ARDC Charges Lawyer With Providing False Documents

The ARDC has filed a complaint against a lawyer arising out of his representation of a convicted murderer. The lawyer filed a motion for reduction of the sentence, but failed to take action to obtain a decision on the motion. Unfortunately, the lawyer is also accused of created false correspondence and submitting that correspondence to the ARDC. Count II sets forth the allegations:

“8. On July 12, 2019, the Administrator docketed an investigation of Respondent after receiving a request for investigation from McBride. McBride’s request for investigation stated that Respondent had not communicated with him after an initial contact immediately after Respondent’s appointment to represent McBride. McBride stated that he had made telephone calls and written letters to Respondent but had not gotten responses.

9. On July 23, 2019, Counsel for the Administrator sent a copy of the report to Respondent and requested that he respond to the report within 14 days. Respondent did not respond.

10. On August 14, 2019, Counsel for the Administrator sent Respondent a second letter stating that his response had not been received, he had a duty to comply, and that he should provide his response within seven days.

11. On August 25, 2019, Respondent provided a written response to the ARDC in which he stated he had had two telephone calls with McBride and that he had responded to correspondence from McBride.

12. Respondent’s statements in his August 25, 2019 response were false, because he had not had two telephone calls with McBride and he had not responded to McBride’s correspondence.

13. Respondent knew at the time he provided the August 25, 2019 response in paragraph 12 that the response was false.

14. On February 14, 2019, Respondent appeared for a sworn statement in the ARDC’s Springfield office. Prior to the commencement of the sworn statement, Respondent provided Counsel for the Administrator with 15 letters and represented that the letters were the correspondence he had mailed to McBride.

15. Respondent’s representation that he had mailed the 15 letters to McBride was false, because he did not mail the letters to McBride and created them at a later date.

16. Respondent knew at the time he provided the 15 letters to Counsel for the Administrator that they were false.

17. Respondent generated the letters described in order to mislead the Administrator.

18. During his February 14, 2019 sworn statement, Respondent stated that he provided 15 letters to Counsel for the Administrator which represented his correspondence he had sent to McBride.

19. Respondent’s representation during his sworn statement that he had corresponded with McBride in 15 letters was false, because he had not sent the letters to McBride.

20. Respondent knew at the time he made the statement in paragraph 18 that it was false.

21. During his sworn statement, Respondent also stated “I can’t speak to why he [McBride] wasn’t getting the letters. I mailed them to him.”

22. Respondent’s statement in paragraph 21 that he had mailed the letters to McBride was false, because he generated the letters at a later date to mislead the Administrator.

23. Respondent knew at the time he made the statement in paragraph 21 that it was false.

24. By reason of the conduct described above, Respondent has engaged in the following misconduct:

1, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010), by conduct including knowingly making the false statements described in paragraphs 11, 14, 18, and 21 and by creating and presenting 15 letters to Counsel for the Administrator which Respondent falsely represented that he had sent to McBride.”

Comment: I have not included the lawyer’s name because these charges have not been proven or admitted. The obvious point here is that if you make a mistake you should tell the truth and own up to it and accept the consequences. Creating false paperwork is only going to make the result worse than it otherwise would have been. Should you have a question concerning an ARDC inquiry, do not hesitate to contact me. I am always available to take calls from lawyers who have questions about the ARDC process.

Ed Clinton, Jr.

http://www.clintonlaw.net

ARDC Claims That Lawyer Created Websites To Make False Statements About A Judge

Note: this is a complaint filed by the ARDC. The allegations are not proven. There has been no trial and no opportunity to defend the case. The ARDC obtained the factual basis for its allegations from, presumably, a subpoena to Godaddy, an internet provider. The ARDC also placed the lawyer under oath so that the lawyer was required to answer the questions. (Because this is a complaint, I have not included the respondent’s name in this post.)

The Complaint’s main allegations are quoted below:

1. On or about September 11, 2018, Respondent purchased the domain name “firetheliarjudge.com” from GoDaddy, and used GoDaddy to create a website for “firetheliarjudge.com”.

2. Respondent created the firetheliarjudge.com website as part of an anti-retention campaign against Judge Andrew Gleeson, the Chief Judge of the 20th Judicial Circuit, who was running for retention in the November 6, 2018 general election.

3. Respondent linked the firetheliarjudge.com website to a Facebook page entitled “Madeline M. Dinmont”. Madeline M. Dinmont was a fictitious name created and used by Respondent.

4. In or around October 2018, Lori Friess (“Friess”) organized an anti-retention campaign against another judge in the 20th Judicial Circuit, Judge Zina Cruse. Friess called the campaign “Justice For Kane”, in recognition of her two year-old grandson, Kane Friess-Wiley, who had been killed in April 2017. Friess’ daughter’s former boyfriend, Gyasi Campbell (“Campbell”), had been charged with Kane’s murder. On April 2, 2018, Judge Cruse reduced Campbell’s bond from $1 million to $150,000 which allowed Campbell to post bond and be released from custody pending trial.

5. On or around October 4, 2018, Respondent posted the following entry on the firetheliarjudge.com website:

A FAILURE TO VOTE IS A YES VOTE ON RETENTION!

Kane’s founder has a vendetta against a judge who followed the law.

Why Judge Gleeson Must Go!

Judge Zina Cruse is a female African American Judge from East St. Louis. The Justice For Kane anti-retention campaign is the brain child of Gleeson & others to run a female minority judge off the bench in order to preserve their white male privilege.

6. Respondent’s statements described above, that the Justice For Kane anti-retention campaign was the “brain child” of Judge Gleeson and others and Judge Gleeson wanted to run a female minority judge off the bench to preserve his white male privilege was false because Judge Gleeson had no involvement in the Justice For Kane group or any group or effort seeking to remove Judge Cruse from the bench.

7. Respondent knew her statements described in paragraph 5, above, were false at the time she made them and posted them to the firetheliarjudge.com website or she made them with reckless disregard as to their truth or falsity.

8. On or about October 4, 2018, Respondent posted the following entry on the firetheliarjudge.com website:

JFK [Justice For Kane] is a WHITE SUPREMACIST GROUP!

JKF is a front for a WHITE SUPREMACIST GROUP called the National Association for Majority Equality which Judge Gleeson supports. That is why they are targeting judges of color and that is why their members ares [sic] exclusively white.

9. Respondent’s statement that Judge Gleeson supports a white supremacist group called the National Association for Majority Equality (“NAME”) was false because Judge Gleeson did not support or have any involvement with NAME or any white supremacist group or with the Justice For Kane campaign.

10. Respondent knew her statement described in paragraph 8, above, was false at the time she made it or she made it with reckless disregard as to its truth or falsity.

11. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. making statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer by making the statements set forth in paragraphs 5 and 8, above, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct (2010).

COUNT II
(False and or reckless statements about the qualifications or integrity of a judge
on Facebook page entitled “Madeline M. Dinmont”)

The Administrator realleges and incorporates paragraphs 1 through 10, of Count I above.

12. On or before September 14, 2015, Respondent created a Facebook page entitled “Madeline M. Dinmont” (“Dinmont page”). Respondent used the fictious name Madeline Dinmont in her interactions with GoDaddy concerning the firetheliarjudge.com website.

13. On or about October 5, 2018, Respondent posted the following entry on the Dinmont page:

Gleeson is part of the St. Clair County Secret Order of the
 Hibernians. That’s why he uses the Irish clover. Wanna [sic]
 guess how many of its members are persons of color? None.
Wanna [sic] see Gleeson in his “chief” regalia?

Respondent then posted a photograph of a Klu Klux Klansman dressed in a white robe and hood with the name tag “Gleeson” pinned to his chest over an Irish clover. The picture also depicted a noose and a confederate flag and was captioned “Vote No Retention!” (see Exhibit 1 attached)

14. Respondent’s posts described in paragraph 13, above, were false because Judge Gleeson was not a member or part of a “secret order of the Hibernians”, he was not a member of the Klu Klux Klan, and the person depicted by Respondent on the Dinmont page was not Judge Gleeson.

15. Respondent knew her postings described in paragraph 13, above, were false at the time she made them or she made them with reckless disregard as to their truth or falsity.

16. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. making statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer by making the statements set forth in paragraph 13, above, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct (2010).

COUNT III
(False statements to the Administrator)

The Administrator realleges and incorporates paragraphs 1 through 15, of Counts I and II above.

17. On July 2, 2019, Respondent appeared at the Springfield ARDC office to provide sworn testimony related to matters described in this complaint.

18. During the sworn statement, Respondent was asked the following questions and gave the following answers:

Q: Okay. What do you know about the website firetheliarjudge.com?

A: It was a website set up for the anti-retention campaign

Q: And who set it up?

A: I don’t know.

Q: What role did you have in creating either the website or the domain name?

A: I was asked how you go about setting up a domain name and I suggested that they go through GoDaddy.

Q: When you say you were asked, who asked you?

A: Judge Duebbert.

Q: Okay. So did Judge Duebbert set up this website firetheliarjudge.com?

A: I don’t know if he did it or if he had somebody else do it.

Q: You had no involvement in setting up the site?

A: No, and I didn’t manage it either.

Q: Have you ever posted anything to the site firetheliarjudge.com?

A: No.

19. Respondent’s statement above that she did not know who set up the firetheliarjudge.com website was false because Respondent set up and paid for the website through GoDaddy.

20. Respondent’s statement above that she did not manage the website was false because she managed the website, she linked it to the Dinmont page and she linked it to another website she created entitled “firejudgegleeson.com”.

21. Respondent’s statement above that she never posted anything on the firetheliarjudge.com website was false because she made posts on the website, including the conduct described in Counts I and II in this complaint.

22. Respondent knew that her statements described in paragraphs 19 through 21, above, were false at the time she made them.

23. During the sworn statement on July 2, 2019, Respondent was asked the following questions and gave the following answers:

Q: Okay. So my question is with regard to these entries on firetheliarjudge.com, did you have anything to do with creating, making, or responding to these entries?

A: No. I tried to help them set it up and then it was taken over by somebody who was a non-lawyer.

Q: Okay. And when you said you tried to help them set it up, who are you talking about?

A: Well, the people that were involved in the anti-retention campaign by telling them you can go to GoDaddy and they have templates, that kind of thing.

Q: Okay. And who was that? Who specifically are you talking about?

A: It was Judge Duebbert and his web person.

Q: Who was that?

A: I don’t know. I don’t even know when this was set up.

Q: Were you the domain – did you own the domain name firetheliarjudge.com?

A: No.

Q: Did you set it up?

A: No, but I tried to help them set it up.

Q: Well, specifically what does that mean?

A: To get into GoDaddy and set up an account.

Q: But you didn’t set up the account at GoDaddy?

A: No, nor did I have control over it.

Q: Do you know what e-mail address they used when they set up the firetheliarjudge.com?

A: I don’t.

Q: Do you know if they used Madeline Dinmont’s e-mail address?

A: I don’t know.

24. Respondent’s statement above that she had no role in creating, making or responding to entries on the website firetheliarjudge.com was false because she did create the website and she did make various postings to the website as described in Counts I and II above.

25. Respondent’s statements above that she did not know when the website firetheliarjudge.com was set up and that she did not own the domain name “firetheliarjudge.com” were false because she set up and paid for the domain name and website firetheliarjudge.com through GoDaddy on or about September 11, 2018.

26. Respondent’s statements above that she did not set up or “have control” over the firetheliarjudge.com website were false because Respondent set up and controlled the domain name and website using her GoDaddy account.

27. Respondent knew that her statements described in paragraphs 24 through 26, above, were false at the time she made them.

28. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. knowingly making a false statement of material fact in connection with a disciplinary matter by making the false statements described in paragraphs 19 through 21 and 24 through 26, above, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010); and
  2. conduct involving dishonesty, fraud, deceit, or misrepresentation by making the false statements described in paragraphs 19 through 21 and 24 through 26, above, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

COUNT IV
(False or reckless statements about the qualifications or integrity of a judge – GoDaddy)

The Administrator realleges and incorporates paragraphs 1 through 27, of Counts I, II and III above.

29. On September 17, 2018, Respondent contacted GoDaddy customer service concerning the website firetheliarjudge.com. Respondent identified herself to the operator as Madeline Dinmont. Respondent also identified herself as the administrator of the website firetheliarjudge.com.

30. During the telephone conversation, Respondent told the operator that she wanted to pay for the firetheliarjudge.com website through PayPal on a “month to month” basis because she would not need the site to be operational after the November 5, 2018 general election.

31. During the telephone conversation, the following exchange occurred:

Operator: That’s why you want to go month to month?

Respondent: Yeah.

Operator: Makes sense,

Respondent: Because the election will be over the 5th.

Operator: Yeah. And you hope these people read it and do the right thing, right?

Respondent: If only you knew.

Operator: I was glancing through the website, so I hear you.

Respondent: No. I mean, it’s not a very nice person [Judge Gleeson]. And he’s done a lot of things to hurt a lot of people. So that’s part of the reason that we’re getting all the crank calls.

Operator: That’s too bad.

Respondent: You know, this part of the United States, politics is a blood sport.

Operator: True.

Respondent: I mean, I will tell you how evil it is. They’ve attempted to set up another judge of a different political party for murder if that tells you anything.

Operator: Wow.

Respondent: And this is the guy who orchestrated it.

Operator: That’s crazy.

Respondent: So we had the Department of Justice in here. No, I’m not kidding you.

Operator: You wonder how people like that stay elected.

Respondent: Well, that’s what we’re working on. And frankly, I’ve never practiced law in a jurisdiction where it was like this.

32. Respondent’s statements in paragraph 31, above, that Judge Gleeson “orchestrated” an attempt to set up another judge for murder were false because Judge Gleeson never engaged in the conduct which Respondent described to the operator.

33. Respondent knew her statements in paragraph 31, above, were false or she made them in reckless disregard of their truth or falsity.

34. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

making statements the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer by making the statements set forth in paragraph 31, above, in violation of Rule 8.2(a) of the Illinois Rules of Professional Conduct (2010).

Typical Fraudulent Scam Email

Now that many lawyers are working from home be aware of email scams like this one:

My Name is Micheal Crowe,I am requesting to know if you can help to enforce a loan agreement. I assisted a business associate/friend Mr.James Smith(who lives in your state and had the agreement in accordance with the laws of the same)a loan and he has defaulted to make payment at the stipulated time.I want to take legal action to see that the money is repaid back to me.Please let me know if you can be of assistance to me or make a referral.

There are several red flags in this email. First, the debtor has a common name “Mr.James Smith.” Second, he states that the debtor “who lives in your state and had the agreement in accordance with the laws of the same.” Third, note that the debtor “has defaulted to make payment at the stipulated time.” This is clearly someone who is not familiar with the English language.

Comment: if you have a question about a potential scam, talk to a colleague or the ARDC or an ethics attorney.

Ed Clinton, Jr.

ARDC Hearing Board Recommends Disbarment for Former Governor

The case captioned In re Rod R. Blagojevich, 19 PR 00061, the ARDC Hearing Board recommended disbarment for the former governor. He was placed on interim suspension in 2011, but his disciplinary case was not completed until his prison sentence was commuted by President Trump. The Hearing Board, in a brief opinion, explained why disbarment was appropriate:

The hearing in this matter was held on February 25, 2020, at the Chicago offices of the Attorney Registration and Disciplinary Commission, before a Hearing Board Panel consisting of Carl (Carlo) E. Poli, Chair, Jennifer W. Russell, and Jim Hofner. Respondent was not present. Sheldon M. Sorosky appeared on Respondent’s behalf. Christopher R. Heredia and Jonathan M. Wier appeared on behalf of the Administrator and recommended that Respondent be disbarred.

We have considered the following: the Administrator’s one-count Complaint, a copy of which is attached as Exhibit 1; the Order entered on September 10, 2019, deeming the allegations of the Complaint admitted, a copy of which is attached as Exhibit 2; and the Administrator’s Exhibits 1-6, which were admitted into evidence.

Respondent, the former Governor of the State of Illinois, was convicted of committing numerous crimes while he was in office. Those crimes included wire fraud, attempt to commit extortion, corrupt solicitation, conspiracy to commit extortion, conspiracy to commit corrupt solicitation, and making false statements to the Federal Bureau of Investigation, in violation of Title 18, U.S.C. secs. 371, 666(a)(1)(B), 1001(a)(2), 1343, 1346, and 1951(a). Respondent’s convictions of these crimes were upheld by the United States Court of Appeals for the Seventh Circuit. The Supreme Court of the United States denied Respondent’s petitions for writ of certiorari. On October 26, 2011, the Illinois Supreme Court placed Respondent on interim suspension, which is still in effect.

Respondent was represented by counsel throughout this proceeding but elected not to file an answer, comply with discovery requests, appear for deposition, or appear at the hearing in this matter. While he was incarcerated, Respondent’s appearance at the hearing had been waived. The Panel takes judicial notice, however, that Respondent’s sentence was commuted and he was released from prison on February 18, 2020. Therefore, it was possible for Respondent to appear for his disciplinary hearing.

There are numerous factors that aggravate Respondent’s misconduct. As a former Assistant State’s Attorney and elected official, Respondent was well aware of his obligation to uphold the law, and, as governor, he took an oath to faithfully discharge the duties of the office of governor to the best of his ability. Instead of doing so, he sought to further his own interests by engaging in a pattern of dishonest and deceptive conduct. While Respondent, by his attorney, acknowledged the fact of his convictions, he has not acknowledged that his conduct was wrongful or expressed any remorse. His failure to appear for his disciplinary hearing demonstrates a lack of respect for the disciplinary process and the legal profession. We have considered that Respondent has no prior discipline, but this minimal mitigation does not impact our recommendation.

The following cases cited by the Administrator support the recommendation of disbarment: In re Pappas, 92 Ill. 2d 243 (1982); In re Rosenthal, 73 Ill. 2d 46 (1978).

Based on Respondent’s egregious misconduct, the substantial amount of aggravation, the case law presented by the Administrator, and the lack of case law or any mitigation evidence  presented by Respondent, we conclude that a recommendation of disbarment is warranted.

Accordingly,

  1. “Respondent’s counsel accepted electronic service of the Complaint and accompanying documents. A copy of the Entry of Appearance and Acceptance of Service Pursuant to Rule 214(d) filed on August 8, 2019 is attached as Exhibit 3.
  2. The allegations of the Complaint were deemed admitted in an Order filed on September 10, 2019. A copy of that Order is attached as Exhibit 2.
  3. In consideration of the Order deeming the allegations of the Complaint admitted, we find Respondent committed the misconduct charged in the Complaint.
  4. Given Respondent’s serious misconduct, the significant aggravation, and the case law cited by the Administrator, we recommend that Respondent, Rod R. Blagojevich, be disbarred.
  5. The Panel has concluded that this report format will adequately and appropriately communicate its recommendation to the Court.”

North Carolina Issues Advisory Opinion On Responding to Negative Reviews

One of the more common problems lawyers face is the negative online review. (Yes, I am proud to say that I have earned the ire of two prospective clients who published reviews of me). Lawyers tend to get into trouble when they share confidential client information in response to a negative review. Like most gaffs the information is true and accurate, but it is confidential to the lawyer. Lawyers have been disciplined for disclosing confidential information in responses to online reviews.

My advice is that any negative review should receive a response such as “I respectfully disagree with this review.” The North Carolina Bar Association has issued an advisory opinion that makes a similar recommendation. The recommendation can be found here https://www.ncbar.gov/for-lawyers/ethics/proposed-opinions/

In response to the former client’s negative online review, Lawyer may post a proportional and restrained response that does not reveal any confidential information. The protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer may not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent, (2) the disclosure is impliedly authorized, or (3) one of the exceptions set out in Rule 1.6(b) applies. Rule 1.6(a) applies to all information acquired during the representation. Under Rule 1.9(c), a lawyer is generally prohibited from using or revealing confidential information of a former client. Therefore, Lawyer may not reveal confidential information in response to the negative online review unless the former client consents or an exception set out in Rule 1.6(b) applies. See 2018 FEO 1 (lawyers are cautioned to avoid disclosing confidential client information when responding to a negative review).

Comment: when you receive a negative review you should (a) assess the situation privately; (b) determine if it is something you can control; and (c) respond in a low-key fashion. Remember that negative reviews are just part of practicing law in the digital age. Take your lumps and move on. You will be just fine.

Ed Clinton, Jr.

Ohio Reprimands Lawyer For Violation of Rule 7.3(a)

This case, Columbus Bar Assn. v. Bahan, 2020-Ohio-434, decided February 12, 2020, involved a lawyer who learned that a woman had been incarcerated and had been charged with murder. Ms. Bahan visited the defendant in the jail and solicited employment. Although she was not retained, Ms. Bahan was disciplined by the Supreme Court of Ohio for violating Rule 7.3(a) (“a lawyer shall not, by in-person, live-telephone, or real-time electronic contact, solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain”). The facts show an assertive effort to obtain employment in an important case.

{¶ 4}Bahan was admitted to the practice of law in Ohio in 2005 and has never been the subject of disciplinary proceedings in this court. She is a solo practitioner and primarily practices criminal defense, juvenile law, and probate law.

{¶ 5}On March 10, 2017, Kennedy was arrested for the murder of her husband and taken to the Logan County jail. Bahan did not know Kennedy but became interested in the case after learning of the arrest and seeing Kennedy’s picture on the Internet. Bahan thought that perhaps Kennedy had been a victim of domestic violence and that the entire incident had arisen because Kennedy was trying to protect herself. Bahan contacted attorney Marc Triplett to ask him what he thought about her visiting Kennedy in jail. Triplett is an experienced criminal-defense lawyer who is certified to be court-appointed counsel in murder cases. Bahan had worked with Triplett as co-counsel in previous felony cases. Triplett advised Bahan that he did not see any problem with visiting Kennedy for the purpose of assuring that Kennedy’s rights were protected.

{¶ 6}Bahan visited Kennedy at the jail the day after Kennedy’s arrest. Bahan advised Kennedy not to give any statements to the police. She also advised Kennedy that she needed an attorney and that Kennedy needed to consider whether she could afford to retain private counsel. She also explained how Logan County appoints counsel for defendants who cannot afford private counsel. Kennedy told Bahan she was considering hiring Triplett to represent her and asked Bahan to contact Triplett. At a second visit with Kennedy, Bahan brought a proposed fee agreement listing only her name as counsel and also discussed legal strategy with Kennedy. Kennedy was then indicted for murder; her arraignment was scheduled for March 17. Bahan met Kennedy’s daughters and examined the crime scene. At that meeting, Bahan discussed her legal fees and requested a down payment. She also asked Kennedy’s daughters whether they had access to Kennedy’s bank accounts and credit cards and discussed the possibility of selling assets and SUPREME COURT OF OHIO 4livestock, but the parties agree that Bahan asked these questions in part to determine whether Kennedy was eligible for court-appointed counsel.

{¶ 7}When Bahan contacted Triplett as Kennedy had requested, Triplett told Bahan that he could not represent Kennedy. Nonetheless, Bahan filed a notice of appearance in Kennedy’s case as well as a request for a bill of particulars, a motion to preserve evidence, and a demand for discovery. Bahan also visited Kennedy at the jail a final time and there learned that Kennedy knew that Triplett could not represent her. Kennedy told Bahan that she had retained other counsel. Bahan contacted Kennedy’s new counsel to confirm that Kennedy would have representation at her arraignment and withdrew from Kennedy’s case. In a text to the daughters, Bahan indicated that she hoped she would be paid for the work she had performed on Kennedy’s behalf. On April 14, Bahan sent Kennedy an itemized bill in the amount of $1,400; this amount included charges of $300 for the first jail visit and $400 for the second jail visit. Kennedy did not pay the bill, and Bahan did not pursue Kennedy for payment.

Comment: there is a long tradition in the legal profession which frowns upon lawyers who contact prospective clients directly and seek to represent them. (This is the same tradition that frowns upon advertising) This reprimand is consistent with that tradition. Note it is not a violation of Rule 7.3(a) if you know the defendant or if the defendant’s family members contact you and send you to the jail to meet the client or if you are a public defender appointed by the court.

Ed Clinton, Jr.

http://www.clintonlaw.net

Ohio Orders One-Year Stayed Suspension For Sex With Client

The only issue in the case of Akron Bar Association v. Fortado, 2020 Ohio 517.J, was the attorney’s sexual relationship with his client. The relationship commenced after the attorney-client relationship. The lawyer violated Rule 1.8J which prohibits sex with a client (unless the lawyer and client had a pre-existing sexual relationship). The facts are described in this way:

{¶ 6}In February 2011, M.S. retained Fortado to represent her in a civil matter. Approximately six months later, Fortado commenced an intimate sexual relationship with M.S. Fortado’s legal representation of M.S. concluded in February 2012, with the settlement and dismissal of the action filed against M.S. After their intimate relationship concluded in the fall of 2014, Fortado represented M.S. in two other civil matters. Their relationship remained friendly until 2016, when M.S. discharged Fortado as her attorney in a personal-injury case. Fortado testified that M.S. initiated the intimate relationship by making repeated friendly overtures toward him and that he truly cared—and continues to care—for her. But he also admitted without qualification that it was wrong for him to have entered into the intimate relationship while he represented M.S. {¶ 7}The parties stipulated, the board found, and we agree that Fortado’s conduct violated Prof.Cond.R. 1.8(j).

… {¶ 21}Based on the unique facts of this case—including the absence of any evidence of coercion, Fortado’s acceptance of responsibility for his wrongdoing, his full cooperation in these proceedings, and his strong character and reputation evidence—and having carefully considered the sanctions we have imposed in other cases involving similar misconduct, we sustain Fortado’s objection to the board’s recommended sanction. Moreover, we agree that a conditionally stayed one-year suspension is the appropriate sanction for Fortado’s misconduct. {¶ 22}Accordingly, Matthew Fortado is suspended from the practice of law for one year, fully stayed on the condition that he engage in no further misconduct. If Fortado fails to comply with the condition of the stay, the stay will be lifted and he will serve the entire one-year suspension. Costs are taxed to Fortado.

Comment: it is unusual for a lawyer who engaged in a sexual relationship with a client to avoid a suspension. Indeed, Justice Kennedy dissented on the ground that the lawyer should have received at least a six month suspension from the practice of law.

Illinois Hearing Board Recommends 60-Day Suspension for Lawyer Who Ignored MCLE Requirements

The ARDC Hearing Board ordered a 60-day suspension for a lawyer who did not comply with the MCLE (continuing legal education) requirements and practiced while he was removed from the Master Roll of attorneys.

The Hearing Board Opinion, dated January 2, 2020, summarizes the facts in this manner:

Respondent was employed as an Assistant McLean County State’s Attorney from July 5, 2016 through November 29, 2017. (Tr. 158). Between April 19, 2017 and November 21, 2017, Respondent routinely appeared in court on behalf of the State and was responsible for about 300 cases at a time. He practiced law during that time. (Tr. 169-71).

A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. Ill. Rs. Prof’l Conduct R. 5.5(a). An attorney who practices law when he or she has been removed from the master roll for failing to comply with MCLE requirements violates Rule 5.5(a). In re James, 09 CH 40, M.R. 25222 (May 18, 2012).

Respondent’s defense involved his state of mind, i.e. that he thought he had completed the MCLE requirements and did not know he had been removed from the master roll. However, to prove a violation of Rule 5.5(a), the Administrator is not required to establish that the attorney intentionally or knowingly engaged in the unauthorized practice. Thomas, 2012 IL 113035 at par. 77. Rule 5.5(a) is a strict liability offense and makes no exception for an attorney who is uninformed or confused about the status of his or her license. Id.; see also In re Susman, 2009PR00126, M.R. 26102 (Sept. 25, 2013). Respondent was removed from the master roll on April 19, 2017. He continued to practice law thereafter. The Administrator proved Respondent violated Rule 5.5(a).

The ARDC Hearing Panel noted that there was some aggravating circumstances. Essentially the lawyer ignored the MCLE reporting system and tried to prove attempted compliance by claiming that he called the MCLE Board and spoke with them.

The Illinois Attorney CLE system is easy to use. The system requires you to log on every two years and certify, under oath, that you completed the coursework (20+ hours of coursework including some ethics coursework). You can ask for an extension to complete the courses, but you must truthfully own up to the fact that you did not complete them on time. I have had no issues with this system or the CLE requirements of Illinois.

Should you find yourself in such a sticky situation, do not hesitate to contact me. I can often resolve something like this before it gets out of hand.

Ed Clinton, Jr.

The source document is In Re William Layne Roberts, 2019 PR 21.

ARDC Accuses Lawyer of Double-Billing

Tbe ARDC has filed a complaint against a lawyer accusing him of double billing clients. Because these allegations are unproven, I won’t share his name in this post.

1. Respondent was employed at the Chicago law firm of Vedder Price, P.C., from 2005 (when he was hired to work as a summer associate) through October 2, 2019 (when his employment was terminated as a result of the events described in this complaint). During his time at the firm, Respondent was involved in the representation of a financial institution (“the client”) in various finance and leasing matters involving other companies. The client’s agreements with its lessees allowed for the firm’s fees for services it provided the client to be billed to the lessees (i.e., the client’s customers) under certain circumstances.

2. In 2009, the firm performed services for a separate client (a construction company) in connection with a contract dispute. The firm assigned that matter an internal number that it used for billing purposes, and Respondent was aware of that number because he was the billing attorney responsible for the matter. That billing number became dormant in 2011, about two years after the firm’s involvement in the contract dispute ended.

3. Prior to January 17, 2018, attorneys and others at the firm performed services having a value of $23,782.50 for the client in connection with the novation of a lease from one lessee to another lessee (an affiliate of the original lessee). Around that time, Respondent instructed the firm’s accounting department to reactivate the formerly dormant billing number associated with the matter referred to in paragraph two, above, and he fabricated a billing invoice addressed to the client’s customer that asked the customer to pay the firm $23,782.50. Respondent later caused that fabricated invoice to be sent to the client’s customer, which paid the full amount listed in the invoice to the firm.

4. When the firm received the $23,782.50 payment in response to the fabricated invoice, Respondent directed the firm’s accounting department apply that payment as a credit to the formerly dormant billing account, which he controlled.

5. Respondent also caused the client to be billed separately for the legal services the firm provided in connection with the novation of the lease, using the client’s actual billing number. When the firm received payment from the client, it applied that payment to the client’s account. 

6. Between January 31, 2018 and September 27, 2019, Respondent fabricated an additional eight invoices to the client’s customers, each of which used the formerly dormant billing account number rather than the client’s actual billing number. At least some of those invoices asked that payment be sent to Respondent’s home rather than to the firm. As payments totaling $108,674 were received in connection with those invoices, Respondent caused those amounts to be transferred to the dormant account that he controlled. At the same time, Respondent continued to bill the client for the same legal services, and to apply any payments resulting from those invoices to the client’s account.

7. Respondent did not tell anyone associated with the client or with the firm about the fact that he was billing both the client and its customers for certain legal services, or that he was using a formerly dormant billing number to receive payments resulting from the fabricated invoices.

8. In 2018 and 2019, Respondent caused business and personal expenses that he incurred (including golf fees, dining and travel expenses) to be charged against the formerly dormant account, and requested and received payment of at least $79,790.43 from that account. Respondent knew that neither the firm nor the client were aware that he was charging those expenses to the formerly dormant account, and that neither the firm nor the client had authorized him to use those funds or that account to pay for his business and personal expenses. Respondent’s receipt and use of those funds constitutes conversion.

9. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including fabricating invoices using a dormant billing number, double-billing for the same services, and converting payments from the fabricated invoices, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of facts and law, and a recommendation for such discipline as is warranted.

Comment: If proven, this is an almost-certain disbarment.