The ARDC Review Board (essentially the ARDC’s appellate review panel) has recommended a censure for Maurice J. Salem, a New York lawyer who has practiced in Illinois in numerous cases over 15 years on a pro hac vice basis. Salem is not a member of the Illinois bar. He has handled a number of cases in Illinois, some of which have often been newsworthy. Because he is not licensed, Salem has incurred the wrath of some Illinois lawyers who have complained about him. The ARDC’s case against Salem did not prove out for a number of reasons, mostly though, because Salem was careful enough to make sure that he did not claim that he was an Illinois lawyer on his business card. Instead he used the phrase “federal court litigation.” In all but one case, he disclosed to the court that he was not licensed in Illinois and sought admission pro hac vice, which is a fancy term for admission in one particular case. This opinion constitutes a victory for Mr. Salem who, for the most part, defeated the allegations against him.
A dissenting member of the panel recommended a 30 day suspension.
Previously, the ARDC Hearing Board rejected most of the claims of misconduct and found one violation that Salem had held himself out as an Illinois law in one appearance before one judge.
The Review Board explained the facts in this way:
The Hearing Board noted that the charges in Count I3 presented it with a case of first impression:
namely, whether Respondent’s presence and the extent of his practice in Illinois constitute a violation of Rule 5.5 despite his compliance with Supreme Court Rule 707’s requirements for pro hac viceadmission, and whether Rule 5.5 requires an out-of-state attorney, admitted to practice in federal court in Illinois, to identify on his [or her] written communications where he or she is licensed and that he or she is not licensed in Illinois. (Hearing Bd. Report at 10.)
The Hearing Board found no violation of Rule 5.5(a) because Respondent had fully complied with Rule 707 and was authorized to appear pro hac vice in all of the cases identified in the complaint, and therefore did not practice law in violation of the regulation of the legal profession in Illinois. In making this finding, the Hearing Board noted that the allegations in Count I were limited to Respondent’s representation of clients in Illinois matters since 2010, and therefore that it did not consider events that predated 2010.
Similarly, the Hearing Board found that Respondent did not violate Rule 5.5(b)(1) because, according to Rule 5.5(d)(2), Respondent was permitted to establish an office and presence in Illinois in order to maintain his federal practice. It also found that Supreme Court Rule 707 provides guidance as to what the Court considers an acceptable level of participation in Illinois proceedings by an out-of-state attorney: An out-of-state attorney can apply for pro hac vice admission if he or she has not entered a pro hac vice appearance in more than five other
proceedings in the same calendar year. The Hearing Board noted that the Court has not articulated whether, if ever, there is a length of time or number of cases beyond which authorized pro hac vice representation turns into a Rule 5.5 violation, and that it was not the hearing panel’s role to make that determination. It thus concluded that, based upon Respondent’s right to practice in federal court in Illinois and his compliance with Rule 707 in obtaining authorization to appear pro hac vice in Illinois matters, it did not find a violation of Rule 5.5(b)(1).
The Hearing Board also found no violation of Rule 5.5(b)(2). It noted that the charge focused on Respondent’s failure to include particular language on his business cards indicating that he was not licensed in Illinois or only licensed in New York. It stated that it was not convinced that Rule 5.5(b)(2) required Respondent to indicate on his business cards where he was or was not licensed. It stated that neither the rule, the comments to the rule, nor case law imposed such requirements; that the Administrator was asking it to read requirements into the rule which would impose new obligations on out-of-state attorneys; and that it “decline[d] to take such a measure without direction from the Court.” (Hearing Bd. Report at 17.)
The Hearing Board noted that the Administrator had not explained how Respondent should have known he had a duty to include information about his licensure on his business cards without specific language in the rules, comments, or case law instructing him to do so. It stated that, if the Court “sees fit to impose such a duty” (id.), Respondent could not have known about this construction of the rule, and the charge should be dismissed, as in In re Corboy, 124 Ill. 2d 29, 45, 528 N.E.2d 694 (1988) (discharging attorneys who violated rules “without guidance of precedent or settled opinion”).
The Hearing Board acknowledged that an ISBA advisory opinion from October 2013 opined that a non-admitted lawyer’s letterhead, business cards, website, and advertising materials should state that the lawyer is not admitted in Illinois and that his practice is limited to immigration matters. See ISBA Professional Conduct Advisory Opinion No. 13-08 (October 2013). It stated that it had no disagreement with the advisory opinion, but that the advisory opinion did not lead it to conclude that Respondent had violated Rule 5.5(b)(2). It found that the advisory opinion involved a different set of facts, and that, unlike in the advisory opinion, Respondent had used the phrase “Federal Court Litigation” in his communications and relied on the direction he received from the Character and Fitness Committee in doing so.
The Hearing Board reasoned that, even if Respondent had been aware of the advisory opinion, and there was no evidence that he was, it could not find that he was required to follow the advisory opinion’s requirements when the Court had not adopted those requirements. It further reasoned that, if the Court had wished to impose specific requirements regarding disclosure of an attorney’s licensure, it would have done so as it did in Rule 7.4.4 The Hearing Board thus concluded that it would be overstepping its bounds to impose requirements on Respondent that the Court has not included in the Rules of Professional Conduct or addressed in the comments to the Rules.
The Hearing Board also found that, while Respondent’s business cards identified him as an attorney and included only his Illinois address and phone numbers, they also included the phrase “Federal Court Litigation,” which the Character and Fitness Committee had advised him to add. It found that the inclusion of “Federal Court Litigation” sufficiently indicates that Respondent is not holding himself out as a lawyer generally admitted to practice in Illinois, and that Respondent had made an effort to comply with the Rules of Professional Conduct.
Last, the Hearing Board found that the Administrator did not establish that any member of the public or legal profession was led to believe, based upon Respondent’s business
cards, that Respondent held an Illinois license. It noted that the Administrator charged Respondent with violating the 2010 Rules, but did not present evidence that, during the relevant time period from January 1, 2010 forward, Respondent’s business cards led anyone to believe he was an Illinois attorney. It found that Respondent’s general testimony that he has used his business cards during the last 10 years and has given them to clients in Illinois is not specific enough to meet the Administrator’s burden of proof, especially considering that Respondent represents clients primarily in federal court.
The Hearing Board found that Respondent had not engaged in dishonesty in violation of Rule 8.4(c). It found that his business cards did not contain false information, and that Respondent had made an effort to describe the limitations on his practice by including the phrase “Federal Court Litigation.” It did not find Respondent’s omission of licensure information to be dishonest because it found that Respondent was not required to include that information. It also found no evidence that Respondent had intended to deceive anyone. It found, to the contrary, that the evidence showed that Respondent had made efforts to comply with the Rules of Professional Conduct by following the instruction of the Character and Fitness Committee to add “Federal Court Litigation” to his business cards. It thus concluded that, absent clear and convincing evidence that Respondent had created and used his business cards with dishonest intent, it could not find a violation of Rule 8.4(c).
Finding of Misconduct
The sole misconduct found by the Hearing Board was a violation of Rule 5.5(b)(2), as alleged in Count III, in connection with Respondent’s appearance before Judge Feerick.
The Hearing Board found that the letterhead that Respondent sent to Judge Feerick improperly held him out as an Illinois attorney. It found that the letterhead differed from his business cards in that it did not state “Federal Court Litigation.” It found this to be a significant omission because there was nothing else in the letterhead to signal that Respondent was not licensed in Illinois.
It further found that, unlike in Count I, there was evidence that Judge Feerick believed Respondent to be an Illinois attorney at the time he sent his letter and for a period of time thereafter. It found it reasonable to believe that Respondent’s communications with the court, including his letterhead, contributed to the court’s lack of knowledge. It thus found that the Administrator proved that Respondent had held himself out as an attorney in the forcible detainer matter. However, it stated that it did not find that he did so intentionally, noting that Rule 5.5(b)(2) does not include an element of intent.
The Appeal. The ARDC argued that the Hearing Board erred in rejecting most of the charges and that Salem deserved a 90-day suspension.
The Review Board affirmed the Hearing Board’s findings of fact and it affirmed the sanction as well.
The major issue in the appeal was whether Salem had violated Rule 5.5(b)(2). Rule 5.5 deals with the unauthorized practice of law. It provides:
RULE 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction or admitted or otherwise authorized to practice in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized
to provide by federal law or other law or rule to provide in of this jurisdiction.
(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction.
The Review Board concluded that Salem did not violate 5.5(b)(2). I have provided the key portion of the opinion here:
Respondent’s Use of the Phrase “Federal Court Litigation”
The Administrator contends that Respondent’s adding the phrase “federal court litigation” to his business cards and, sometimes, to his letterhead does not specifically communicate to the public that Respondent is not licensed to practice law in Illinois, and therefore does not absolve him of the charge that he violated Rule 5.5(b)(2).
As the Hearing Board noted, this argument effectively asks this Board to rule, as a matter of law, that a lawyer in Respondent’s circumstances (i.e., one who is not admitted in Illinois but is practicing in Illinois – whether in federal court or in state court via pro hac vice admission – and using an Illinois address) must identify on business cards and letterhead that he or she is not licensed to practice in Illinois. The Hearing Board declined to make such a ruling because it believed that, by doing so, it effectively would be imposing new obligations on out-of-state attorneys, which it believed was within the Court’s authority but not the Hearing Board’s. We fully agree with the Hearing Board’s sound reasoning, and therefore also decline to make such a ruling.
The Administrator also argues that Respondent’s use of the phrase “federal court litigation” instead of specifically identifying that he is licensed only in New York and not in Illinois “was a deliberate attempt to foster ambiguity as to his licensing status.” (Appellant’s Brief at 22.) Aside from the fact that this argument goes more to Respondent’s alleged dishonesty, which we address below, than to an alleged violation of Rule 5.5(b)(2), the Hearing Board specifically found that Respondent did not intend to mislead or deceive anyone by what he included or did not include on his business cards and letterhead. Consequently, this argument asks this Board to overturn the Hearing Board’s credibility finding.
While we give deference to all of the Hearing Board’s factual determinations, we do so particularly to those concerning the credibility of witnesses, because the Hearing Board is able to observe the testimony of witnesses – which we are not – and therefore is in a superior position to assess their demeanor, judge their credibility, and evaluate conflicts in their testimony. In re Kleczek, 05 SH 24 (Review Bd., June 1, 2007), at 8, petitions for leave to file exceptions denied, M.R. 21745 (Sept. 18, 2007) (citing In re Spak, 188 Ill.2d 53, 66, 719 N.E.2d 747 (1999); In re Wigoda, 77 Ill.2d 154, 158, 395 N.E.2d 571 (1979)). The Hearing Board clearly accepted Respondent’s testimony that he did not intend to deceive anyone with his business cards. Thus, it presumably found that aspect of his testimony to be credible, and the Administrator has given us no reason to overturn that finding.
Respondent’s Incorporation of his Law Office in Illinois
The Administrator provides no authority for the proposition that Respondent’s incorporation of his law office in Illinois in 2011 violated Rule 5.5(b)(2), and we have found none. Moreover, Respondent arguably was permitted to do so under the Rules of Professional Conduct.
Rule 5.5(d)(2) states: “A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that . . . are services that the lawyer is authorized to provide by federal law or
other law of this jurisdiction.”6 In addition, comment 15 to Rule 5.5 explains that paragraph (d) identifies circumstances under which “a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” Comment 18 further notes that Rule 5.5(d)(2) “recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.”
As the Hearing Board noted in its report, Respondent has been an Illinois resident since 2003 and has been admitted to federal court in Illinois during the entire time period at issue in this matter. It concluded that Respondent’s presence and office in Illinois did not violate Rule 5.5(b)(1) because, pursuant to Rule 5.5(d)(2) and comments 15 and 18, he was permitted to have an office and presence in Illinois in order to maintain his federal practice, and there was no evidence that Respondent used his office to solicit Illinois clients or otherwise engage in the unauthorized practice of law.
We see no flaw in the Hearing Board’s reasoning. Moreover, although the Hearing Board engaged in this analysis in the context of finding no violation of Rule 5.5(b)(1), we believe the same analysis holds true for Rule 5.5(b)(2). The crucial part of the Hearing Board’s reasoning is that our rules appear to have specifically allowed Respondent to establish a law office for his federal practice. Given that, we do not believe the Administrator has shown how Respondent’s incorporation of his law office in Illinois constituted improperly holding himself out to the public as an Illinois lawyer.
Respondent’s Filing of the Two Tax Appeals
The Administrator further argues that Respondent clearly held himself out as an Illinois attorney and engaged in the unauthorized practice of law in 2015 when he filed the two tax appeals without seeking pro hac vice permission to do so.
However, as the Hearing Board reasoned, Respondent’s conduct in connection with the tax appeals was not charged in the complaint. Well-established precedent dictates that we may not consider uncharged misconduct in imposing discipline. See, e.g., In re Karavidas, 2013 IL 115676, par. 73 (“An attorney’s procedural due process rights, including the right to fair notice and the right of an opportunity to defense against all charges, would be violated if an attorney were disciplined for uncharged misconduct”). We therefore decline to consider Respondent’s conduct in connection with the tax appeals to find that he engaged in misconduct. (As noted below, however, we do find those actions to be aggravating.)
The Administrator contends that, for years, Respondent consistently identified himself as an attorney with only Illinois addresses on his business cards and letterheads, which would lead a reasonable person to believe that he possessed an Illinois law license. He argues that Respondent’s use of “federal court litigation” on his business cards and on some letterhead instead of a more definitive phrase like “practice limited to federal court litigation” or a list of jurisdictions where he is admitted to practice is proof that he has sought to keep his licensure ill-defined.
The Hearing Board specifically found, however, that, by adding “federal court litigation” to his business cards and letterhead, Respondent was following the directions of the Character and Fitness Committee and making an attempt to follow the Rules of Professional Conduct.”
Update: the Illinois Supreme Court increased the penalty for Ms. Salem. On January 19, 2019, he was suspended 90 days and until further order of court. This should bring Mr. Salem’s legal career to an end.