Lawyer Reports Adversary To ARDC And Is Charged For Using The Disciplinary Process To Gain A Civil Advantage

BEFORE THE HEARING BOARD:

Rule 8.4(g) prohibits a lawyer from presenting professional disciplinary charges to gain an advantage in a civil matter. Violations of this rule are rarely charged perhaps because this type of ARDC action causes lawyers to decline to report issues to the ARDC.

In this particular case, In re Linda Rose Montgomery, 2014 P 101, the ARDC alleges that Montgomery defended an action for past due rent by arguing that the lease was a forgery and that the opposing lawyer was involved in a “conspiracy” to forge the lease.  The trial court rejected these allegations and entered judgement against Mongomery’s client for past due rent. Despite having made these rather bold accusations, Montgomery did not take any discovery or attempt to obtain an expert witness to ascertain whether or not the lease was forged. The court entered judgment for past-due rent and all of Montgomery’s post-trial motions were denied.

The complaint alleges as follows:

“15. On October 17, 2012, the Court denied Respondent’s motion to vacate in case number 10 LM 1633 and all the related and referenced motions.
16. On October 17, 2012, after the court had denied all of Respondent’s post-trial motions in case number 10 LM 1633, Respondent signed and forwarded to the Administrator a request for an investigation of Wentz. [Wentz was the opposing lawyer]. In that request, Respondent alleged that it was Wentz who had forged Stegeman’s signature on the lease relating to the property that was the subject of case number 10 LM 1633, and which accompanied the five-day notice issued to Samuels and Coleman, and that Wentz had presented the purportedly forged lease as evidence at trial. Respondent also alleged that Wentz had conspired with the court reporter who had transcribed the trial proceedings to alter the transcript by not including various (mostly unspecified) comments Respondent believed had been made by Judge Polito. For example, Respondent alleged that during the trial “Judge Polito yelled, very loudly, ‘We will not be hearing any more witnesses,’ or something close to that” and that “this yelled statement did not show up in the transcript” and had been “edited out.” In the request for investigation of Wentz, Respondent further requested that the Administrator retain a handwriting expert to review the lease in an effort to prove that Wentz had forged the signatures on the lease, and that the Administrator assist Respondent in “obtaining an independent transcription of the record of proceedings” in case number 10 LM 1633.
17. Respondent’s statements in the request for the investigation of Wentz, as set forth in paragraph 16, above, were false. Respondent knew or should have known that the statements that Wentz forged the signature on the lease were false, because Respondent knew that Wentz denied on behalf of this clients that the signatures on the lease were forged, because at no time during the pendency of case number 10 LM 1633 did Respondent plead that Wentz forged the signatures on the lease or conduct any discovery in an effort to prove that Wentz, or any other individual, forged the signatures on the lease, and because Respondent otherwise had no reasonable basis to believe that Wentz forged the lease. Further, Respondent knew or should have known that the statement that Wentz conspired with the court reporter to alter the transcript of the trial proceedings was false because the alleged transcript was certified by an official court reporter for the circuit court of Will County to be a true and accurate transcript of the certified electronic recording of the proceedings of case number 10 LM 1633, and because Respondent otherwise had no reasonable basis to believe that Wentz conspired with the court reporter to alter the transcript.”
In addition to the Rule 8.4(g) charge, the ARDC also charged Montgomery with violations of Rule 3.1 (defending a claim on a frivolous basis), 4.4(a) (improper use of a disciplinary charge) and 8.4(c) (fraud and dishonesty).
Comment: Obviously, these are allegations that have not bee proven. Until they are established before a finder of fact, no one should take them as true. 
This case is troubling to me. Why if you believe that a document is a forgery, not retain a handwriting expert to offer an opinion? Why make allegations such as these in a routine matter without attempting to obtain a factual basis for those allegations? Whether or not Montgomery’s purpose was improper, it is terrible strategy to accuse someone of wrongdoing without the evidence to back that up.
Edward X. Clinton, Jr.

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