ARDC Review Board Increases Proposed Discipline of Novoselsky

Filed April 10:

The ARDC has two pending cases against David Novoselsky, a well-known Chicago attorney. In this case, which I call Novoselsky I, the ARDC Review Board has affirmed the decision of the ARDC Hearing Board to suspend Novoselsky for six months. But the Review Board also increased the penalty as well. It states:

Respondent’s conduct in the Zvunca case also warrants a suspension. In other similar cases, the Court has imposed suspensions upon attorneys for engaging in a pattern of loud and disparaging remarks to other attorneys. See e.g., In re Guadagno2010PR0065, petition for discipline on consent allowed, No. M.R. 24962 (Jan. 13, 2012)(five month suspension, stayed after thirty days by probation, for making homophobic slurs to opposing attorneys); In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010), recommendation adopted, No. M.R. 24030 (Sept. 22, 2010)(suspension of six months and until further order for making an improper statements to a lawyer about the lawyer’s religion and in making statements about the integrity of two judges that were false; respondent had practiced for thirty five years without incident but failed to apologize for his remarks); In re O’Shea , 02 SH 64 (Review Bd., July 16, 2004), petitions for leave to file exceptions allowed, No. M.R. 19680 (Nov. 17, 2004)(five month suspension for threatening opposing counsel outside of the courtroom and in writing and for engaging in one conflict of interest). While no disciplinary case presents the identical findings of misconduct involving a pattern of engaging in violations of Rule 4.4 and a pattern of engaging in a failure to communicate with several clients, failing to return unearned fees and engaging in dishonesty, the six month suspension as recommended by the Hearing Board is not out of line with the Court’s precedent.

We are particularly troubled by Respondent’s conduct in the Zvunca litigation. His attacks on opposing counsel and a court deputy displayed an utter disregard for the integrity of the courts. While he may still believe that he was provoked, the record indicates otherwise. We find his conduct to be indefensibly outrageous. Accordingly, we believe that our sanction recommendation must reflect the goals of the disciplinary process and must serve to protect the public from similar behavior, to protect the integrity of the courts, and to deter similar behavior by other attorneys who might be tempted to lash out against others with the use of vulgarity and personal attacks in court proceedings.

Respondent’s conduct is aggravated by the fact that he has not recognized that his repeated impulses to strike out verbally in anger were inappropriate or unprofessional. We share the Hearing Board’s concerns regarding Respondent’s repeated refusal to acknowledge that he did anything wrong. He expressed absolutely no remorse and the Hearing Board found that his testimony at hearing was “incredible”. The Hearing Board was particularly troubled by the fact that Respondent “had an excuse for nearly everything he did or did not do, regardless of whether the actions related to a charge of misconduct.” The Hearing Board noted that this tendency was concerning given the “overwhelming evidence of misconduct, especially regarding Respondent’s failure to properly communicate with his clients and his failure to put contingency fee agreements in writing.” (Hearing Bd. Report, pp. 104-106).

Given the nature of the misconduct when coupled with Respondent’s complete lack of understanding of his obligations and his propensity to resort to dishonesty during his testimony at his disciplinary hearing, we believe that the six month suspension recommended by the Hearing Board should continue until further order of the Court. The Court has imposed a suspension until further order of the Court where there has been a lack of evidence that the respondent is willing or able to meet professional standards of conduct in the future. See, e.g., In re Houdek, 113 Ill.2d 323, 327, 497 N.E.2d 1169 (1986); In re Bless, 2010PR00133 (Review Bd., Oct. 30, 2014), approved and confirmed, No. M.R. 27134 (March 12, 2015). We believe that a suspension that continues until further order of the Court better serves the purposes of discipline and better protects the public.
The Administrator contends that this Board’s recommendation should include an order that Respondent pay restitution to the Shabos and to Vlastelica for his unearned fees. We agree. The Hearing Board unequivocally found that Respondent had not earned the $15,000 in each matter. We do not believe that the pendency of civil litigation requires that the Court refrain from ordering that Respondent return the monies that clearly do not belong to him. See, e.g., In re Giamanco, 97 SH 27 (Review Bd., Feb. 17, 1999), approved and confirmed, No. M.R. 15818 (May 26, 1999); In re Larry, 07 CH 19, (Review Bd., Aug. 11, 2009), petition for leave to file exceptions allowed, No. M.R. 23380 (Jan. 21, 2010).”
Obviously, the suspension that continues until further order of court is a huge blow to the respondent who must now petition to show that he should be reinstated.
The Zvunca litigation has been the subject of several court opinions, including an opinion of the Appellate Court reversing numerous orders in the Zvunca case. The Appellate Court also affirmed an order sanctioning Novoselsky. One could question the need for a second Novoselsky case also arising out of the Zvunca matter.

Update: On September 21, 2015, the Illinois Supreme Court agreed to a six-month suspension but did not order that the suspension continue until further order of court. The result is a win for Novoselsky.

Edward X. Clinton, Jr.

‘via Blog this’

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