The ARDC Hearing Board has recommended a three month suspension for a lawyer who disparaged opposing counsel during a deposition and then disparaged the judge who ruled on a discovery motion arising out of that incident.
The first violation involved conduct at a deposition that was transcribed by a court reporter.
“Respondent represented William Green, the plaintiff in an insurance coverage declaratory judgment action filed in the Circuit Court of Cook County. Keely Hillison represented defendant American Freedom Insurance Company (American Freedom), and Alvin Becker and Mark Evans represented defendant Insure on the Spot. The case was assigned to the Hon. Franklin U. Valderrama. (Amend. Ans. at par. 1; Tr. 51)
On November 10, 2016, Hillison took Green’s discovery deposition. Respondent, Green, Hillison, Becker, and a court reporter were present. (Tr. 59).
One of the issues Hillison sought to explore in the deposition was whether Green was using his insured vehicle for business purposes, which would not have been covered under his policy. (Tr.55). When Hillison asked Green if he had been provided a vehicle to use in connection with his employment, Respondent objected. When Hillison responded by certifying the question, the following exchange occurred:
Respondent: Okay. Then certify your own stupidity at this point.
Hillison: Counsel, I’m not going to sit here and take insults from you.
Respondent: At this point in time, a man who insults on a daily basis everybody he does business with has now been elected President of the United States. The standards have changed. I’ll say what I want.
(Adm. Ex. 2 at 9-10).
Hillison testified that Respondent was angry at the time he made these statements. (Tr. 68). Becker perceived Respondent’s demeanor and tone to be “hostile from inception and insulting.” (Tr. 237).
When Respondent said, “certify your own stupidity at this point,” Hillison felt rattled and embarrassed to be insulted in front of Becker, whom she has known for a long time. (Tr. 69, 72). According to Respondent, he was not saying Hillison was generally a stupid person but was referring to her actions at the time. (Tr. 347).
Another exchange occurred when Hillison began to question Green about attorney fees he incurred. Hillison sought this information because Green’s complaint, which Respondent drafted, included a request for attorney fees under Section 155 of the Illinois Insurance Code. (Tr. 55-57, 78). When Hillison asked Green whether he had received any invoices or bills from Respondent, Respondent said, “Don’t waste your breath.” He then objected and directed Green not to answer. When Hillison asked that the question be certified, Respondent said: “Motion for sanctions; indicate that on the record. I’m going to get sanctions against your firm like you wouldn’t believe, bitch.” (Adm. Ex. 2 at 10).
When Respondent interrupted Hillison and said “don’t waste your breath,” Hillison felt he was deliberately undermining her efforts to take the deposition and represent her client. (Tr. 78). When Respondent threatened Hillison with sanctions and called her “bitch,” she felt verbally abused and again felt rattled and embarrassed. Hillison took Respondent’s use of the word “bitch” to be a derogatory, insulting word for a nasty woman. (Tr. 81-83).
Respondent thought Hillison’s questions were improper because he forgot that the Green complaint sought attorney fees. He acknowledged that Hillison was not responsible for his mistake, but said he might have backed down if she had brought it to his attention. (Tr. 292). Respondent testified he was protecting Green because Hillison was abusing him and questioning him unfairly and angrily. (Tr. 448-49).
Hillison viewed her questions as proper. She did not use insulting language toward Respondent or raise her voice. She completed the deposition, although it was difficult and Green refused to answer some of her questions. (Tr. 81-85).
In Becker’s opinion, Hillison did not do anything to provoke Respondent. Becker described Hillison as a “quiet, nice, meek, nonconfrontational person.” (Tr. 237-39). He found her questioning to be professional and routine, both in the types of questions she asked and her demeanor and tone. (Tr. 248).
Following the deposition, Hillison filed a motion to compel Green to answer the questions he refused to answer, which also mentioned Respondent’s verbal abuse. (Tr. 90; Adm. Ex. 3). The parties appeared before Judge Valderrama on the motion to compel on December 15, 2016. This proceeding is discussed in more detail in Section II below.
On December 22, 2016, Respondent filed a response to the motion to compel. In addressing the comments he made at the deposition, Respondent apologized and further stated, “the comments were intemperate, inappropriate and made in an ill-tempered reaction to what I perceived as bullying and improper questions of the plaintiff by Mrs. Hillison and a general angry tone by her that was quite visible to this counsel though it did not necessarily come out as clearly on the record.” (Adm. Ex. 3). Respondent also made comments about Judge Valderrama, which are discussed in Section II.
On January 30, 2017, Judge Valderrama entered an Order, a portion of which addressed Respondent’s comments to Hillison. Judge Valderrama described Respondent’s comment that the presidential election altered the standards of professional conduct as “preposterous.” He found Respondent’s abusive statements about Hillison more disturbing and “wholly inexcusable under any and all circumstances.” Judge Valderrama characterized Respondent’s apology in his Response as a “half-hearted or non-apology apology” because he blamed Hillison for bullying Green and asking questions in an angry tone. (Adm. Ex. 8 at 11-14).
Hillison testified that Respondent’s conduct derailed the possibility of settling Green’s case. It also affected her handling of the case because she felt the need to limit contact with Respondent to written communication. (Tr. 114, 194-97). Respondent disputed that his conduct negatively impacted the case because he and Hillison had civil email correspondence following the Green deposition. (Tr. 479-80).”
The ARDC Hearing panel determined that the respondent had violated Rule 3.5(d) (duty to abstain from disruptive conduct); Rule Rule 4.4(a) (harassment) and Rule 8.4(d) (conduct prejudicial to the administration of justice).
The respondent was also found to have disparaged Judge Valderama involution of Rule 8.2(a). The opinion sets forth the facts as follows:
“When Respondent, Hillison, and attorney Mark Evans appeared on December 15, 2016, on American Freedom’s motion to compel, Judge Valderrama admonished Respondent for the comments he made to Hillison. Evans recalled that Judge Valderrama appeared to be offended by Respondent’s conduct and told Respondent the language he used was inappropriate. (Tr. 207-212). Hillison remembered Judge Valderrama telling Respondent he was lucky the only relief Hillison was seeking was to compel answers to her deposition questions. Both Hillison and Evans testified that Judge Valderrama remained calm and did not raise his voice or appear to be angry. (Tr. 96-97, 207-212). Respondent, on the other hand, believed Judge Valderrama was very angry with him but could not recall the words Judge Valderrama used. (Tr. 353). No court reporter was present. (Tr. 96-97).
On December 22, 2016, Respondent filed a response to American Freedom’s motion to compel which included statements about Judge Valderrama’s conduct during the December 15, 2016 proceeding. Respondent stated that he would have apologized to Hillison at that time, “but the court, in its anger, refused to let this counsel speak and further made comments attempting to hold me to the statement made in the deposition.” (Adm. Ex. 5 at 8).
Respondent went on to characterize Judge Valderrama as being “in a rage.” He stated that Judge Valderrama “flew into a rage of his own at this counsel for what was said in the deposition.” Respondent acknowledged that Judge Valderrama had made some favorable rulings for his client in the past, but said that “in light of recent events, and most particularly the ?robe rage incident’ of December 15, 2016, it is unclear to this counsel whether the client, who has a meritorious case and said nothing inappropriate at his deposition, will now suffer because of the anger this court holds against his counsel.” Respondent continued, saying “In this case, the judge saw an angry situation develop in a deposition and reacted in anger. It is always preferable if a judge is able to put out fires rather than pour oil on the flames.” Respondent then repeated his questioning of Judge Valderrama’s ability to act impartially toward Green, saying, “On the other hand, such temper as was displayed by the Court calls into question the impartiality of the tribunal.” Respondent said he was sorry if Judge Valderrama considered his words to be a personal attack, but “as an attorney representing a client, it is necessary to protect that client from the judicial anger that clearly occurred on December 15.” (Adm. Ex. 5 at 8-9).
According to Respondent, when he used the term “robe rage” he was merely expressing that Judge Valderrama was angry while he was on the bench. (Tr. 357). He had doubt as to Judge Valderrama’s impartiality because of the anger Judge Valderrama displayed. (Tr. 366).
In the Order entered on January 30, 2017, Judge Valderrama addressed Respondent’s comments about him at length. The Order stated that the court is presumed to be impartial and judicial remarks that are critical or disapproving of counsel ordinarily do not support a bias or partiality challenge. It further stated that “an objective, reasonable person would not conclude that the Court’s impartiality might reasonably be questioned based on the Court’s admonishment of Cohn at the December 15, 2016 Hearing.” (Adm. Ex. 8 at 16-17).”
The Panel found that the lawyer had violated Rule 8.2(a) by making false statements concerning the qualifications or integrity of a judge. The respondent defended himself on the ground that none of the statements was false or defamatory and that he had a First Amendment right to make those statements and that those statements were protected opinions under the First Amendment.
The Panel recommended a three month suspension. In re Charles Andrew Cohn, 2018 PR 00109.