Filed July 30: (In re Russell James Stewart).
This is a decision of the Illinois Review Board which hears appeals from decisions of the Illinois Hearing Board. The respondent was accused (and admitted) to falsely notarizing the signature of a party to a settlement agreement and admitted to making false statements to the court in order to obtain a prove-up based upon that settlement agreement.
The Review Board explained:
“Eva and Andrew Janas consulted with Respondent on October 21, 2010 because Andrew was experiencing business difficulties. They discussed the possibility of obtaining a divorce allegedly so that Eva could maintain possession of a condominium in Florida and Andrew could file for bankruptcy, but Eva did not understand the discussion to be approval to proceed with that action. At no time did Respondent advise Eva to seek independent counsel.
The Administrator alleged that following this meeting, Respondent prepared, on behalf of Andrew, documents to proceed with the divorce, including a marital settlement agreement. Respondent initially claimed, including in his Answer to the Administrator’s Complaint, that he gave a draft marital settlement agreement to Eva at the October 21, 2010 meeting and that she signed it in his presence. When called as an adverse witness during the Administrator’s case at the disciplinary hearing, Respondent again asserted that Eva signed the marital settlement agreement at this meeting. However, after the Administrator prepared to call a forensic expert to testify that an examination of Respondent’s computer revealed that he had not prepared the marital settlement agreement as of October 21, 2010, Respondent finally conceded that he had not drafted the martial settlement agreement as of October 21, 2010.
After the meeting on October 21, 2010, Eva went to Florida. She did not meet with or speak to Respondent again. On November 1, 2010, unbeknownst to Eva, Respondent filed a petition for dissolution of marriage on behalf of Andrew Janas. Respondent filed a pro se appearance for Eva. Respondent then drafted a marital settlement agreement. He testified he gave the marital settlement agreement to Andrew and asked Andrew to have Eva sign it. Sometime thereafter, he testified that Andrew returned a signed agreement to Respondent. Respondent notarized the marital settlement agreement without witnessing Eva’s signature to the agreement, in violation of the provisions of the Illinois Notary Act, and without talking to her to confirm that she had signed it. He proceeded to file the notarized marital settlement agreement with the court in the dissolution matter and obtained a judgment of dissolution. He did not give notice to Eva of the prove-up date and he did not advise her of the entry of the judgment of dissolution.
The Hearing Board found that Respondent engaged in criminal conduct by violating provisions of the Illinois Notary Act in violation of Rule 8.4(b). The Hearing Board also found Respondent engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(c) by intentionally violating the Notary Act and by deliberately failing to notify Eva of the filing of the dissolution matter, the prove-up date, or the entry of the judgment of dissolution.
On January 10, 2011, Respondent appeared before Judge Kathleen Kennedy for the prove-up in the Janas dissolution matter. Judge Kennedy asked Respondent if Eva had been notified of the hearing. Respondent responded, “Absolutely”. He then falsely said that he had talked to Eva the previous week and falsely stated that Eva had signed the marital settlement agreement in his office earlier in the month.
As set out in greater detail in the Hearing Board’s Report, Respondent called Andrew as a witness during the prove-up hearing and elicited testimony Respondent knew was false about Eva’s purported execution of the marital settlement agreement in Respondent’s office and about the receipt of rent for the condominium in Florida. The court entered a judgment for dissolution based on Andrew’s testimony.
Eva did not learn of the dissolution matter until May or June of 2011. She hired a lawyer, who ultimately vacated the judgment of dissolution.”
The Hearing Board found violations of Rules 8.4(b) and 8.4(c). There were also additional rule violations for the false statements to the court, including Rule 1.2(d) (criminal or fraudulent conduct), Rule 3.3(a) (knowingly eliciting false testimony from a witness), Rule 8.4(c) (dishonest conduct) and Rule 8.49(d) (undermined the judicial process).
Comment: Given the conduct the sanction of six months is remarkably lenient. Also, lawyers need to be aware that the ARDC knows that lawyers sometimes forge documents (to make it appear that something was disclosed to a client when it was not disclosed) and that the ARDC retains forensic witnesses who know how to examine computer hard drives.
Edward X. Clinton, Jr.
Legal Ethics Lawyer 