The ARDC Hearing Board recommended a one-year suspension for an attorney who engaged in frivolous litigation and assisted a client in committing bankruptcy fraud. In re Xydakis, 2021PR00104. The order is 81 pages long. I have done my best to summarize the key findings of the order and most important rule violations.
One of the charges asserted that the Respondent engaged in frivolous litigation on behalf of a client, Marshall Spiegel, who was the Secretary of the Board of a condominium association. “Count I charged Respondent with (1) bringing or defending a proceeding, or asserting or controverting an issue therein, with no basis for doing so that is not frivolous; (2) making statements of material fact or law to atribunal which the lawyer knows are false; (3) using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person; (4) engaging in conduct that is prejudicial to the administration of justice; and (5) making statements with reckless disregard as to their truth or falsity concerning the integrity of a judge, in violation of Illinois Rules of Professional Conduct 3.1, 3.3(a)(1), 4.4(a), 8.4(d), and 8.2(a), respectively, arising from his bringing and maintaining lawsuits on behalf of his client against a condominium association board and other individuals and entities.”
The Hearing Board summarized the litigation as follows:
In the fall of 2015, the president of the board of directors of the 1618 Sheridan Road Condominium Association (“Association”) resigned. At that time, Marshall Spiegel was serving as secretary of theAssociation’s board and Valerie Hall was serving as treasurer. Following the president’s resignation, Spiegel declared himself acting president, over Hall’s objections. (Ans. at par. 2.)
On October 22, 2015, Respondent filed a complaint on behalf of Spiegel, the Association, and Chicago Title Trust Co., seeking to remove Hall from the Association’s board of directors. The complaint alleged that,because Hall’s condominium unit was owned by a trust rather than by Hall herself, she was not considered a unitowner and therefore could not be a board member. The lawsuit, filed in the Chancery Division of Cook County Circuit Court, was docketed as case number 15 CH 15594. (Ans. at par. 4; Adm. Ex. 1.)
On October 26, 2015, Respondent filed a second lawsuit on behalf of the same plaintiffs for defamation,invasion of privacy, and breach of contract against Hall. The second lawsuit, filed in the Law Division of CookCounty Circuit Court, was docketed as case number 15 L 10817, and, like the first, sought to remove Hall from the Association’s board. It also added a new defendant and additional counts, including allegations that Hall wrongfully accused Spiegel of stealing her suitcases and filed a false police report in which she accused Spiegel of taking lawn furniture. (Ans. at par. 6; Adm. Ex. 3.)
On October 30, 2015, Respondent filed a first amended complaint in case number 15 L 10817, adding two new defendants and additional counts. (Ans. at par. 7; Adm. Ex. 4.) On November 2, 2015, Hall filed an answer to the first amended complaint, and attached the deed to her condominium unit. She also filed acounterclaim in which she sought a declaration that, among other things, she was a unit owner and therefore qualified to sit on the Association board; that all of the board’s actions following the former president’s resignation were proper; and that Respondent was not the Association’s authorized legal counsel and therefore had no authority to act on behalf of the Association. (Ans. at par. 8; Resp. Ex. 57.) Also on November 2, 2015, Respondent voluntarily dismissed case number 15 CH 15594. (Ans. at par. 5.)
On November 24, 2015, Respondent filed a second amended complaint in case number 15 L 10817, removing the Association as a plaintiff and adding an additional defendant and new counts, including allegations that one of the defendant unit owners spied on Spiegel and moved large water cooler bottles in front of Spiegel’s door. (Adm. Ex. 7.) On December 2, 2015, Respondent filed a counter and third-party complaint onbehalf of the plaintiffs in case number 15 L 10817 against Hall, her counsel, and the Association’s counsel,alleging that they interfered with Spiegel’s business expectancy with Respondent by filing a counterclaim that caused Spiegel’s insurance carrier to refuse to hire Respondent to defend Spiegel, which caused Spiegel to have to expend his own funds. The next day, Respondent filed a third amended complaint against the same five defendants named in the second amended complaint but adding additional counts, including allegations that one of the defendants installed horizontal blinds without prior board approval. (Ans. at par. 9; Adm. Exs. 8, 9.)
On December 31, 2015, the Association filed a complaint for declaratory and injunctive Relief against Spiegel in the Chancery Division of Cook County Circuit Court, docketed as case number 15 CH 18825. (Ans.at par. 11.) On January 11, 2016, the Association moved the court for a temporary restraining order (TRO) torestrain Spiegel from continuing to prevent the board from functioning. The court granted the Association’s TRO. (Ans. at pars. 11-13; Adm. Ex. 10.)
On February 8, 2016, Respondent filed a fourth amended complaint in case number 15 L 10817, which alleged 25 counts against 10 defendants, including Hall’s counsel and the Association’s counsel. As to theattorney-defendants, the fourth amended complaint contained the same allegations regarding interference with business expectancy that were raised in the earlier- filed counter and third-party complaint. (Ans. at pars. 15, 16; Adm. Ex. 17.)
On April 8, 2016, Respondent filed an additional lawsuit in the Law Division of Cook County CircuitCourt, which was docketed as case number 16 L 3564. (Ans. at par. 17.) In that lawsuit, Respondent brought claims on behalf of Spiegel against his neighbors, Corrine and William McClintic, alleging that the McClintics were seeking to rent their unit in the 1618 Sheridan Road building when they were not permitted to do so under the condominium declarations, and that, as a result, Spiegel suffered at least $50,000 in damages. Respondent later filed a first amended complaint in that matter, adding additional defendants and counts. (Ans. at par. 18; Adm. Exs. 18, 19.)
On May 27, 2016, the Association, the Association board, and other residents who were parties to the Spiegel litigation moved to consolidate the three active Cook County cases. On September 28, 2016, the trialcourt consolidated cases 15 CH 18825 and 16 L 3564 into case 15 L 10817. (Ans. at par. 19.)
On June 14, 2017, Judge Moira Johnson granted the defendants’ motions to dismiss all 25 counts of thefourth amended complaint in the 15 L 10817 case on the basis that none of the claims stated a cause of action, andordered Respondent to seek leave of the court to replead any amended complaint. Judge Johnson also struck all33 counts of the first amended complaint in case number 16 L 3564. (Ans. at par. 20; Adm. Ex. 22 at 70-79; Adm. Ex. 23.).”
Eventually the case was transferred to Judge Brennan who awarded sanctions exceeding $1.0 million against Respondent and his client. Sadly the conduct did not cease. “Following entry of the orders imposing sanctions on Spiegel and Respondent, a number of news outlets and online publications ran stories about the sanctions awards. In April 2020, Respondent filed nine separate complaints on behalf of The Law Offices of John Xydakis, P.C. and himself, individually, against various publications, alleging that their reporting about the sanctions award against him was defamatory. One of thecomplaints was against the Chicago Daily Law Bulletin. The Chicago Daily Law Bulletin’s article quoted attorneys John Schriver and Eugene Murphy, whom Respondent also named as defendants in that lawsuit. In May 2021, the court granted a motion to dismiss filed by Schriver and his law firm, and the case was dismissed in its entirety with prejudice. The remaining eight cases were either dismissed for want of prosecution or voluntarily dismissed by Respondent. (Ans. at pars. 43-53; Adm. Exs. 59-60, 62, 64, 66-70, 72-73, 75.)”
The Respondent also accused Judge Brennan of engaging in ex parte communications. These allegations were found to be false. “The record is devoid of any evidence whatsoever that Judge Brennan engaged in ex parte communications. Even Respondent’s own testimony shows that, at most, he became suspicious that JudgeBrennan may have communicated with another attorney when, at a hearing in February 2018, she told him that he had not listened to Judge Johnson or anyone else, and then, in another hearing in March 2018, first said thatshe had not spoken with counsel at all and then said that she had not spoken with counsel about the case. (See Tr. 1092, 1094-95.)
But mere suspicion is an insufficient basis for an attack on the integrity of a judge. “A reasonable beliefmust be based on objective facts. Thus, subjective belief, suspicion, speculation, or conjecture does notconstitute a reasonable belief.” In re Walker, 2014PR00132, M.R. 28453 (March 20, 2017) (Hearing Bd. at 21); see also Greanias, 01 SH 117 (Hearing Bd. at 43, 57) (attorney had “no factual or evidentiary basis” for her allegations, which were “no more than conjecture and personal belief;” she therefore made the allegations with reckless disregard for their truth or falsity). Moreover, itis clear from even a cursory reading of the transcript of the February 2018 hearing that Judge Brennan was referring to Respondent’s failure to abide by previous judges’ rulings when she said he did not listen to Judge Johnson or anyone else.
In addition, at the March 2018 hearing, and in stipulated testimony in this matter, Judge Brennan unequivocally denied that she had engaged in ex parte communications with any of the defense counsel. Similarly, Gene Murphy, the defense counsel with whom Respondent claims Judge Brennan communicated, denied having any ex parte communications with Judge Brennan or any of her staff. He explained that he may have had brief conversations with the judge’s clerk about administrative matters, but never talked about the substance of the case with the judge or any of her staff. He further testified that he would never do such a thing.We found Murphy to be credible and accept his testimony that he never engaged in ex parte communications with Judge Brennan or any of her staff.
The documentary evidence presented by Respondent does not alter our finding. At most, it shows that there were a few short phone calls between Murphy and Judge Brennan’s chambers, and that Murphy notedconversations with “judge’s clerk” on his billing statements. That evidence is consistent with Murphy’s testimony that he occasionally contacted Judge Brennan’s chambers about administrative matters, such as when a motion would be heard.
Because there is no objective evidence in the record that Judge Brennan engaged in ex parte communications, we find that Respondent had no reasonable basis for believing his statements to be true. He therefore recklessly disregarded the truth in making his false accusation, and in so doing, violated Rule 8.2(a).”
The Hearing Board found violations of Rule 3.1. “We find that the evidence clearly and convincingly shows that, as of November 2015 if not earlier, Respondent knew that his attack on Hall’s unit ownership and eligibility to serve on the Association board was legally and factually baseless; yet, he maintained those claims against Hall until Judge Brennan denied him leave to file the fifth amended complaint in February 2018. By this conduct, he violated Rule 3.3(a)(1).”
The Board also found a violation of Rule 8.4(d) (conduct prejudicial to the administration of justice). Based upon our findings that Respondent violated Rule 3.1, and based upon the totality of thecircumstances relating to Respondent’s filings and tactics in the Spiegel litigation, we also find that he engaged inconduct prejudicial to the administration of justice by wasting the time, money, and other resources of opposingparties, opposing counsel, and the judicial system by bringing and pursuing baseless and frivolous claims. It is apparent from the court documents and transcripts in the record that Respondent’s excessive and oppressive litigation tactics, particularly his filing of the motion seeking leave to file the fifth amended complaint, required the parties and court to expend resources to address his motion and various filings. Among other things, the defendants were required to prepare written responses to and attend another lengthy hearing on the motion for leaveto file the fifth amended complaint, and the court was required to hold a hearing and handle a subsequent motionfor reconsideration. We therefore find that the Administrator proved by clear and convincing evidence that Respondent violated Rule 8.4(d).
Comment: the Respondent was and is clearly a talented lawyer. Somehow, in my opinion, he lost sight of his role as an advocate and became so committed to winning the case at any cost that he lost sight of the rules. How is it that someone with extensive courtroom experience loses sight of the rules and embarks on a campaign of frivolous litigation and abuse of the judiciary? There must have been multiple clues delivered to him that his behavior was not appropriate, yet he persisted.
