Tag: Rule 8.4

Review Board Recommends Six Month Suspension for Lawyer Who Notarized A Signature Without Witnessing The Signature

Filed July 30: (In re Russell James Stewart).

This is a decision of the Illinois Review Board which hears appeals from decisions of the Illinois Hearing Board. The respondent was accused (and admitted) to falsely notarizing the signature of a party to a settlement agreement and admitted to making false statements to the court in order to obtain a prove-up based upon that settlement agreement.

The Review Board explained:

“Eva and Andrew Janas consulted with Respondent on October 21, 2010 because Andrew was experiencing business difficulties. They discussed the possibility of obtaining a divorce allegedly so that Eva could maintain possession of a condominium in Florida and Andrew could file for bankruptcy, but Eva did not understand the discussion to be approval to proceed with that action. At no time did Respondent advise Eva to seek independent counsel.

The Administrator alleged that following this meeting, Respondent prepared, on behalf of Andrew, documents to proceed with the divorce, including a marital settlement agreement. Respondent initially claimed, including in his Answer to the Administrator’s Complaint, that he gave a draft marital settlement agreement to Eva at the October 21, 2010 meeting and that she signed it in his presence. When called as an adverse witness during the Administrator’s case at the disciplinary hearing, Respondent again asserted that Eva signed the marital settlement agreement at this meeting. However, after the Administrator prepared to call a forensic expert to testify that an examination of Respondent’s computer revealed that he had not prepared the marital settlement agreement as of October 21, 2010, Respondent finally conceded that he had not drafted the martial settlement agreement as of October 21, 2010.
After the meeting on October 21, 2010, Eva went to Florida. She did not meet with or speak to Respondent again. On November 1, 2010, unbeknownst to Eva, Respondent filed a petition for dissolution of marriage on behalf of Andrew Janas. Respondent filed a pro se appearance for Eva. Respondent then drafted a marital settlement agreement. He testified he gave the marital settlement agreement to Andrew and asked Andrew to have Eva sign it. Sometime thereafter, he testified that Andrew returned a signed agreement to Respondent. Respondent notarized the marital settlement agreement without witnessing Eva’s signature to the agreement, in violation of the provisions of the Illinois Notary Act, and without talking to her to confirm that she had signed it. He proceeded to file the notarized marital settlement agreement with the court in the dissolution matter and obtained a judgment of dissolution. He did not give notice to Eva of the prove-up date and he did not advise her of the entry of the judgment of dissolution.

The Hearing Board found that Respondent engaged in criminal conduct by violating provisions of the Illinois Notary Act in violation of Rule 8.4(b). The Hearing Board also found Respondent engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(c) by intentionally violating the Notary Act and by deliberately failing to notify Eva of the filing of the dissolution matter, the prove-up date, or the entry of the judgment of dissolution.
On January 10, 2011, Respondent appeared before Judge Kathleen Kennedy for the prove-up in the Janas dissolution matter. Judge Kennedy asked Respondent if Eva had been notified of the hearing. Respondent responded, “Absolutely”. He then falsely said that he had talked to Eva the previous week and falsely stated that Eva had signed the marital settlement agreement in his office earlier in the month.
As set out in greater detail in the Hearing Board’s Report, Respondent called Andrew as a witness during the prove-up hearing and elicited testimony Respondent knew was false about Eva’s purported execution of the marital settlement agreement in Respondent’s office and about the receipt of rent for the condominium in Florida. The court entered a judgment for dissolution based on Andrew’s testimony.
Eva did not learn of the dissolution matter until May or June of 2011. She hired a lawyer, who ultimately vacated the judgment of dissolution.”
The Hearing Board found violations of Rules 8.4(b) and 8.4(c). There were also additional rule violations for the false statements to the court, including Rule 1.2(d) (criminal or fraudulent conduct), Rule 3.3(a) (knowingly eliciting false testimony from a witness), Rule 8.4(c) (dishonest conduct) and Rule 8.49(d) (undermined the judicial process).
Comment: Given the conduct the sanction of six months is remarkably lenient. Also, lawyers need to be aware that the ARDC knows that lawyers sometimes forge documents (to make it appear that something was disclosed to a client when it was not disclosed) and that the ARDC retains forensic witnesses who know how to examine computer hard drives.
Edward X. Clinton, Jr.

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Tenessee suspends lawyer who was sanctioned in a civil case

Mabry v. Board of Professional Responsibility, Tenn: Supreme Court 2014 – Google Scholar:

Sanctions can lead to disciplinary cases. In this matter the lawyer was sanctioned for failing to withdraw a frivolous claim. That, in turn, led to a 45 day suspension from the practice of law. The key mistake was failing to withdraw a civil conspiracy claim.
“In 2008, Mr. Mabry filed suit on Ms. Shore’s behalf against Maple Lane Farms, LLC in the Chancery Court for Blount County. The lawsuit arose out of a disagreement between Ms. Shore and Maple Lane Farms regarding the use of Maple Lane Farms’ property for concerts and other outdoor events. The Chancery Court action sought a declaratory judgment, injunctive relief, and abatement of a nuisance.
[4] On August 19, 2008, Mr. Mabry filed a second action on Ms. Shore’s behalf in the Circuit Court for Blount County seeking damages against Roger Fields, a Building Commissioner for Blount County, and Robert Goddard, the attorney for Blount County. The complaint alleged the existence of a civil conspiracy, involving Mr. Fields, Mr. Goddard, and Blount County Mayor Jerry Cunningham, to require Ms. Shore, rather than Maple Lane Farms, to appeal a decision by Mr. Fields to the Blount County Board of Zoning Appeals. Mr. Cunningham was not named as a defendant. Within a month after filing this lawsuit, Mr. Mabry, on behalf of Ms. Shore, voluntarily dismissed Mr. Goddard, leaving Mr. Fields as the sole defendant.
On September 19, 2008, Mr. Fields moved to dismiss the complaint for failure to state a claim upon which relief could be sought. He sent Mr. Mabry a proposed motion for sanctions and a safe harbor letter pursuant to Tenn. R. Civ. P. 11. Mr. Mabry took no action. On October 24, 2008, Mr. Fields filed an amended motion seeking dismissal of the suit and Rule 11 sanctions against Mr. Mabry and Ms. Shore. Mr. Mabry did not respond to this motion to dismiss. Meanwhile, Ms. Shore fired Mr. Mabry as her attorney. On December 31, 2008, Mr. Mabry filed a motion to withdraw as Ms. Shore’s counsel.
On January 25, 2011, the Blount County Circuit Court heard Mr. Fields’ motion to dismiss and to impose sanctions. In a memorandum of law filed with the trial court, Mr. Mabry stated that the civil conspiracy claim against Mr. Fields became moot once Mr. Goddard was dismissed from the case. In an order issued March 4, 2011, the Blount County Circuit Court found that Mr. Mabry had more than ample opportunity—from the time he dismissed the case against Mr. Goddard, his receipt of the safe harbor letter from Mr. Fields, and being terminated by his client—to dismiss and/or correct by amendment the civil conspiracy claim. The Blount County Circuit Court imposed Rule 11 sanctions against Mr. Mabry for attorney’s fees in the amount of $5,000.”
The Tennessee Supreme Court held that the attorney demonstrated a lack of diligence, Rule 1.3.
“Upon review of these facts, we find that the Panel did not act arbitrarily or capriciously in determining that Mr. Mabry violated RPC 1.3 and RPC 8.4(a). On the contrary, Mr. Mabry’s failure to take any action in response to Mr. Fields’ safe harbor letter, motion to dismiss, and motion for sanctions was neglectful, unprofessional, and exposed his client to the very real possibility of monetary sanctions. We find there was substantial and material evidence supporting the Panel’s findings that Mr. Mabry violated the duty of diligence required of attorneys by RPC 1.3, and in doing so, that he violated RPC 8.4(a).”
Edward X. Clinton, Jr.

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Lawyer Fails to Register Then Allegedly Lies to ARDC About It

BEFORE THE HEARING BOARD:

This is a link to a complaint filed by the ARDC against David Kyle Cooper, 2014 PR 00166.

Cooper allegedly failed to register to practice for several years. When questioned by the ARDC, his answers were allegedly false.

The material allegations are as follows:

“24. As of March 27, 2013, Respondent had not registered or paid the fee required by Rule 756, and had been removed from the roll of attorneys. On March 27, 2013, Respondent appeared at the Chicago office of the Attorney Registration and Disciplinary Commission pursuant to subpoena for his sworn statement regarding the Administrator’s investigation into Sabourin’s allegations.. During that statement, counsel for the Administrator questioned Respondent about his registration history, including Respondent’s failure to pay his registration fees for 2013.

25. At that time, while testifying under oath, Respondent was asked the following questions about periods of time he had been removed the master roll, and Respondent gave the following answers:

Question: Did you practice at all during the time periods where you have been removed from the master roll?

Answer: No. I don’t believe so, no. It’s possible given that I’m not sure when I would have been knocked off, but I don’t believe I did.

26. Respondent’s statements referenced in paragraph 25, above, were false. Respondent knew that they were false because Respondent knew he had failed to timely pay his registration eight times over the ten-year period, that he received notices that he had been removed from the master roll each time he did not pay between 2003 and 2012, and that he had to pay the past-due registration fees and penalties eight times in order to be restored to the master roll and authorized to practice law again. Respondent further knew that he was representing his clients Coriglione and Caleel during periods of time when he had not paid his registration fees and penalties and had been removed from the master roll of attorneys.

27. During his March 27, 2013 sworn statement at the Commission, while testifying under oath, Respondent was also asked the following questions about his personal divorce matter and he gave the following answers:

Question: Did the Court as a result hold you in contempt?
Answer: No.
****
Question: So no order of contempt was ever entered?
Answer: No.
****
Question: Are you aware of any orders being entered that you should be remanded?
Answer: No, there hasn’t been. I know there hasn’t been.
****
Question: So, to your knowledge, there has never been any civil or criminal contempt matter relative to this matter (the divorce) entered against you?
Answer: No.

28. Respondent’s statements referenced in paragraph 27, above, were false and Respondent knew they were false. Respondent knew that in case number 08 D 6180, Judge David Haracz had entered orders on November 9, 2010, August 8, 2011 and June 5, 2012, finding Respondent in indirect civil contempt of court for Respondent’s failure to have complied with orders requiring him to pay child support. Respondent further knew that on June 5, 2012, Judge Haracz ordered that Respondent be remanded to Cook County Jail until he purged the contempt by paying a $10,000 cash bond and that the commitment had been stayed until July 3, 2012 if Respondent paid $2,500 before that time to purge the contempt.

29. By reason of the conduct described above, Respondent has engaged in the following misconduct:
in connection with a disciplinary matter, knowingly making false statements of material fact, by stating in a disciplinary matter that he had not practiced while removed from the master roll and that he had not been held in contempt in his own divorce case, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010); and conduct involving dishonesty, fraud, deceit, misrepresentation, by stating in a disciplinary matter that he had not practiced while removed from the master roll and that he had not been held in contempt in his own divorce case, in violation of Rule 8.4 (a) (4) of the Illinois Rules of Professional Conduct (2010).”

Comment: Again, the ARDC often has more information in its file than the lawyer is aware that it has. The lawyer is then questioned by the ARDC based on the information in the file. If the lawyer lies about something, the ARDC adds more charges to the complaint. This is one reason that you should always retain counsel when called to the ARDC for a deposition.

Disclaimer: this blog post is based on allegations in a complaint that have not been proved. There has been no fact hearing to determine whether or not the allegations are true or false.

Edward X. Clinton, Jr.




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Negligence Becomes More Serious When Attorney Allegedly Covers Up His Own Negligence

BEFORE THE HEARING BOARD:

On December 12, 2014, the ARDC filed a complaint against Robert Alan Habib, 2014 PR 00156. The complaint arises out of the attorney’s representation of a client before the City of Chicago Commission on Human Relations (CCHR) during the period from 2007 to 2009. The client was named Dan McAuley.

The material allegations are as follows:

12. On March 19, 2009, the Commission issued an Order appointing a hearing officer and commencing the hearing process, setting May 7, 2009 as the date for a required prehearing conference.

13. At no time between March 19, 2009 and May 7, 2009, did Respondent forward the Order setting the prehearing conference to McCauley or otherwise inform McCauley of the prehearing conference.

14. Pursuant to a CCHR regulation, attendance at the prehearing conference is mandatory and failure to attend can result in sanctions, including entry of a default judgment on liability. (CCHR Regs. 235.310(d), 240.120).

15. On May 7, 2009, neither Respondent nor McCauley appeared at the prehearing conference and an Order of Default was entered on May 15, 2009, as to liability, with the allegations of the complaint deemed to have been admitted and any defenses considered waived. The default order stated that a motion to vacate or modify the order could be filed and the order of default could be vacated, if the motion “establish[ed] good cause for the noncompliance which formed the basis for the sanctions imposed.”

16. On May 20, 2009, Respondent filed a motion to vacate the order of default on behalf of A Taste of Heaven and not McCauley. The basis of Respondent’s motion was his failure to docket the prehearing date, resulting in his failure to attend the prehearing.

17. On July 6, 2009, the Administrative Hearing Officer entered an order denying Respondent’s motion to vacate the order of default, stating that Respondent’s failure to docket the prehearing conference “does not constitute good cause.” The July 6, 2009 order also stated that since Respondent had not filed any motion to vacate on behalf of McCauley, the order of default also remained as to him.

18. At no time after May 7, 2009, did Respondent advise McCauley that an order of default had been entered because of his failure to appear at the prehearing conference, nor did he ever advise McCauley that his motion to vacate the order of default was unsuccessful and they would not be able to present any evidence at hearing, other than regarding damages.

19. On December 3, 2009, the Hearing Officer issued an order setting the Administrative Hearing for March 3, 2010. Respondent appeared “under protest” and argued that the Hearing Officer’s rulings on the default denied McCauley and A Taste of Heaven due process. At no time did Respondent advise McCauley of the hearing and Respondent presented no evidence or witnesses with regard to damages at the hearing.

20. On or about August 18, 2010, the Commission entered a Final Order on Liability and Relief, finding that Flores had established that her termination had been motivated by her protected classes (age and race) and assessed damages for lost wages in the amount of $6,750, $20,000 for emotional distress, and $25,000 in punitive damages, in addition to a fine of $250 against McCauley and a $250 fine against A Taste of Heaven. At no time after August 18, 2010 did Respondent provide McCauley with a copy of the decision, nor did he even advise McCauley of the decision on liability and damages. Instead, in or about August 2010, Respondent advised McCauley that “things hadn’t gone well in court”.

21. On October 8, 2010, Flores’ attorneys filed a petition for attorney fees. Respondent did not file a written response or in any way contest the fee petition. On January 19, 2011, the Commission entered a final order on attorney fees and costs, awarding attorney fees of almost $70,000 to Flores’ attorneys.

22. On February 22, 2011, Respondent filed a Complaint for Writ of Certiorari in the Circuit Court of Cook County, Chancery Division, Taste of Heaven, et al. v. CCHR, et al., 11 CH 06655. The Complaint sought administrative review of the final orders issued by the Commission, and to quash the record of proceedings.

23. On September 23, 2011, the Circuit Court entered an order, confirming the Commission’s final order, finding that McCauley’s and A Taste of Heaven’s due process rights were not violated and further finding that there was sufficient evidence presented at the hearing to support the Commission’s order. Respondent did not forward the complaint or the Circuit Court order to McCauley, but told him he was going to appeal.

24. On October 18, 2011, Respondent filed a Notice of Appeal of the Chancery Court’s decision denying the Plaintiffs’ Petition for Writ of Certiorari in the Appellate Court of Illinois, First Judicial District, Second Division. The appeal was docketed as Taste of Heaven, et al. v. CCHR et al., No. 1-11-3125.

25. On August 28, 2012 the Appellate Court entered an Order confirming the Commission’s order. (Taste of Heaven, et al. v. CCHR and Flores, 2012 IL App. 1st 11 113125- (August 28, 2012).

26. At no time did Respondent give McCauley a copy of the Appellate Court Order, nor did he advise McCauley of the Appellate Court Order, which Order described in detail the procedural history of the case, as described above.

27. On or about September 25, 2012, Respondent went to the bakery and told McCauley that they had had been treated unfairly by the Commission, the Circuit Court and again by the Appellate Court. Respondent did not explain that there were no further appeals and did not explain the basis of the order, as set forth in the written decision. Respondent’s failure to explain to McCauley that there were no further appeals and the basis for the order was false and misleading because Respondent knew that the Appellate Court Order outlined in detail his improper handling of the matter.



The ARDC charged three rule violations: Rule 1.1 (competence); Rule 1.4(a)(3) (failing to keep the client reasonably informed); and Rule 8.4 (c) (conduct involving dishonesty) for the “by conduct including his failure to advise McCauley of Respondent’s failure to attend the prehearing conference and the resulting default order, by making affirmative misstatements to McCauley, and by failing to inform McCauley of the scheduled prehearing conference and the CCHR hearing and by failing to forward copies of the orders entered by the CCHR which detailed Respondent’s responsibility for the adverse rulings.”


Comment: When you make a mistake or miss a deadline, you must tell the client promptly about the error and the means of rectifying the error. Failure to inform the client of bad news or an error is obviously unfair to the client and wrongful. Here, the failure to inform the client of the default and other rulings turned a negligence case into a disciplinary case.


Disclaimer: this report is based upon allegations in a complaint. The allegations have not been tested or found to be true by a finder of fact. The attorney may have a defense to the case that is not apparent from the face of the complaint.


Edward X. Clinton, Jr.



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The Iowa State Bar Association Says It is Wrong To Accuse A Lawyer of Unethical Conduct To Gain An Advantage

IA Ethics OP 14-02

It is quite common for one lawyer to accuse another of unethical conduct. To do so to gain an advantage, violates Rule 8.4(c) according to the Iowa State Bar Association.

The Opinion notes that a lawyer must report any violation of the Iowa Rules to the Iowa Supreme Court Attorney Disciplinary Board. Rule 32:8:3 requires that “(a) A lawyer who knows that another lawyer has committed a violation of the Iowa Rules of Professional Conduct shall inform the appropriate professional authority.” Rule 32:8:4 makes it a violation of the Rules to fail to report a violation by another attorney. (The Illinois standards are slightly different. Illinois only requires a lawyer to report misconduct involving fraud, deceit, dishonesty or a criminal act). Illinois Rule 8.3(a).

Further, it violates the rules to threaten disciplinary action against opposing counsel to gain an advantage in a civil matter. For example, a lawyer may “warn” opposing counsel that taking a certain action would be unethical to obtain an advantage in a matter. The Iowa committee described that conduct as the “antithesis of professionalism.”

The Opinion was issued by the Iowa State Bar Association Committee On Ethics and Practice Guidelines.

The Iowa opinion is consistent with Illinois law, which prohibits (Rule 8.4(g) a lawyer from “present[ing], participate in presenting, or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter.”

As a young lawyer I worked with a veteran lawyer, George Bullwinkel, who had a unique way of dealing with accusations that he had done something unethical. George had a wonderful sense of humor and fun. Whenever he was accused of unethical conduct in writing he would simply take the statement of opposing counsel and report himself to the ARDC. He would then ask the ARDC to open an investigation of himself and list opposing counsel as the complaining witness. Inevitably the other lawyer would then be required to write a letter to the ARDC explaining what precisely was unethical. The ARDC would then close the investigation. Most of the time the other lawyer would admit that there was no unethical conduct.

George Bullwinkel never worried that the ARDC would actually open an investigation of him. He had self-confidence and a great sense of humor. By self-reporting he never allowed any opponent to make a threat and hold the threat over his head or extract some advantage.

In sum, do not threaten other lawyers with disciplinary actions to gain an advantage in a civil matter. If you are threatened with a claim that you are unethical, it may be a good idea to self-report.

Edward X. Clinton, Jr.