email to Engel, Schaefers, and the proposed order account which stated as follows, in relevant part:
I’m very upset, I do not agree with Judge Finnegan’s order and I will depose the former co-defendant, Jay Frank, despite the fact this court is protecting him and his co-conspirer! Scott Schaefers had no standing to challenge my subpoena to depose
Jay Frank! I’m entitled to depose him! And I will call him to testy [sic] at trial to show the world what a corrupt lawyer he is! And the judges who protect this criminal by squeezing the discovery deadlines!!! No no no!
This is outrageous order of Judge Finnegan and it will be addressed accordingly! Judges are helping the criminal to escape punishment by forcing to shorten all deadlines!!!
This Judge is violating my client’s rights first by the truncated discovery deadlines and now helping Plaintiff to escape punishment for wrongs she committed!
I’m outraged by the miscarriage of justice and judges are in this to delay and deny justice for my client!
I’m sickened by this Order!!! (Adm. Ex. 2).
On June 26, 2017, Respondent sent another email to Engel, Schaefers, and the proposed order account, which stated as follows in relevant part:
Plaintiff’s motion is not late just because this court decided not to extend discovery deadlines, to protect the Defendant! I have asked this court numerous times for an extension of all cutoff deadlines, without avail. Take this into account when drafting your flawed order.
For anyone to insult me in this degree calls questions [sic] this court’s sincerity and veracity. How dare you accuse me of not having looked at the SC docket regularly.
How do you know I did not see the SC order???? Where do you get this information? Exparte communications with Defendant’s attorney, Scott? – smearing dirt behind my back?
The more I read this order, again and again, I am sick to my stomach, and I get filled with anger and disgust over this ‘fraudulent’ order by this court!
You both, Allison and J. Finnegan, have done me wrong, and depicted me very poorly in your public order. How dare you do that to me?!
What goes around comes around, justice will be done at the end! I wonder how you people sleep at night? Including Scott!(Adm. Ex. 3).
On June 27, 2017, Judge Finnegan entered an order admonishing Respondent for violating her directives related to the proposed order account and making highly inappropriate statements. Judge Finnegan directed Respondent to immediately cease all email communication with her and her staff. (Adm. Ex. 4).
Respondent acknowledged it was wrong to send the emails but presented numerous explanations for her conduct. She testified she was under a great deal of stress due to a short discovery schedule in the federal case, her client’s abusive behavior, and a dispute with a former partner. (Tr. 190-91, 213-217). She further testified she made poor word choices because English is not her native language and she wrote the emails “in the heat of the moment” when she felt the court was insulting her. In addition, she testified that the purpose of the proposed order account was unclear. (Tr. 164, 292). With respect to the second and third emails, she did not think she was violating Judge Finnegan’s directives because she addressed the emails to Judge Finnegan’s law clerk rather than to Judge Finnegan. (Tr. 68, 77).
Respondent’s belief that she and her client were not being treated fairly was based upon the entirety of the record, including the short discovery schedule and rulings that were not favorable to her client. (Tr. 67-68).
After the Epstein matter ended, Judge Finnegan submitted a complaint about Respondent’s conduct to the Executive Committee of the United States District Court for the Northern District of Illinois (Executive Committee). On January 22, 2018, the Executive Committee suspended Respondent from the general bar for six months and the trial bar for twelve months. The Executive Committee found that Respondent used “unprofessional, inappropriate, and threatening language” in her emails. In order to be reinstated, Respondent was required to demonstrate that she obtained professional assistance with managing her anger and complying with the Rules of Professional Conduct. (Adm. Ex. 7). The Executive Committee reinstated Respondent to the general bar on August 7, 2018 and the trial bar on June 11, 2019. (Adm. Exs. 9, 10).
C. Analysis and Conclusions Rule 8.2(a)
Attorneys may express disagreement with a judge’s rulings but, as officers of the court, have a duty to protect the integrity of the courts and the legal profession. In re Walker, 2014PR00132, M.R. 28453 (March 20, 2017) (Hearing Bd. at 19-20). Consequently, Rule 8.2(a) prohibits an attorney from making a statement concerning the qualifications or integrity of a judge that she knows to be false or with reckless disregard as to its truth or falsity. Ill. R. Prof’l Conduct 8.2(a). Respondent is charged with violating Rule 8.2(a) when she made the statements set forth above impugning Judge Finnegan’s integrity. We find the Administrator proved this charge by clear and convincing evidence.
It is undisputed that Respondent made the statements at issue. The fact that she made them in email messages rather than in a pleading or document available to the public makes no difference. Rule 8.2(a) applies broadly, with no limitation as to where or how a statement is made. The statements at issue clearly pertained to Judge Finnegan’s qualifications and integrity.
Respondent not only expressly questioned Judge Finnegan’s “sincerity and veracity” but accused her of protecting and assisting criminal conduct, participating in improper ex parte communications with attorney Schaefers, and entering a “fraudulent” order. These statements unquestionably crossed the line from expressing disagreement with rulings to making unsubstantiated accusations that maligned Judge Finnegan’s honesty. An attorney violates Rule 8.2(a) by making such statements without a reasonable basis for believing they are true. There is no such reasonable basis on the record before us.
Although Respondent disputes that she knowingly or recklessly made false statements, she had no objective, factual basis for her comments. Subjective belief, suspicion, speculation, or conjecture does not constitute a reasonable belief. Walker, 2014PR00132 (Hearing Bd. at 21).
Here, Judge Finnegan, who is presumed to be impartial, set forth the factual and legal reasons why she denied Respondent’s requests to extend discovery. For Respondent to assert that Judge Finnegan made her rulings to deny justice to Barry Epstein and protect criminal conduct, rather than for the reasons articulated in her orders, was unreasonable and untenable. Respondent was not entitled to decisions in her client’s favor, and a judge’s rulings alone “almost never constitute a valid basis for a claim of judicial bias or partiality”. See Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002). Likewise, there are no objective facts whatsoever to support Respondent’s accusations that Judge Finnegan’s conduct was “fraudulent” or that she engaged in improper ex parte communications.
Accordingly, we find that the Administrator established by clear and convincing evidence that Respondent made statements concerning Judge Finnegan’s qualifications and integrity that were false or made with reckless disregard for their truth or falsity, in violation of Rule 8.2(a).”
Comment: Every lawyer will confront situations where the court rules in a manner that is unexpected or unforeseen. It is a challenge in these situations to control your temper and act in a professional manner. As lawyers we owe our clients a duty to render effective advocacy and that duty requires us to be courteous to the court. We all make mistakes and we all can become frustrated with the judicial process. That is no excuse for attacking the integrity of a judge or the judicial system. When you feel yourself becoming angry or intemperate, that is the time to take a step back and apologize if you have made an intemperate remark.
If you have a question about an ethics issue, do not hesitate to call us. We can often provide some assistance. The earlier you make that call the better, as many errors can be mitigated or corrected.
Ed Clinton, Jr.