ARDC Recommends 60-Day Suspension for False Statement In Motion

The ARDC Review Board has recommended a 60-day suspension for a lawyer who made a material misstatement in a motion to vacate a conviction. In Illinois an old conviction, even if you have led a blameless life, can lead to dire consequences because you are forever barred from holding any professional license – even one to cut hair. This harsh rule has been criticized and challenged but it has stood the test of time. Here a lawyer made a false statement in a motion to vacate a conviction and the Review Board has recommended a 60-day suspension.

In March 2017, Respondent agreed to represent Courtney Chester in an effort to have her 2001 battery conviction voided so that she could apply to nursing school. Chester was 17 when she was charged with battery, but she had turned 18 on the day before she pled guilty to the charge. Thus, she was 18 at the time of her guilty plea and conviction. Respondent knew she was 18 when she pled guilty.

“Respondent began conversations with Assistant States Attorney Joseph Lesner about Chester’s situation. Lesner told him to get a motion on file. Respondent thus prepared and filed with the court a motion to vacate Chester’s guilty plea and conviction. In the motion, Respondent stated that Chester was 17 at the time she was charged and sentenced. He further stated: “As [Chester] was only 17 at the time of the plea and conviction[,] her plea and conviction should properly be voided.” (Admin. Ex. 1 at 5.) He knew that statement was false when he filed the motion, because he knew that Chester was 18 when she entered her guilty plea and was sentenced.

Respondent also sent a cover letter to Lesner explaining the motion, in which he stated that Chester was “trying to become a nurse and to do so she needs to remove her conviction for battery in 2001. She was 17 at the time and was eligible for court supervision.” (Admin. Ex. 1 at 6.)

About a month after filing the motion, Respondent appeared in court on the motion to vacate, in front of Winnebago County Circuit Court Associate Judge Brian Shore. Judge Shore questioned him about the basis of the motion, pointing out that Chester was 18 

when she pled guilty and that the motion, on its face, was not correct. Respondent told Judge Shore that he did not look at the actual plea date and that, when he wrote the motion, he believed Chester was 17 at the time of her plea, but subsequently determined that she was over that age. The judge continued to press Respondent about the incorrect statement, and Respondent continued to assert to the judge that he did not intend to state something false. The judge dismissed the motion to vacate because of the “blatantly false allegation.” (Admin. Ex. 3 at 3-8.) At his disciplinary hearing, Respondent acknowledged that his statements to Judge Shore that he did not look at the actual plea date and that he believed when he wrote the motion that Chester was 17 when she pled guilty were false. (Report of Proceedings at 34-35.)”

If you have a legal ethics issue and would like to discuss it with us, do not hesitate to contact us. Also, please review our legal ethics webpage. https://www.clintonlaw.net/legal-ethics.html

The Journey Begins

Thanks for joining me! I recently moved my legal ethics blog to wordpress from Blogger. We will see how this works.

This blog typically covers legal ethics issues and disciplinary cases of note.

The new format of WordPress will take me some time to learn.

Ed Clinton

Good company in a journey makes the way seem shorter. — Izaak Walton

ARDC Hearing Board Rejects Claim that Lawyer Wrongfully Obtained Health Insurance

In a recent decision, filed March 12, 2019. the ARDC Hearing Board rejected a claim that a lawyer wrongfully held herself out as an employee of a company to obtain health insurance. Since the lawyer won her case and the panel recommended that the charges be dismissed, I’m not going to list the lawyer’s name in this blog post. 

The Hearing Board found the following facts to be relevant:

During the time Respondent worked at law firms and General Growth Properties, she received health insurance as an employee through her employers’ policies. When she started her own firm in 2009, she obtained health insurance pursuant to the Consolidated Omnibus Reconciliation Act (Cobra). At that time Respondent and her husband, who was a partner with a large company, were living with Respondent’s parents in Highland Park. (Tr. 19-20, 27-28).
Between 2009 and October 2010, Respondent decided she wanted to have a second child. Her Cobra coverage had a waiting period of twelve months for maternity benefits, and other private insurance options had a similar requirement. Her husband did not have insurance coverage through his business. Respondent testified when she mentioned the situation to her father, he told her she could be added to Horizon’s policy. She understood from his statement that she was allowed to be on the policy. (Ans. at pars. 4, 6; Tr. 29-31, 76).
Daniel Michael recalled telling Respondent he would add her to the company insurance policy. He acknowledged Respondent never worked at Horizon, but he believed she qualified for coverage because she was part owner of the company. He was not aware that only employees were covered by the policy. When he told the office accountant, Robert Berman, to make sure Respondent was added to the policy, Berman did not ask any questions or express any concerns. Daniel testified that whenever his kids needed something, they got it. (Tr. 133-35, 138-39, 145).
In or about January 15, 2011, Respondent completed parts of a Blue Cross Blue Shield “Employee Application.” She acknowledged writing “Horizon Realty Group” in the space provided for the employer’s name, and writing her own name in the space for employee. She also provided her email address, social security number, and her husband’s and daughter’s names where requested. In a section designated “Employment Status,” the following options were provided:
__ Active Employee    __COBRA Continuation    __IL Continuation    __ If Retiree, retirement date ____
Respondent did not know who placed an “x” next to “Active Employee,” or who placed other marks on the page indicating “PPO” coverage and “family” health plan. She denied filling in the date of employment and the effective date of the policy, and did not know who completed that portion of the application. (Tr. 35-43, 50-51, 75; Adm. Ex. 1).
Respondent testified she did not want life insurance coverage and therefore did not provide information pertaining to that option, such as job title, salary amount and number of hours worked in a normal week. On a separate “Waiver of Coverage” form, Respondent wrote “Horizon Realty Group” as her employer and her own name as the employee, filled in her address and social security number, and indicated she was declining life insurance coverage. She denied writing in the date of hire on that form, and does not know who filled in that information. On a page entitled “Medical Questionnaire,” Respondent wrote her name and date of birth, and supplied information for her husband and daughter. (Tr. 38, 43-47, 50-52, 74-75; Adm. Ex. 2).
Respondent acknowledged signing the application, waiver, and medical questionnaire in the spaces provided for “Signature of Employee,” and dating them January 15, 2011. By signing the application, she acknowledged the following:
I apply for coverage as indicated above, for which I am or may be eligible under the agreement with Blue Cross and Blue Shield of Illinois, a Division of Health Care Service Corporation . . . and/or Fort Dearborn Life Insurance Company . . . which are herein exclusively called the Company. I have read the above statements and represent that they are true and complete to the best of my knowledge.
(Tr. 42, 49-51, 233; Adm. Ex. 1).
Respondent did not believe she was breaking any rule by signing the forms as an employee. She testified she never thought twice about the situation after her father told her she could be on the company policy. She acknowledged she never worked for Horizon, nor was she employed by her father or any of his businesses for any purpose. She testified her brother was an employee of Horizon, and she assumed he was on the Horizon policy. (Tr. 57-59, 233-34).
Jeffrey Michael testified he did not instruct anyone to give the Employee Application to Respondent, did not give it to her himself, did not fill in any information on Respondent’s initial application or on a subsequent form to enroll an additional child, and did not provide that information to anyone. He first became aware that Respondent was on the Horizon group insurance policy when he received a request for information from the ARDC or from a bankruptcy trustee. He was not aware the company was paying both the employer and employee contribution for Respondent. (Tr. 218-26).
Jeffrey and his family were on the Horizon policy during the 2011 to 2015 time period. He testified he works for the company full time, but denied he is an employee or receives payroll wages; rather, he is paid as the sole owner of an LLC. He confirmed that Respondent was not employed by the company, and no other non-employees were on the policy. (Tr. 219-21, 225).
Robert Berman, a certified public accountant, testified he worked for Horizon Realty in or about 2010 and 2011 as an in-house accountant. His only responsibility with respect to health insurance benefits was to supply blank forms and, at Daniel or Jeffrey Michael’s request, he faxed a blank application to Respondent. He knew at the time that no payroll was being processed for Respondent. He also knew that Jeffrey, who was an owner and worked at the company, was covered by the policy. Berman denied having any discussions with Respondent regarding the completion of the application and did not recall whether the form was completed and signed when she returned it. After receiving the application, he filled in the policy number, effective date of the policy and the date of employment, which information he might have received from Jeffrey, and sent the application in for processing. He denied having any further involvement with Respondent’s health insurance, any claims she filed, or the addition of dependents to the policy. (Tr. 193-99; Adm. Ex. 1).

 
The Findings:
 

In the case before us, Respondent acknowledged she completed portions of insurance applications that identified her as an employee of Horizon when, in fact, she never worked for Horizon. Further, while covered by the Horizon policy, she submitted claims for medical services and received payments from Blue Cross. Those facts, while seemingly incriminating, must be viewed in light of other evidence and Respondent’s explanations for her conduct.
Respondent denied that her actions stemmed from any calculated plan to deceive anyone; rather, she explained that in light of her father’s statement that she could be added to the Horizon policy, she failed to give any real thought to her eligibility. We found Respondent to be a very credible witness and her explanation to be reasonable. In our opinion, her deference to her father’s judgment was realistic in light of his position of authority in the company and the fact he would be expected to have knowledge of company benefits. Respondent’s legal expertise, while extensive in the area of commercial real estate, did not encompass the interpretation of insurance benefit plans.
Even if Respondent had given greater thought to the language of the application form, the wording of the acknowledgement paragraph was vague in that it stated she was applying for coverage for which she was eligible or “may become” eligible. The Blue Cross representative was not asked to interpret that language, nor was it referenced in the terminology definitions we reviewed. With respect to an “x” next to “Active Employee,” Respondent did not recall if she made that mark. Since at least one other person entered information on the application form, we draw no conclusions with respect to that mark. We also note there were no other options provided, such as “owner” or “other.”
Aside from the issue of Respondent’s motivations, which we conclude were innocent, we find there was a complete failure of proof as to whether she was, in fact, eligible for coverage. It was incumbent upon the Administrator to provide proof of the policy terms, requirements, benefits and definitions in place at the time of the alleged wrongdoing, but that proof was lacking. The two-page undated excerpt of definitions, which was represented to be part of a “group document,” was of little assistance without the entire document, which may have contained additional definitions or addressed the issue of coverage for company owners. The fact Respondent’s brother identified himself as an owner of the company who was covered by the policy, only adds to the confusion and the possibility that further definitions may exist. The Blue Cross representative did not know if the two-page excerpt was the document referenced in the policy booklet and notably, had no opinion as to whether Respondent qualified for coverage. Additionally, the benefit applications for Horizon that were presented to us were not in effect at the time Respondent first applied for coverage and we saw no evidence that Respondent was given a copy of the actual benefits policy or any other document that defined who was entitled to coverage. As such, she had no basis to make an independent judgment that would contradict her father’s assessment.
We also find it significant that no one involved with the application process raised any objections or concerns regarding Respondent’s coverage under the Horizon policy. We saw no evidence that anything was said to Respondent – by her father, her brother, the company accountant or the insurance broker who transmitted the policy to Blue Cross – that would cause Respondent to pause and consider her actions. Likewise, we saw no indication that Jeffrey Michael’s eligibility for coverage was ever questioned when he, like Respondent, was an owner of the company and not an employee.
We have reviewed cases in which attorneys engaged in dishonest conduct by seeking insurance coverage or other benefits for themselves of family members. In See e.g. those cases the attorneys were clearly aware that eligibility requirements could not be met. In re Lewis, 2016PR00007 (Review Bd. 2018) (exceptions pending before the Supreme Court) (attorney admitted that his eligibility for benefits was dependent on his status as a domestic partner, but continued claiming benefits for eight years after the domestic partnership ended); In re Bless, 2013PR00122, M.R. 28275 (Nov. 21, 2016) (attorney who was collecting disability benefits failed to obtain approval for secondary employment, although he knew such approval was required by workplace rules, in order to continue receiving full benefits); In re Worrell, 07 CH 60, M.R. 24407 (Mar. 21, 2011) (attorney acknowledged concealing information that would prevent her step-father from receiving public aid benefits); In re Volpe, 97 CH 33, M.R. 15040 (Nov. 24, 1998) (in order to obtain health benefits, attorney listed himself and family members as employees of a family business which had ceased to exist years earlier).
The present case is more in line with In re Cooney, 2010PR00123 (Nov. 30, 2011) where an attorney relied on his employer’s assurances that he could be included in a union health benefits plan, and that the arrangement had been approved by a union officer. The attorney signed a union membership application, which had been completed for him, which inaccurately identified him as a “carpenter.” He was not familiar with the law involved and did not research what was necessary to include nontrade employees in a union benefit plan. The attorney was reprimanded for undermining the justice system and bringing the legal profession into disrepute in violation of Supreme Court Rule 770 (which rule is no longer a basis for imposing discipline), but no finding of dishonest conduct was made.
We found Respondent to be a credible witness and accept her explanation that she gave no real thought to the insurance process and instead, simply acceded to her father’s decision. While her failure to give proper consideration to her actions and investigate her eligibility for coverage was not prudent behavior, especially for an attorney, we find no evidence of dishonest intent or purpose on her part.
During closing argument, counsel for the Administrator asserted that Respondent’s conduct constituted “constructive fraud,” which requires neither actual dishonesty nor intent to deceive. Cases have held that constructive fraud occurs where a special relationship gives rise to a legal or equitable duty that, when breached, results in a detrimental effect on public or private interests. See In re Gerard, 132 Ill. 2d 507, 528-29, 548 N.E.2d 1051 (1989); Cessna v. City of Danville, 296 Ill. App. 3d 156, 168-69, 693 N.E.2d 1264 (4th Dist. 1997). We find no such relationship here. We further note that neither a constructive fraud theory, nor the facts necessary to support it, were referenced or charged in the Complaint.1For the foregoing reasons, we conclude the Administrator failed to prove a violation of Rule 8.4(c) by clear and convincing evidence.
2.    Rule 8.4(b) – engaging in a criminal act that reflects adversely on Respondent’s honesty, trustworthiness or fitness as a lawyer
The Administrator charged Respondent with violating Rule 8.4(b) by “committing insurance fraud by submitting false claims when she was not entitled to insurance coverage as an employee of HRG (Horizon Realty Group).” The criminal statute cited in the Complaint states that a person commits insurance fraud by:
Knowingly obtain[ing], attempt[ing] to obtain, or caus[ing] to be obtained, by deception, control over the property of an insurance company or self-insured entity by the making of a false claim or by causing a false claim to be made on any policy of insurance issued by an insurance company or by the making of a false claim or by causing a false claim to be made to a self-insured entity, intending to deprive an insurance company or self-insured entity permanently of the use and benefit of that property.
720 ILCS 5/17-10.5(a)(1). A “false claim” is defined as any statement made to an insurer, insurance broker or insurance agent in support of a claim for payment or as part of, or in support of, an application for insurance when the statement 1) contains false or misleading information concerning any fact material to the claim; or 2) conceals the occurrence of any event material to a person’s entitlement to insurance benefits or payment, or the amount of any benefit to which the person is entitled. 720 ILCS 5/17-0.5.
We understand this charge to be based on Respondent’s application for insurance In January 2011 and her submission of claims between February 2011 and January 2016. As a preliminary matter, we note that the statute cited in the Complaint, although admitted by Respondent to be the controlling law at the time, actually took effect in July 2011 and therefore would not govern the application submitted by Respondent in January 2011. While the predecessor statute (720 ILCS 46-1(a) and 46-1(d)(5) (2010)) is nearly identical to the statute cited in the Complaint, a charge as serious as criminal conduct requires exactitude and we will not find a violation of a statute that was not in effect at the time the conduct in question occurred. The statute cited by the Administrator does apply to Respondent’s completion of the 2014 form adding a dependent to the policy, which she signed as an employee of Horizon, as well as to the insurance claims she submitted between July 1, 2011 and January 2016.
We find that a violation of Rule 8.4(b) was not proved by clear and convincing evidence. The criminal statute requires that a person “knowingly” engage in a “deceptive act” to gain control of the property of an insurance company. In our discussion of Rule 8.4(c), we concluded that Respondent’s conduct stemmed from her lack of attention and her assumptions based on statements made by her father, rather than from any knowing behavior or conscious deceptive act meant to deprive the insurance company of its property. Moreover, there was no evidence she had the proper materials in front of her that would establish the criteria for her insurance coverage, or that she knew those criteria. For those same reasons, we find Respondent did not knowingly engage in any deceptive act in violation of the insurance fraud statute.

 
Comment: the alleged misconduct was uncovered when the company went bankrupt. Still, it strikes me as remarkably petty for someone to report this attorney to the ARDC for what was at best a paperwork mistake. Further, none of the charged conduct had anything to do with the practice of law. The final issue that should be considered is – why do people have to go through such suffering to get health insurance in this country.  https://www.clintonlaw.net/legal-ethics.html
 
Edward X. Clinton, Jr.

ARDC Alleges False Statements On Law School Application and Bar Application

Normally I do not write about complaints filed by the ARDC because the allegations have not been proven. In this case, I have decided to report on the amended complaint in the matter of In Re Vincenzo Field, 2018 PR 00015 because it illustrates that a lie on a law school application never goes away. The two relevant counts are provided below. (There were other counts in which Mr. Field was accused of lying in various cases he handled.).

The first two counts contain these allegations:

Count I

1. Respondent received a bachelor of arts degree in history and political science from McGill University in May, 1998.
2. In October, 2005, Respondent registered to take the Law School Admission Test (“LSAT”) but cancelled taking the test. In December, 2005, Respondent took the LSAT and scored 158. In September, 2006, Respondent retook the LSAT and scored 173.1
3. In late 2005, Respondent applied for admission to the University of Chicago Law School, but was denied admission to the 2006 entering class.
1 LSAT scores are based on the number of questions answered correctly and range from 120 to 180.
4. On or about December 4, 2006, Respondent submitted a second application for admission to the Juris Doctor program at the University of Chicago Law School. The application requested that Respondent submit, among other things, a resume and candidate statement as part of the application process. Respondent submitted his personal statement and an addendum which purportedly addressed gaps in Respondent’s academic record.
5. In his personal statement addendum, Respondent stated that in 1999 he had been diagnosed with a leiomyosarcoma (a form of stomach cancer) that he had undergone four separate surgeries to have tumors removed from his stomach, as well as radiation therapy and what he referred to as “countless” minor procedures to stop gastric bleeding. Respondent stated that the disease delayed completion of his MA degree, stalled work in the McGill University Ph.D program, and forced his withdrawal from the University of Michigan, where he had taken courses as a visiting scholar toward completion of a doctoral degree.
6. In his personal statement addendum, Respondent further stated that although he had just undergone surgery in September, 2005 and was still receiving radiation therapy, he had sat for the October and December 2005 LSAT exams. Respondent explained that he was not healthy enough to have sat for the exams, but that in January, 2006, for the first time in six years, Respondent had been given a clean bill of health by his oncologist. As a result, he scored well on the LSAT, with a score of 173, and was finishing course work at the University of Michigan.
7. Respondent’s statements that he had been diagnosed with and received treatment for leiomyosarcoma were false.
8. Respondent knew the statements that he had been diagnosed with and received treatment for leiomyosarcoma were false because at no time prior to submission of his application to the law school had Respondent been diagnosed with or received treatment for leiomyosarcoma or any other cancer, nor did Respondent have an illness that affected his LSAT performance, and did not take the LSAT exam in October, 2005.
9. At the time Respondent submitted the false information in his application for admission to the University of Chicago Law School, Respondent knew the information was false and intended to mislead the law school in order to advance his chances for admission to the Law School.
10. Based upon Respondent’s false application to the University of Chicago Law School, Respondent was admitted to the school. At no time prior to the time he commenced his studies or since completion of his studies at the Law School did Respondent amend his application to provide truthful information to the Law School.
11. By reason of the conduct above, Respondent has engaged in the following misconduct:
  1. conduct involving dishonesty, fraud, deceit, or misrepresentation, including, but not limited to Respondent’s false statement that he was diagnosed with and received treatment for leiomyosarcoma, had an illness that affected his LSAT performance and had taken the LSAT exam in October, 2005, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990).

Count II

13. On or about May 31, 2011, Respondent filed with the Illinois Board of Admissions to the Bar, an agency of the Supreme Court of Illinois, both a character and fitness registration application (“application to the bar”) and a separate application to take the bar examination. Respondent’s applications to the Board of Admissions were made pursuant to Supreme Court Rule 703, which requires proof of an applicant’s course of law studies and fulfillment of the requirements for and receipt of a first degree in law from a law school approved by the American Bar Association, and Supreme Court Rule 704, which requires each applicant to file with the Board of Admissions to the Bar both a character and fitness registration application and separate application to take the bar exam.
14. Respondent’s application to the bar (“questionnaire”) requested answers to 55 questions relating to his character and his potential fitness to practice law. Respondent completed the application, but did not disclose his false statement in his application to the University of Chicago Law School that he was diagnosed with and received treatment for leiomyosarcoma.
15. Question 55 of the questionnaire asked the following: “Do you understand that after your Character and Fitness Registration Application is filed, you will have a continuous reporting obligation and must notify the Board of Admissions of any changes or additions to the information provided in your application? This includes, but is not limited to, address changes, employment changes, criminal charges, disciplinary actions (educational, employment or other), and traffic violations, including any parking tickets that are not paid upon receipt.”
16. Respondent answered “Yes” to Question 55 of the questionnaire.
17. Question 53 of the questionnaire asked the following: “Is there any additional information with respect to possible misconduct or lack of moral qualification or general fitness on your part that is not otherwise disclosed by your answers to questions in this application?”
18. Respondent answered “No” to question 53 of the questionnaire. At no time prior to the February 21, 2018 voting of a complaint by the members of Panel C of the Inquiry Board, did Respondent advise the Committee on Character and Fitness that he had submitted a false information in his application for admission to the University of Chicago Law School. At no time prior to his admission to the Bar in the State of Illinois did Respondent amend or change his answer to question 53 of the questionnaire to provide the Committee on Character and Fitness information about the false information he included in his application for admission to the University of Chicago Law School.
19. Respondent’s preparation of his application to the bar, his answer to question 53 of the questionnaire, and his failure to advise the Committee on Character and Fitness of his conduct in submitting the false information in his application for admission for University of Chicago Law School were false and Respondent knew that his conduct was false because his application for admission to the Illinois Bar contained material omissions which were intended to deceive the Committee on Character and Fitness in order to advance Respondent’s chances for admission to the Illinois Bar.
20. On or about May 31, 2011, Respondent submitted the questionnaire to the Committee on Character and Fitness together with the remainder of his application to the Illinois Bar. On or about November 10, 2011, Respondent was admitted in reliance on the entire application, which was not accurate.
21. As a result of the conduct set forth above, Respondent has engaged in the following misconduct:
  1. knowingly making a statement of fact known by the applicant to be false in his application to the Bar, and failing to update that information, including but not limited to Respondent’s failure to reveal his false statement that he was diagnosed with and received treatment for leiomyosarcoma in his law school application, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct;
  2. failing to disclose a fact necessary to correct a material misapprehension in his application to the Bar, and failing to update that information, including but not limited to Respondent’s false statement that he was diagnosed with and received treatment for leiomyosarcoma in his law school application, in violation of Rule 8.1(b) of the Illinois Rules of Professional Conduct; and
  3. conduct involving dishonesty, fraud, deceit, or misrepresentation, including but not limited to Respondent’s failure to disclose his false statement that he was diagnosed with and received treatment for leiomyosarcoma in his law school application in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct.

Comment: Any reader should withhold judgment until the ARDC Hearing Board makes a factual finding.

Former Attorney For Apple Accused of Insider Trading

https://www.bloomberg.com/news/articles/2019-02-13/ex-top-apple-lawyer-levoff-accused-by-sec-of-insider-trading?srnd=premium

This is a criminal case so the prosecutors believe they have very strong evidence to support the insider trading charge.

A lawyer has a fiduciary duty to the corporation and its shareholders. That fiduciary duty is the basis for the duty not to trade on inside information.

Ed Clinton, Jr.

ARDC Review Board Recommends A Censure For Maurice J. Salem

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.
Rule 8.4(c)
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
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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.
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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.)

 

Rule 8.4(c)

 

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.
 
 
 
 

 

ARDC Hearing Board Recommends One-year Suspension For Lawyer Who Converted Settlement Funds

The case is In re Adebayo Olusgun Adesina, 17 PR 0097.

This is a simple case where the lawyer obtained a settlement for the client, but converted some of the settlement funds.

The ARDC Hearing Board found some of the charges unproven but did find the respondent failed to safeguard client funds and engaged in dishonest conduct with the client.  The Hearing Board recommended a one-year suspension.

The Key finding is this one:

2. Rule 1.15(a) Safeguarding Funds
Rule 1.15(a) requires lawyers to hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds must be held in a client trust account that meets the requirements set forth in Rule 1.15. Ill. Rs. Prof’l Conduct, R. 1.15(a) (2010). Respondent’s admissions and the evidence presented at hearing establish by clear and convincing evidence that Respondent violated this Rule.
Prior to disbursing funds owed to Blossom and third parties, the balance of Respondent’s client trust account fell below the amount Respondent should have been holding on numerous occasions. Respondent admitted he transferred funds from his client trust account to his checking account from which he paid personal and business expenses. This conduct was a clear violation of Rule 1.15(a).
3. Rule 8.4(c) Dishonest Conduct
Rule 8.4(c) prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Ill. Rs. Prof’l Conduct, R. 8.4(c) (2010). Respondent’s admissions and the evidence presented at hearing established that over several months Respondent intentionally took funds he knew belonged to Blossom and third parties. Respondent treated his client trust account as a personal account, going so far as to empty the client trust account on December 13, 2016. In addition, Respondent falsely stated to Blossom in October 2016 that all of her settlement funds were available in his client trust account when he knew that was not true. Accordingly, we find the Administrator proved by clear and convincing evidence that Respondent acted dishonestly.

ARDC Review Board Recommends 90 day Suspension for Shared Law Office Fiasco

The ARDC review board has recommended a 90-day suspension for Scott Thomas Kamin, 2016 PR 97. Kamin was the main tenant in a shared law office. He fell behind on the rent. When he was served with the eviction lawsuit he took service for the subtenants but failed to notify them of the existence of the eviction lawsuit.

The facts are described as follows:

The Administrator brought a one-count complaint against Respondent, charging him with engaging in dishonest conduct in connection with an eviction matter, in violation of 2010 Illinois Rule of Professional Conduct 8.4(c). Following a hearing at which Respondent was represented by counsel, the Hearing Board found that Respondent had committed the charged misconduct and recommended that he be suspended for 90 days.
Respondent filed exceptions to the Hearing Board’s dishonesty finding as well as its sanction recommendation. He asks this Board to reverse the Hearing Board’s misconduct finding and to dismiss the complaint against him. In the alternative, he argues that, if this Board affirms the misconduct finding, he should be reprimanded or censured instead of suspended.
For the reasons that follow, we affirm the Hearing Board’s dishonesty finding and agree with its recommendation that Respondent be suspended for 90 days for his misconduct.

Respondent was admitted to practice in Illinois in 1995, and has been a solo practitioner since 1997, focusing his practice on criminal and civil rights matters. He has no prior misconduct.
In 2015 and early 2016, Respondent leased office space at 55 East Jackson Boulevard in Chicago. He, in turn, sublet office space to other attorneys, including Carla Buterman, Eric Rakoczy, Phillip Brigham, Jason Epstein, and a few others. In March 2015, Respondent fell behind in his rent payments, and in September 2015, he stopped paying rent entirely. During that time, however, he continued accepting rent payments from his subtenants, who did not know that he had fallen behind in his own rent payments, and was struggling to pay his other bills.
On November 5, 2015, attorney Allen B. Glass filed an eviction lawsuit on behalf of the landlord against Respondent personally, his law office, and the law offices of Brigham, Epstein, Rakoczy, and “unknown occupants.” Glass testified at Respondent’s hearing that the subtenants had to be named in the lawsuit for possession purposes.
On November 6, Cook County Sheriff’s Deputy Tony R. Lampkin went to Respondent’s office and served the summons on him. He asked Respondent if he was authorized to accept service for the others on the service list, and Respondent said that he was. Lampkin thus indicated on the affidavit of service that he had left copies of the summonses and complaint with authorized persons. The subtenants were not in the office at the time Respondent accepted service. Respondent thinks he put the complaint and summonses in his desk drawer.
Buterman (who was not named in the complaint), Epstein, Brigham, and Rakoczy all testified that they did not authorize Respondent to accept service of process for them, and that Respondent did not tell them about the lawsuit or that they were named as defendants.

Respondent acknowledged that he accepted service on behalf of his subtenants; that he did not seek their authority to accept service on their behalf; and that he did not tell any of them that he had accepted service on their behalf.
On at least three occasions, Glass and Respondent appeared in court on the eviction lawsuit. Respondent did not tell the judge that the subtenants were not properly served. Glass testified that Respondent represented to the court that he was appearing on behalf of himself and the other named defendants. Respondent denied making any such representation and testified that the issue of who represented the subtenants never came up. The Hearing Board credited Glass’s testimony, not Respondent’s.
Respondent told Glass that he would be able to pay his back rent when he received a settlement from the City of Chicago. Glass agreed to continue the matter a few times to give Respondent a chance to present a payment plan. But the settlement that Respondent expected did not come through, and Respondent did not present a payment plan or pay any of his back rent.
Respondent told Glass that he would be able to pay his back rent when he received a settlement from the City of Chicago. Glass agreed to continue the matter a few times to give Respondent a chance to present a payment plan. The settlement that Respondent expected did not materialize and Respondent never presented a payment plan or paid any of his back rent.
Consequently, on January 21, 2016, the court entered an order of eviction and a judgment of $43,468.48 against Respondent and his law office subtenants. Respondent’s subtenants learned of the order of eviction around the time it was entered, or shortly thereafter.
Buterman testified that she learned about the impending eviction around January 19, when another subtenant, who was not named in the complaint, told her he thought they were being evicted. Respondent told Buterman about the eviction about a day later. He showed her a copy of the eviction complaint, after she asked to see it, but did not give her a copy. According to Buterman, Respondent said he had accepted service of the complaint on behalf of everyone in the office and then put the complaint in his drawer because he did not want anyone to know he had been served with the complaint. He told her that he did not notify her about the eviction because he feared the subtenants would leave before he had a chance to work things out with the landlord.
Rakoczy testified that Respondent told him about the eviction at the end of January. Respondent did not tell him that an order of possession had been entered or show him the complaint or summons. Rakoczy did not learn about the lawsuit or that he had been named as a defendant until after he had moved out in February. He learned about the lawsuit from either Brigham or Buterman.
Brigham testified that he learned of the eviction from Rakoczy, and that Respondent came to talk with him later that day or the next day. Respondent told Brigham he made a business decision not to notify anyone and that he thought he would be able to resolve the eviction lawsuit because he had expected some cases to settle. Respondent did not show or give Brigham a copy of the complaint, or tell Brigham that he was named as a defendant.
Epstein testified that he learned of the eviction when Respondent and another male subtenant came into his office and told him they had to move in ten to fourteen days. He did not recall Respondent saying that a lawsuit had been filed and that he had been named as a defendant. Respondent did not give Epstein a copy of the complaint or summons, or tell Epstein that he had accepted service on Epstein’s behalf. Epstein learned about the judgment after his conversation with Respondent.
After all of the tenants had moved out of 55 East Jackson, Rakoczy, Brigham, and Epstein filed motions to vacate the judgment against them, on the ground that service was improper because Respondent was not authorized to accept service for them. Glass agreed to vacate the judgment against the subtenants, and the court issued an order vacating the judgment against them.

HEARING BOARD’S FINDINGS AND RECOMMENDATION
Misconduct Findings 

The Hearing Board found that Respondent had committed the misconduct with which he was charged – engaging in dishonest conduct in violation of Rule 8.4(c) by stating to Deputy Lampkin that he was authorized to accept service on behalf of the subtenants when he was not; failing to inform the court he did not have authority to accept service or appear on behalf of the subtenants; and concealing the eviction lawsuit from the subtenants.
Regarding the misrepresentation to Lampkin, the Hearing Board inferred dishonesty from the circumstances. It found that, contrary to Respondent’s assertion to Lampkin, he did not have authority to accept service on behalf of the subtenants nor did he have reason to believe that he had such authority. It reasoned that, given his experience as an attorney, his financial troubles, and his subsequent concealment of the lawsuit from his subtenants, it did not believe that his representation to Lampkin was an innocent mistake.
The Hearing Board also found that Respondent had concealed the lawsuit from his subtenants, noting that he kept the complaint and summonses in his desk drawer and decided not to tell the subtenants about the lawsuit or that they were named defendants in it. It found not credible Respondent’s explanation that not telling the subtenants about the lawsuit was a business decision, finding it more likely that he did not want the subtenants to learn that he had not been remitting their payments to the landlord and wanted to continue receiving their payments in order to pay his expenses. It found credible the subtenants’ testimony that Respondent did not provide them with a copy of the complaint after informing them of the impending eviction, which it found to be further evidence of his intent to conceal their status as defendants. It found it apparent that Respondent did not want the subtenants to know they were parties to the lawsuit or that he had taken action on their behalf without their knowledge and consent.
And last, the Hearing Board found that Respondent’s failure to inform the court that he had accepted service on behalf of the subtenant defendants without their authority was dishonest. It found that he knew he had accepted service without authority and that the subtenants had no knowledge of the lawsuit and were not properly before the court, and yet he made no effort to advise the court of the improper service, even after the subtenants were named in the order of possession. It found that, as an officer of the court and the only party who knew of the improper service, he had an obligation to inform the court of the facts of the case. It thus concluded that Respondent intentionally concealed information about service from the court, and from opposing counsel, because he did not want anyone involved in the lawsuit to know he was acting without the subtenants’ authority.

The Review Board upheld the finding of a violation of Rule 8.4(c).

ARDC Hearing Board Recommends 90-day suspension for Revealing Confidences and Seeking Client’s Agreement Not to Make Disciplinary Complaint

The case is In re Laura Lee Robinson, 2016 PR 000126.

The facts are reported as follows:

“In May 2015, Respondent began representing John Quincy Adams IV in some criminal and traffic matters. She and Adams entered into a retainer agreement, which she prepared and presented to him and which provided, in part:
Client agrees to make all matters of said representation confidential between client(s), his/her agents, assigns and principals and to refrain from reporting any phase of said representation to any external agency, including but not limited to the Missouri Bar, ARDC etc.
(Hearing Bd. Report at 4 (citing Admin. Ex. 1).)
Respondent represented Adams until March 2016. On March 2, Adams filed with the court a handwritten motion stating that he would like to fire Respondent and hire different counsel. That same night, Respondent and Adams had a phone conversation. Respondent testified that he told her he had made up his mind to fire her, that he was going to get her in trouble, and that he had filed a complaint against her. He did not tell her that he had already filed a motion to dismiss her as his counsel.
Following their phone conversation, Respondent drafted a letter to Adams in which she referred to his “horrible criminal past” and a “violent criminal past;” stated that he has been “arrested and/or convicted in Missouri at least fourteen times;” stated that he “wanted to bribe the court in some manner;” and called him a “paranoid ingrate and miserable con man who
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tries to blame everyone else but yourself for YOUR misdeeds TO WHICH YOU CONFESSED.” (Hearing Bd. Report at 11 (emphasis in original).)
A hearing on Adam’s motion was set for March 10, and notice of the hearing was sent to Respondent on March 3. On March 9, Respondent filed an answer to Adam’s motion with the Circuit Court of Monroe County, and attached the above-quoted letter to her answer. It thus became a matter of public record.
Respondent testified at her hearing that she was “in a blur” and “upset” when she wrote the letter because of Adams’ rant during their conversation. She further testified that she included the letter with her filed answer out of “just frustration,” because she was “enraged” and in a “rage of emotion,” and “reacted on ? [her] own personal hurt.” She acknowledged that the letter contained confidential information that she should not have disclosed without her client’s consent; that the filing of the letter was “wrong;” and that she “was not justified” in filing it. (Hearing Bd. Report at 17.)”
The ARDC Hearing Board and the Review Board ordered a 90-day suspension of the attorney.
Rule 8.4(h) provides that “It is professional misconduct for a lawyer to “
enter into an agreement with a client or former client limiting or purporting to limit the right of the client or former client to file or pursue any complaint before the Illinois Attorney Registration and Disciplinary Commission.”

In my opinion, there is no doubt that the lawyer violated that rule by inserting the provision in her engagement letter.
Rule 1.6(a) provides that: “ (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).

Again, revealing the draft letter in which the lawyer noted that the client had “confessed” was obviously (in my opinion) evealing confidential information to the detriment of the client.

The Board also found that the respondent did not fully accept responsibility for her actions.

Edward X. Clinton, Jr.