Negligence Becomes More Serious When Attorney Allegedly Covers Up His Own Negligence

BEFORE THE HEARING BOARD:

On December 12, 2014, the ARDC filed a complaint against Robert Alan Habib, 2014 PR 00156. The complaint arises out of the attorney’s representation of a client before the City of Chicago Commission on Human Relations (CCHR) during the period from 2007 to 2009. The client was named Dan McAuley.

The material allegations are as follows:

12. On March 19, 2009, the Commission issued an Order appointing a hearing officer and commencing the hearing process, setting May 7, 2009 as the date for a required prehearing conference.

13. At no time between March 19, 2009 and May 7, 2009, did Respondent forward the Order setting the prehearing conference to McCauley or otherwise inform McCauley of the prehearing conference.

14. Pursuant to a CCHR regulation, attendance at the prehearing conference is mandatory and failure to attend can result in sanctions, including entry of a default judgment on liability. (CCHR Regs. 235.310(d), 240.120).

15. On May 7, 2009, neither Respondent nor McCauley appeared at the prehearing conference and an Order of Default was entered on May 15, 2009, as to liability, with the allegations of the complaint deemed to have been admitted and any defenses considered waived. The default order stated that a motion to vacate or modify the order could be filed and the order of default could be vacated, if the motion “establish[ed] good cause for the noncompliance which formed the basis for the sanctions imposed.”

16. On May 20, 2009, Respondent filed a motion to vacate the order of default on behalf of A Taste of Heaven and not McCauley. The basis of Respondent’s motion was his failure to docket the prehearing date, resulting in his failure to attend the prehearing.

17. On July 6, 2009, the Administrative Hearing Officer entered an order denying Respondent’s motion to vacate the order of default, stating that Respondent’s failure to docket the prehearing conference “does not constitute good cause.” The July 6, 2009 order also stated that since Respondent had not filed any motion to vacate on behalf of McCauley, the order of default also remained as to him.

18. At no time after May 7, 2009, did Respondent advise McCauley that an order of default had been entered because of his failure to appear at the prehearing conference, nor did he ever advise McCauley that his motion to vacate the order of default was unsuccessful and they would not be able to present any evidence at hearing, other than regarding damages.

19. On December 3, 2009, the Hearing Officer issued an order setting the Administrative Hearing for March 3, 2010. Respondent appeared “under protest” and argued that the Hearing Officer’s rulings on the default denied McCauley and A Taste of Heaven due process. At no time did Respondent advise McCauley of the hearing and Respondent presented no evidence or witnesses with regard to damages at the hearing.

20. On or about August 18, 2010, the Commission entered a Final Order on Liability and Relief, finding that Flores had established that her termination had been motivated by her protected classes (age and race) and assessed damages for lost wages in the amount of $6,750, $20,000 for emotional distress, and $25,000 in punitive damages, in addition to a fine of $250 against McCauley and a $250 fine against A Taste of Heaven. At no time after August 18, 2010 did Respondent provide McCauley with a copy of the decision, nor did he even advise McCauley of the decision on liability and damages. Instead, in or about August 2010, Respondent advised McCauley that “things hadn’t gone well in court”.

21. On October 8, 2010, Flores’ attorneys filed a petition for attorney fees. Respondent did not file a written response or in any way contest the fee petition. On January 19, 2011, the Commission entered a final order on attorney fees and costs, awarding attorney fees of almost $70,000 to Flores’ attorneys.

22. On February 22, 2011, Respondent filed a Complaint for Writ of Certiorari in the Circuit Court of Cook County, Chancery Division, Taste of Heaven, et al. v. CCHR, et al., 11 CH 06655. The Complaint sought administrative review of the final orders issued by the Commission, and to quash the record of proceedings.

23. On September 23, 2011, the Circuit Court entered an order, confirming the Commission’s final order, finding that McCauley’s and A Taste of Heaven’s due process rights were not violated and further finding that there was sufficient evidence presented at the hearing to support the Commission’s order. Respondent did not forward the complaint or the Circuit Court order to McCauley, but told him he was going to appeal.

24. On October 18, 2011, Respondent filed a Notice of Appeal of the Chancery Court’s decision denying the Plaintiffs’ Petition for Writ of Certiorari in the Appellate Court of Illinois, First Judicial District, Second Division. The appeal was docketed as Taste of Heaven, et al. v. CCHR et al., No. 1-11-3125.

25. On August 28, 2012 the Appellate Court entered an Order confirming the Commission’s order. (Taste of Heaven, et al. v. CCHR and Flores, 2012 IL App. 1st 11 113125- (August 28, 2012).

26. At no time did Respondent give McCauley a copy of the Appellate Court Order, nor did he advise McCauley of the Appellate Court Order, which Order described in detail the procedural history of the case, as described above.

27. On or about September 25, 2012, Respondent went to the bakery and told McCauley that they had had been treated unfairly by the Commission, the Circuit Court and again by the Appellate Court. Respondent did not explain that there were no further appeals and did not explain the basis of the order, as set forth in the written decision. Respondent’s failure to explain to McCauley that there were no further appeals and the basis for the order was false and misleading because Respondent knew that the Appellate Court Order outlined in detail his improper handling of the matter.



The ARDC charged three rule violations: Rule 1.1 (competence); Rule 1.4(a)(3) (failing to keep the client reasonably informed); and Rule 8.4 (c) (conduct involving dishonesty) for the “by conduct including his failure to advise McCauley of Respondent’s failure to attend the prehearing conference and the resulting default order, by making affirmative misstatements to McCauley, and by failing to inform McCauley of the scheduled prehearing conference and the CCHR hearing and by failing to forward copies of the orders entered by the CCHR which detailed Respondent’s responsibility for the adverse rulings.”


Comment: When you make a mistake or miss a deadline, you must tell the client promptly about the error and the means of rectifying the error. Failure to inform the client of bad news or an error is obviously unfair to the client and wrongful. Here, the failure to inform the client of the default and other rulings turned a negligence case into a disciplinary case.


Disclaimer: this report is based upon allegations in a complaint. The allegations have not been tested or found to be true by a finder of fact. The attorney may have a defense to the case that is not apparent from the face of the complaint.


Edward X. Clinton, Jr.



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