Recent Professional Responsibility & Lawyer Regulation Cases of Interest

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1 Appellate Lawyers Association April 28, 2011 Wendy J. Muchman, ARDC I. What is an Authoritative Source? A recent legal writing warning was issued by a district court Judge from Louisville, Kentucky. The defendant, who was convicted of extortion for trying to extort money from University of Louisville basketball coach, Rick Pinto, moved for a new trial, claiming in her post trial motions, in part, ineffective assistance of counsel. Her lawyer apparently cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia website. In a footnote, the court reminded counsel that cutting and pasting without attributing sources is plagiarism. Further, the court reminded counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts. United States of America v. Karen Cunagin Sypher, 2011 WL II. Recent Professional Responsibility & Lawyer Regulation Cases of Interest A. Illinois Decisions Michael Applebaum v. Rush University Medical Center, et al., 877 N.E.2d 80 (Ill.App.1 st Dt. September 28, 2007), reh g denied (Dec. 5, 2007). This is not a disciplinary case. Joseph Applebaum died following medical treatment at Rush. Michael Applebaum, as Special Administrator of Joseph s estate, filed a complaint seeking damages under the Wrongful Death Act and the Survival Act. Michael endorsed the complaint as Attorney at Law. Later, Michael filed an amended complaint adding additional counts, and changing the complaint s endorsement to read Plaintiff Pro Se. Michael was Joseph s only child and sole beneficiary of his estate. The estate had no creditors and was not opened to probate. The complaint and damages sought were in the name of the estate, not individually for plaintiff. Though Michael was admitted to the Illinois bar in 1988, he voluntarily assumed inactive status in early 2005 with the Attorney Registration and Disciplinary Commission. Defendants moved to dismiss the complaint as a nullity, asserting that, because plaintiff had assumed inactive status, he was not licensed to practice law. During mid-2006, Michael became an active member of the bar again, but by that time, the statute of limitations for filing wrongful death and survival actions had tolled. In response to the motion to dismiss, Michael maintained that his case should fall under an exception to the nullity rule because he had proper legal training, had been licensed, but just had not paid the ARDC dues to remain active. The trial court, cognizant of the harshness of the nullity rule, concluded that, because plaintiff had earned a law degree, was accepted to the bar, 1

2 and had never been disciplined, established the exception to the nullity rule. Defendants moved to certify the issue for interlocutory appeal. The appellate court reversed, finding that the case did not present a unique circumstance to apply an exception to the nullity rule. The Court ruled: Plaintiff argues that he was properly educated, trained and licensed, and his prior and current licensure eliminate the concerns which underlie the purpose of the nullity rule. First, a licensed attorney is responsible for knowing and following the rules and laws of this state. Plaintiff clearly failed to do so by filing a complaint as an attorney while he was inactive and unauthorized to do so. Second, the rules, regulations and disciplinary system set up by the supreme court presupposes that attorneys are licensed. While plaintiff was able to reactivate, that does not support the proposition that the nullity rule should not be applied to an inactive attorney who undertakes the unauthorized practice of law. Inherent in maintaining a license is continued oversight by the ARDC and compliance with the rules for licensed attorneys. On March 26, 2008, the Supreme Court of Illinois granted a petition for leave to appeal in the case. The case was argued before the Court on September 11, 2008, and the matter is now under advisement. Dowling v. Chicago Options Associates, Inc., et al. (DLA Piper Rudnick Gray Cary (US), LLP., 226 Ill.2d 277, 875 N.E.2d 1012 (Ill. May 3, 2007). This is one of the most important professional responsibility opinions issued by the Illinois Supreme Court in over a decade. In Dowling, the Court recognized the viability of advance payment retainers. Previously, only two types of retainers were explicitly recognized by the Court: classic and security interest retainers. Also referred to as a true or general retainer, a classic retainer is paid by a client to the lawyer in order to secure the lawyer s availability during a specified period of time or for a specified matter. This type of retainer is earned when paid and immediately becomes property of the lawyer, regardless of whether the lawyer ever actually performs any services for the client. Consistent with the law in a majority of jurisdictions, under a security retainer arrangement, funds paid to the lawyer are not considered present payment for future services. Rather, the retainer remains the property of the client until the lawyer applies it to charges for services that are actually rendered. Any unearned funds are refunded to the client. The purpose of a security retainer is to secure payment of fees for future services that the lawyer is expected to perform. Pursuant to Rule 1.15(a) of the Illinois Rules of Professional Conduct, a security retainer must be deposited in a trust account and kept separate from the lawyer s own property. The issue as to the viability of an advance payment retainer developed when Dowling commenced proceedings to collect on two judgments he obtained against the Chicago Options Associates and Michael E. Davis. Specifically, the Court had to decide whether Piper, Rudnick, now called, DLA Piper, should be forced to turn over $137,577 to a creditor trying to collect on a judgment against Davis, one of the firm's clients. Brian Dowling had obtained an $817,830 judgment against Michael E. Davis. In 2003, after Davis retained the firm, Dowling's attorneys issued citations to discover Davis' assets. One such citation was issued to the ''Piper Rudnick LLP Trust.'' A firm partner appeared before a Cook County Circuit Judge and told him that the firm was not holding any of Davis' money in its trust account. Instead, the firm, viewing that it had an advance payment retainer agreement, had placed the funds received from the client in its general account. Later, a trial judge decided against the firm and a divided panel of the 1st District Appellate 2

3 Court affirmed, finding that $137,577 of Davis' payments to Piper, Rudnick were subject to a turnover order. The Supreme Court reversed, holding that lawyers can get an advance payment retainer from a client. This type of retainer consists of a present payment to the lawyer in exchange for the commitment to provide legal services in the future. Ownership of this retainer passes to the lawyer immediately upon payment. In concluding that Illinois now recognizes a third type of retainer, the Court cited as persuasive authority the Client Trust Account Handbook published in 2001 by the ARDC. The handbook explicitly recognizes the distinction between security retainers and advance fee payments. [W]ith advance fee payments, the client agrees to pay in advance for some or all of the services that the lawyer is expected to perform on a particular legal problem. The prepayment is applied against the lawyer s hourly fee and the lawyer spends down the retainer as services are rendered. In Illinois, unless otherwise provided by statute or court order, the specific terms of the fee agreement with the client determine whether such prepayments remain the client s funds and must be deposited in the trust account until earned or whether they are the lawyer s funds and therefore must not be placed in the trust account. If a lawyer and a client agree in writing or orally that the lawyer will deposit the prepayment in the client trust account and bill against it as the representation proceeds, the funds remain the property of the client and must be deposited in the trust account. Withdrawals can be made only with notice to and agreement of the client. On the other hand, if the lawyer and client agree that the prepayment is immediate compensation for the lawyer s commitment to perform future services, e.g., a flat fee agreement, the funds are the property of the lawyer and may be deposited in the lawyer s operating or business account. Client Trust Account Handbook, pt. IV (A)(5). The Court ruled that any written retainer agreement, regardless of the type of retainer contemplated, should clearly define the kind of retainer being paid. If the parties agree that the client will pay a security retainer, that term should be used in the agreement; it should also state that the funds remain the property of the client until used to pay for services rendered and that the funds will be deposited in a client trust account. If the parties determine that an advance payment retainer best meets the client s needs, the written agreement must use that term and clearly state that the funds become the property of the lawyer when paid and that they will not be held in a client trust account. Importantly, advance payment retainer agreements must be in writing and they must clearly disclose to the client the nature of the retainer, where it will be deposited, and how the lawyer or law firm will handle withdrawals from the retainer in payment for services rendered. (emphasis supplied) Further, the Court ruled that: [A] written agreement providing for an advance payment retainer must contain language advising the client of the option to place his or her money into a security retainer. The agreement must clearly advise the client that the choice of the type of retainer to be used is the client s alone; provided, however, that if the attorney is unwilling to represent the client without receiving an advance payment retainer, the agreement must so state, including the attorney s reasons therefor. In addition, an advance payment retainer agreement must set forth the special purpose behind the retainer and explain why an advance payment retainer is advantageous to the 3

4 client. Finally, in the event that the parties intent cannot be gleaned from the language of their agreement, we conclude that the agreement must be construed as providing for a security retainer...construing an unclear retainer agreement to establish a security retainer will provide the greatest protection for a client s funds, since they will not be subject to the lawyer s creditors and withdrawals from the funds may be made only with notice to and agreement of the client. Reimbursement to the client of any unearned fees may also be facilitated by construing an unclear agreement as a security retainer, since the funds must be held separate from the lawyer s own funds. B. Cases from other Jurisdictions 1. Constitutional Viability of Civility Rules The Michigan Supreme Court concluded in a 4-to-3 decision that remarks made by lawyer Geoffrey Fieger on a talk-radio program violated Michigan s courtesy and civility provisions, Rules of Professional Conduct 3.5(c) (prohibiting undignified or discourteous conduct towards a tribunal) and 6.5(a) (requiring a lawyer to treat with courtesy and respect all persons involved in the legal process). The state high court ruled that Fieger s statements, broadcast in 1999, warranted a reprimand. Grievance Administrator v. Geoffrey N. Fieger, 476 Mich. 231, 719 N.W.2d 123 (Mich. July 31, 2006). Discipline was imposed notwithstanding Fieger s arguments that the courtesy provisions were unconstitutional. Fieger eventually filed a petition for writ of certiorari to the United States Supreme Court, but his request for review was denied. Fieger v. Michigan Grievance Administrator, 127 S.Ct. 1257, 167 L.Ed.2d 75 (February 20, 2007). The reprimand had its genesis in Fieger s filing of a medical malpractice action that resulted in a $15 million verdict in favor of a client. On appeal, a three-judge panel of the Michigan Court of Appeals unanimously reversed the verdict because the plaintiff had failed to provide legally sufficient evidence that would justify submitting the case to a jury. Additionally, the appellate court noted that Fieger s actions during the course of the trial would have warranted a new trial in the matter. Three days after the opinion issued, Fieger made certain comments on his then daily radio program regarding the appellate justices who decided the case: Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my ass, too. Referring to his client, he added, He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the Finger he should keep is the one where he should shove it up their assess. Two days later, on the same radio program, he made the following comments about the appellate panel when another person involved in the broadcast used the word innuendo: [T]hree jackass Court of Appeals judges. I know the only thing that s in their endo should be a large, you know, plunger about the size of, you know, my fist. They say under their name, Court of Appeals judge, so anybody that votes for them, they ve changed their name from, you know, Adolf Hitler, Goebbels, and I think-what was Hitler s-eva Braun, I think it was, is now Judge Markey, she s on the Court of Appeals. 4

5 During the course of the lawyer disciplinary proceedings, Richard L. Steinberg, a Detroit personal injury lawyer, joined forces with Fieger. Both men filed a declaratory judgment action in the United States District Court raising constitutional challenges to Rules 3.5(c) and 6.5(a) and naming the Michigan Supreme Court and its seven justices as defendants. They did not directly attack the Fieger disciplinary proceeding, instead they argued that the courtesy provisions were unconstitutional on their face and violated both the First Amendment right to free speech and the Due Process Clause of the Fourteenth Amendment because they were overly broad and vague. A District Court Judge agreed with the plaintiffs and ruled that the courtesy and civility rules that did not allow any exception for truthful speech, political speech, or for speech that did not create a substantial likelihood of material prejudicing a pending case, and were overbroad and could not withstand constitutional scrutiny. Fieger v. Michigan Supreme Court, 2007 WL (E.D.Mich. September 4, 2007). The district court ruled that, although states have a legitimate interest in restricting attorney speech both to protect the fair administration of justice and to preserve the judiciary's integrity as well as the public's perception of it, such interests do not extinguish a lawyer s free speech and due process rights. The judge opined that the law does not give judges as persons, or courts as institutions, greater immunity from criticism than other persons or institutions. The operations of the courts and the judicial conduct of judges are matters of utmost public concern. The Court paid special heed to the fact that Fieger's comments were made outside the courtroom. Where an attorney's regulated speech is removed from the courtroom, courts engage in a balancing process, weighing the State's interest in the regulation of a specialized profession against a lawyer's First Amendment interest in the kind of speech that was at issue. Michigan appealed and the United States Court of Appeals for the Sixth Circuit reversed with instructions to dismiss the case for lack of jurisdiction. Fieger v. Michigan Supreme Court, 553 F.3d 955 (6 th Cir. January 20, 2009). The Court of Appeals vacated the judgment of the district court and remand with instructions to dismiss the complaint for lack of jurisdiction. The Court ruled that Fieger and Steinberg lacked standing because they failed to demonstrate actual present harm or a significant possibility of future harm based on a single, stipulated reprimand. Further, they failed to articulate, with any degree of specificity, their intended speech and conduct. Finally, they did not sufficiently established a threat of future sanction under the narrow construction of the challenged provisions applied by the Michigan Supreme Court. Importantly, the Court of Appeals ruled that the Michigan Supreme Court had determined that Fieger violated the rules not because he criticized judges, but because he made vulgar, personally abusive comments about participants in a pending case. According to the Court of Appeals: The defendant justices prudently clarified that MRPC 3.5(c) and MRPC 6.5(a) do not preclude lawyers generally from expressing disagreement or criticism, even strong criticism, of judges Indeed, the court specifically noted that lawyers have an unquestioned right to criticize the acts of courts and Fieger s case, however, the court determined that his remarks about participants in a pending legal proceeding were so unambiguously vulgar and crude as to be undeserving of constitutional protection Fieger s outrageous remarks were made during the time allowed to file a motion for reconsideration before the very panel to which the comments were directed, and such a motion was indeed filed in the immediate aftermath of the remarks. In light of the narrowing construction placed on the rules by the Michigan Supreme Court in Fieger, the court s 5

6 acknowledgment that lawyers have a right to criticize judges generally, and Fieger s extreme remarks about participants in a pending case, for which he stipulated that reprimand was warranted, it is incumbent upon plaintiffs to articulate something more than a generalized, subjective chilling of speech Specifically, plaintiffs do not suggest that they or any other Michigan attorneys at present or at any time in the immediate future intend to make vulgar, crude, or personally abusive remarks about participants in pending cases for which discipline might be threatened under the challenged rules. 2. Lawyer Advertising James L. Alexander, Alexander and Catalano LLC, and Public Citizen, Inc. v. Thomas J. Cahill, et al., 2007 WL (D.N.Y. July 20, 2007). This is not a disciplinary case. Alexander is a New York lawyer whose firm has offices in Syracuse and Rochester. The firm markets itself in print and through electronic media. Firm commercials often contain jingles and special effects. A number of the firm s marketing spots also contain fictional or comic scenes. Public Citizen, Inc. is a national non-profit corporation. One of its divisions employs New York lawyers and litigates public interest cases, including First Amendment matters. New York amended its advertising guidelines effective on February 1, The amendments prohibited: client endorsements or testimonials with respect to pending matters; the portrayal of a judge, a fictitious law firm or a fictitious name; information that rel(ies) on techniques to obtain attention that demonstrate(s) a clear and intentional lack of relevance to the selection of counsel including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence; any nickname, moniker, motto or trade names that implies an ability to obtain results in a matter; and pop-up or pop-under advertising in connection with computer-accessed communication other than on the lawyer s own website. In addition, regulations were adopted regarding a lawyer or law firm s use of a domain name for any internet web site and solicitation guidelines were altered to provide a cooling-off period for lawyers interested in seeking legal business for personal injury or wrongful death claims. The day the laws became effective, Alexander, his firm, and Public Citizen, Inc., filed suit for declaratory relief in federal court and requested an injunction prohibiting each New York bar counsel from enforcing the amended rules. The firm alleged that it had been harmed because it had to cease using the phrase the heavy hitters in its marketing and, most alarmingly, had to stop running advertisements portraying its attorneys as giants towering over downtown buildings, depicting its attorneys counseling space aliens concerning insurance disputes, and representing its lawyers as fast running blurs to reach a client in distress. District Court Judge Frederick J. Scullin, Jr. agreed with the plaintiffs that many of the amendments failed to withstand scrutiny based upon the Central Hudson Gas and Electric Corp. v. Public Service Comm n of New York, 447 US. 557 (1980), primarily due to the lack of any empirical data demonstrating a harm to consumers. Notwithstanding the fact that the federal judge was dealing with a barren record in the case (apparently the defendants did not submit any statistical or anecdotal evidence of consumer problems with or complaints about, misleading advertising), he 6

7 was willing to hold that the court could prohibit the portrayal of judges in attorney advertisements. In addition, a lawyer s use of a trade name that implied an ability to obtain results also did not violate the second-prong of Central Hudson. However, the remaining content-based prohibitions were not shown to advance materially the state s interests and were thus unconstitutional. As to amended restrictions dealing with attorney and law firm domain names and websites, the court ruled that the Central Hudson test was met, largely due to the existence in the record of a New York Task Force Report on electronic marketing that articulated a reasoned basis for the changes. As to the thirty-day cooling-off provisions, the judge found that the amended rules were constitutional by acknowledging that federal law adopts a forty-five day moratorium following airline disasters. Further, the judge recognized the obvious ease of lawyers effectively marketing themselves notwithstanding the moratorium and noted, Even casual observers of television, radio, and print advertisements since February 1, 2007, indicates that New York law firms have had little difficulty advertising their services and explaining their expertise to consumers without running afoul of the moratorium. At the time of this writing, an appeal was pending. 3. Issues While working for Jurist Temps Legal Staffing Solution, lawyer Steven Belcher was retained to work as a temporary attorney on a project basis for the St. Louis law firm of Paule, Camazine, & Blumenthal, a position that provided Belcher with access to the firm s computer system and client files. He was assigned by the firm to represent a local governmental entity that had been sued in a wrongful death case. A man had died while in the custody of a sheriff s office. Utilizing the firm s computer system, Belcher sent by , to two of his friends or acquaintances, a photograph showing the overweight decedent lying naked on an emergency room operating table that he obtained from the client s file. Belcher added text to his transmission wherein he made lewd and disparaging comments about the decedent that was potentially damaging to the firm and the client. This dissemination of a non-public photograph taken from a client file, along with his comments, violated a number of different ethics provisions. He violated Rule 1.6(a), prohibiting a lawyer from revealing information relating to the representation of a client unless the client gives informed consent; Rule 4.4(a), prohibiting a lawyer, in representing a client, from using means that have no substantial purpose other than to embarrass, delay, or burden a third person; and Rule 8.4(d), providing that it is professional misconduct to engage in conduct that is prejudicial to the administration of justice. Belcher was licensed in Illinois in 2002 and in Missouri in For disseminating the photograph, he was suspended for six months in Missouri, with the suspension stayed by a six-month term of probation with conditions. In re Steven R. Belcher, SC (Mo. October 23, 2007). The Missouri disciplinary probation was terminated in May, 2008, the same month that Illinois entered a reciprocal disciplinary order against him based on the same misconduct that led to the Missouri sanction. In re Steven Ross Belcher, M.R , 08 RC 1502 (Ill. May 19, 2008). Illinois also suspended him for six months, with the suspension stayed by a six-month term of probation with conditions. However, on June 6, 2008, the Illinois order of probation was terminated because Belcher had successfully completed his Missouri probation. The Belcher situation highlights a growing trend in lawyer disciplinary law. The misuse of electronic communication, especially , is serving more and more as a basis for professional sanction. A review of matters issued so far in 2008 suggests that such disciplinary 7

8 cases will probably increase in number in the immediate future, most certainly due to the ubiquitous nature of this mode of communication. Several months before Illinois sanctioned Belcher for his improprieties, Indiana ordered a Madison County lawyer named Richard Bash suspended for 180 days without automatic reinstatement. When a client met with Bash to discuss divorcing her husband, he made two attempts to kiss her, which she rebuffed. After this meeting, he filed a divorce action on behalf of the client. When the client subsequently notified him that she did not wish to go through with the divorce, he attempted to talk her into proceeding with it. He eventually filed a motion to dismiss the divorce action, but later that same day, he sent the client several unsolicited sexually explicit s. The s were quite graphic and base. During the course of disciplinary proceedings, Bash denied attempting to kiss the client, but admitted sending sexually explicit s. He obviously had no choice, as the client printed out copies of the e- mails and gave them to lawyer regulators. Bash contended that he sent the s only after she implored him to do so because she was lonely and it would make her feel like a real woman. A hearing officer found the women s testimonial denial of any such request clear and convincing. Moreover, the hearing officer found that the sending of such s to a client would have been grossly inappropriate conduct for any attorney, even were it true that the client made such a request." The Indiana high court concluded that Bash s actions regarding this client were markedly disturbing and violative of his fiduciary duty to her. Further, Bash demonstrated a willingness to lie under oath about his misconduct and to compound the distress he caused his client by attempting to shift the blame to her. Finally, the Court observed that the hearing officer found that Bash believed that he was not constrained by the Rules of Professional Conduct when he sent the s to the woman in question because he had filed a motion to dismiss her divorce action before sending them. At this point, however, he was still the client's attorney of record in the divorce action. Clearly the attorney-client relationship remained intact at the time that he sent the s to the client. Bash also failed to provide competent legal services in a post-conviction relief proceeding. In re Richard Meek Bash, No. 48S DI-89 (Ind. Feb. 6, 2008). It should be noted that Bash has a disciplinary history. Two months after the Bash decision, the Maryland Supreme Court reprimanded a lawyer who ed wholly improper legal advice. John Elmendorf became acquainted with an unhappily married woman named Laura through an internet dating site. Their communications were social in nature; however, the woman knew that Elmendorf was a lawyer. She asked Elmendorf if there was any way to get around the requirement that marital parties be separated for at least one year in order to obtain a no-fault divorce. He responded: You can file whatever you want so long as the parties say that it has been a year, the court won t question it so long as the parties agree to that. The woman did not act on this statement, or hire Elmendorf to represent her. However, his statement could be construed to suggest that the parties could agree to present false testimony to the Court. The Court, in imposing a sanction, rejected a recommendation of a two-year suspension, finding that such a sanction based on these facts would be punitive rather than serving to protect the public. Grievance Commission v. John A. Elmendorf, Misc. Docket AG No. 57 (Maryland, April 17, 2008). It took some time after the popularization of communication to see public lawyer disciplinary cases discuss the misuse and abuse of such communication. One of the first lawyer disciplinary cases dealing with a lawyer engaging in misconduct through electronic messaging 8

9 was Cincinnati Bar Assn. v. Susan M. Sauter, 96 Ohio St. 3d 136 (Ohio, July 31, 2002). Sauter worked as a law clerk for a state appeals court judge. An eminent domain case in which the City of Cincinnati appealed a jury s valuation of condemned property was pending before the appellate court. Assistant City Solicitors Mark Vollman and Geri Geiler represented the city in the appeal. One day, Sauter sent an to a friend named Dotty Carman who worked as an assistant in the Cincinnati City Solicitor s office. In the , she provided inside tips on how best to approach the appeal. Her correspondence stated: I couldn't locate Geiler's address, so I'm sending this to you to send to her Re: oral argument next week in [the eminent domain appeal]. For standard of review on evidentiary issues, courts use abuse of discretion standard. Recently, judges on this court have been defining that standard not as arbitrary, unconscionable etc. but as not based on a sound reasoning process' See P&G v. Stoneham, C , September 29, 2000, unreported [140 Ohio App.3d 260, 747 N.E.2d 268] (with Hildebrandt & Painter on panel), Ayer v. Ayer, C , June 30, 2000, unreported [2000 WL ] (written by Judge Painter), and Hamilton County Sheriff v. SERB, 134 Ohio App.3d 654, 731 NE2d 1196 (1999) (Painter & Gorman). Painter especially thinks this is a better standard for abuse-of-discretion review. This type of review is probably better for the city, so you might want to hammer on the lack of sound reasoning by the lower court. The concluded This message will self destruct in two hours. A copy of the e- mail was not sent to the opposing party. Geiler was out of town, so Carman gave the message to Vollman. Vollman, recognizing the problem, reported the matter to his superiors. Deputy City Solicitor Robert H. Johnstone reported the matter to the court administrator of the court of appeals, and then informed opposing counsel. Sauter s judge recused himself from the case before oral argument took place. Sauter resigned. For this ex parte communication, Sauter was publicly reprimanded. Two years later, Illinois followed Ohio s lead and sanctioned a lawyer for misconduct involving . This time around, the wrongdoing involved a lawyer intercepting another lawyer s correspondence. For many years, a lawyer named O Connor practiced in a firm with a colleague named Schiff. In 1999, the firm broke up. During and immediately following dissolution, O Connor and Schiff occupied the same office suite and frequently disagreed about the former firm s affairs. At the time of dissolution, the firm represented Victor Oliva in a legal malpractice case. Schiff and another firm partner, Craig Church, handled the matter, and O Connor had no direct involvement in it. The defendant-lawyer was represented by attorney Daniel McMahon. Under the firm s dissolution agreement, O Connor was entitled to $21,000 if the gross amount of the Oliva settlement exceeded $1,000,000. After the dissolution, O Connor learned that the Oliva parties were in the process of settling the matter. After failing to obtain specific settlement information about the settlement from Schiff, O Connor telephoned McMahon to obtain information. O Connor learned that the gross amount of the settlement might not exceed $1,000,000. Thereafter, he continued to attempt to obtain further information about the settlement. One weekend, O Connor entered the office that was formerly occupied by Church, who no longer worked for the firm. O Connor used Church s password to obtain access to the computer located in that office, on which Church had stored information pertaining to the Oliva case. He also reviewed correspondence to and from Church regarding the matter. 9

10 O Connor discovered an message from Church to Schiff, in which Church stated that he had talked to [Oliva], he wants to clear $350,000. The message also referred to the availability of Sister Kris Schrader, a witness for Oliva in the case, to testify at a deposition. O Connor also found other messages referring to the nun s availability. Based on his review of the s, O Connor thought that Church had been shielding the nun from contact with defense counsel. After printing copies of the messages, O Connor spoke to McMahon, who told him that the nun was a material witness in the Oliva matter. Thereafter, without seeking an explanation from Church as to the references to Sister Schrader in the messages, and without reviewing any records pertinent to the Oliva case, O Connor sent a copy of the messages to McMahon by facsimile transmission. After he received the copies of the messages from O Connor, McMahon moved to extend the time within which to appeal the agreed dismissal of the Oliva case. McMahon did so because he became concerned that firm attorneys might have told the nun not to communicate with him, but not because he had become aware that Oliva would have accepted $350,000 in settlement. After communicating directly with the nun regarding her availability to testify, McMahon chose not to pursue the motion and to let the settlement stand. A lawyer disciplinary hearing panel found that O Connor, while lacking a specific intent to divulge a client confidence, risked damaging the Oliva case by disclosing information to opposing counsel at a time when the agreed dismissal of the Oliva case could still have been vacated. Moreover, the panel found that his actions were motivated by a selfish desire to cause trouble for his former partners, and that as a result he failed to consider the degree to which he jeopardized Oliva s interests. O Connor was suspended for thirty days. In re Neil Daniel O Connor, M.R , 01 CH 96 (Ill. May 17, 2004). Many of the disciplinary cases in this developing area of professional responsibility law appear to involve what is essentially personal activity that takes place in a public or attorneyclient context. A good example of misconduct in a public situation is the 2006 decision of the Wisconsin Supreme Court in Office of Lawyer Regulation v. Todd J. Beatse, 2006 WI 115 (Wisconsin, October 11, 2006). There, the Court sanctioned an attorney who engaged in aberrant and outrageous personal behavior in communication. Beatse served as an Assistant District Attorney for Monroe County. One day when he was in court attending hearings, his office received notice that the computer system had to be shut down for maintenance purposes. When his secretary went into his office, she found pornographic images that had been downloaded from the Internet and minimized on the bottom of his screen. When confronted by his boss, Beatse blamed his own son. He claimed that he had copied the images from his home computer and loaded them onto his work computer to see what sites his son had been visiting. When the district attorney ordered an investigation of the matter, a review of Beatse's stateprovided computer showed that during the preceding 55 days (on 29 of which Beatse had been at work), he had browsed pornographic Internet sites for 36 hours, and that 12 of the 20 sites visited most by Attorney Beatse were pornographic sites. Beatse was suspended from his job without pay. While on suspension, he used the state system from his home computer to send inappropriate messages to female employees, one of whom was a court reporter. In those messages he made comments about having touched the breasts of a third Monroe County employee and about the court reporter's breasts. The court reporter also stated that Beatse had made a number of similar inappropriate oral comments about her breasts on previous occasions. In addition to all of these comments, the audit of the computer system disclosed that Beatse had sent a number of s about his sexual activities and other sexual topics. Beatse initially denied having sent sexually explicit s using the state computer system, except when the 10

11 sexual content was "part of a joke." This was not true. Beatse was fired, was publicly reprimanded by the Wisconsin Supreme Court, and must pay $6, as costs for the disciplinary proceeding. As to the future, lawyer disciplinary decisions will probably deal more and more with misuse of communication in the context of litigation, specifically in regard to discovery violations. One of the most significant decisions this year dealing with electronic communication is not a disciplinary case, but might have nonetheless have profound disciplinary implications for a number of California lawyers. The decision, detailing the discovery abuses discovered during the course of intellectual property litigation, has been much discussed in various media outlets, including lawyer blogs and national news stories. See, e.g., Qualcomm Case Sends Tremors Nationwide, Solovy and Byman, National Law Journal (January 31, 2008). Qualcomm Incorporated (Nasdaq: QCOM), a leading developer and innovator of advanced wireless technologies and data solutions, was the subject of an $8.5 million sanction order for discovery abuses in federal litigation Qualcomm Inc. v. Broadcom Corp., 2008 WL (S.D.Cal. January 7, 2008). The sanction order had its genesis in a patent infringement action filed by Qualcomm in federal court in October The defendant, Broadcom, filed a counterclaim arguing that the patents were not enforceable "due to waiver" and because Qualcomm allegedly participated in a Joint Video Team ('JVT') in 2002 and early Over the course of discovery, Broadcom sought information through a variety of discovery devices concerning Qualcomm's participation in, and communications with, the JVT. As the case progressed, Qualcomm became increasingly aggressive in advocating the position that it never participated in the JVT during the relevant time period. For example, Qualcomm submitted an expert declaration confirming the absence of any corporate records indicating Qualcomm's participation in the JVT. Trial commenced on January 9, 2007, and throughout trial, Qualcomm vigorously asserted that it had not participated in the JVT in 2002 and early While preparing a Qualcomm witness named Viji Raveendran to testify at trial, however, one of Qualcomm s lawyers discovered a to welcoming her to the avc_ce mailing list. Several days later, on January 14, 2007, the Qualcomm lawyer and Raveendran searched her laptop computer using the search term avc_ce and discovered 21 separate s, none of which Qualcomm had produced in discovery. The chains bore several dates in November While Raveendran was not a named author or recipient, the s were sent to all members of two JVT groups (jvt-experts and avc_ce) and Raveendran maintained them on her computer for more than four years. The Qualcomm trial team decided not to produce these newly discovered s to Broadcom, claiming they were unresponsive to Broadcom's earlier discovery requests. The Qualcomm attorneys ignored the fact that the presence of the s on Raveendran's computer undercut their client s premier argument that it had not participated in the JVT in It further appeared as though the Qualcomm trial team failed to conduct any investigation to determine whether there were more s that also had not been produced. Four days later, during a sidebar discussion, another Qualcomm lawyer argued against the admission of the 2002 avc_ce reflector list, declaring: Actually, there are no s-there are no s...there's no evidence that any e- mail was actually sent to this list. This is just a list of ...addresses. There's no evidence of anything being sent. During Raveendran's direct testimony, a Qualcomm attorney pointedly did not ask her any questions that would reveal the fact that she had received the 21 s from the 11

12 avc_ce mailing list; instead, he asked whether she had any knowledge of having read (emphasis supplied) any s from the avc_ce mailing list. But on cross-examination, Broadcom asked the right question and Raveendran was forced to admit that she had received s from the avc_ce mailing list. Over the lunch recess that same day, Qualcomm's counsel produced the 21 s they previously had retrieved from Raveendran's archive. It later turned out that approximately 46,000 s (totaling over 300,000 pages) were in Qualcomm s possession in regards to the JVT matters, and that none of the 46,000 s were turned over to Broadcom during discovery. The Magistrate Judge concluded that: [B]y clear and convincing evidence Qualcomm, its employees, and its witnesses actively organized and/or participated in a plan to profit heavily by (1) wrongfully concealing the patents-in-suit while participating in the JVT and then (2) actively hiding this concealment from the Court, the jury, and opposing counsel during the present litigation. The Magistrate Judge found that six Qualcomm lawyers had been involved in questionable discovery activities in the patent infringement case. (These lawyers have been popularly dubbed the Qualcomm Six. See, e.g., Preventing a Qualcomm at Your Law Firm, Deutchman, Pennsylvania Law Weekly (June 10, 2008). To address the potential ethics violations, the trial judge referred the Qualcomm Six to The State Bar of California for an appropriate investigation and the possible imposition of disciplinary sanctions. Not content to simply have the clerk of court notify the State Bar of California about this misconduct, the judge specifically mandated that, within ten days of her findings: [E]ach of the Sanctioned Attorneys must forward a copy of this Order to the Intake Unit, The State Bar of California.1 On March 5, 2008, the sanctions order was vacated and the matter remanded for further hearing to allowing the Qualcomm attorneys to defend themselves. The attorneys were allowed to pursue matters relating to attorney-client privilege in order to defend their conduct. After about fifteen months of a massive discovery effort and many depositions, the court held a threeday evidentiary hearing. At the conclusion of the hearing, the Court declined to sanction any of the attorneys in question. The court stated that there was a massive discovery failure in the case, resulting form significant mistakes, oversights and miscommunications on the part of both 1The sanction decision must be read in conjunction with a later order of the federal court. Qualcomm Inc. v. Broadcom Corp., 2008 WL (S.D.Cal. March 5, 2008). In the later order, Judge Rudi Brewster vacated Magistrate Judge Barbara Major s January sanction order, but only as to the Qualcomm Six, and not as to Qualcomm itself. During the course of the earlier sanctions proceeding before the Magistrate, Qualcomm asserted the attorney-client privilege and decreed that its retained attorneys, including the Qualcomm Six, could not reveal any communications protected by the privilege, which might allow them to explain how the discovery violations had occurred. Several attorneys complained that the assertion of the privilege prevented them from providing additional information regarding their conduct. A request by the lawyers to utilize the self-defense exception to the attorneyclient privilege was rejected. The District Judge disagreed with the Magistrate s ruling, essentially allowing the lawyers to exercise their due process right to defend themselves. The sanction order against Qualcomm was not disturbed. See, e.g, District Court Lifts Sanctions Against Six Qualcomm Attorneys, Remands Attorney Sanctions Issue to Magistrate Judge to Allow Attorneys to Defend Selves Fully at (March 7, 2008) available at 12

13 outside counsel and Qualcomm employees. The Court found that there were critical errors made during pretrial investigations. However, it concluded that the record did reveal that the responding attorneys made significant efforts to comply with their discovery efforts, thereby declining to sanction them. The opinion is instructive in how to prevent similar issues. See Qualcomm v.. Broadcom Corp., 2010 WL (S.D.Cal. 2010). In re Kristine Ann Peshek, M.R , 2009 PR (Ill. May 18, 2010). Ms. Peshek, who was licensed in 1989, was suspended for sixty days. While serving as an Assistant Public Defender, she revealed protected client information in an internet blog. Further, she failed to disclose to a tribunal that one of her clients had made false statements about the client s drug usage during the course of a guilty plea. The suspension was effective on June 8, In re B. Carlton Terry, Jr , Before the Judicial Standards Commission of North Carolina, April 1, Judge reprimanded for communicating ex parte with counsel for a party in a child custody and support matter being tried before him and gathering information by viewing a party s website while the party s hearing was ongoing without notice to either party and even though the contents of the website were never offered as nor entered into evidence during the hearing. FloridaSupreme Court Judicial Ethics Advisory Opinion (Nov. 17, 2009). Cautions against allowing lawyers and judges to be friends on judge s social networking page where others can see the identification. Canon 2B states that: A judge shall not lend the prestige of judicial office to advance the private interests of others, nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. The opinion notes that while judges cannot isolate themselves entirely from the real world, some restrictions on the judge s conduct are inherent in the office. The Commentary to Rule 2A states in part: A judge must expect to be the subject of constant public scrutiny. In the Matter of Randall L. Hoffman, No (Supreme Court of North Dakota, Oct 2005). Hoffman s reinstatement denied in part as a result of the harassing and disparaging remarks Hoffman posted on the internet web page of the wife of the father of Hoffman s wife s child while Hoffman s wife and the father were involved in litigation including visitation disputes. The remarks included disparaging comments like: I don t want a psycho endangering my family. Hoffman argued that he was not communicating with the litigant because the comments were directed at his wife. The Court concluded that Hoffman intended his remarks to be conveyed to the litigant as well as his wife. In re Chowhan, 2009 PR pending complaint Lawyer posted job description for legal secretary for his law firm on the adult gigs classified ad section of Craig s list. 4. Pretexting Bar Counsel v. Kevin P. Curry, No. SJC-09904, Massachusetts Lawyers Weekly No (Mass. Feb. 6, 2008); Bar Counsel v. Gary C. Crossen No. SJC-09905, Massachusetts Lawyers Weekly No (Mass. Feb. 6, 2008). Both Curry and Crossen were disbarred. Earlier, a third lawyer, Richard K. Donahue, was suspended for three years. Bar Counsel v. 13

14 Richard K. Donahue, 22 Mass. Att y Disc. R. 193 (Mass. Dec. 7, 2006). Discipline was meted out to all three men based upon their scheme to discredit former state court Judge Maria Lopez, now a daytime television personality. The disciplined lawyers had diverse career histories. Curry was employed for many years as an Assistant Attorney General and, after leaving government service, entered private practice where he developed an expertise in conducting undercover investigations using pretext and subterfuge because that is [t]he only way you can get the truth. Crossen is a former federal and state prosecutor, former chairman of the state Judicial Nominating Commission, and former ethics counsel to Massachusetts Governors Weld and Cellucci. From 1960 through 1963, Dartmouth College graduate Donahue served as an assistant to President John F. Kennedy. He also was the former chairman of the Massachusetts Board of Bar Overseers. Donahue served on the ABA House of Delegates and Board of Governors. From 1990 through 1995, he was president of NIKE Inc. and served on the Board of Directors of that company. The disciplinary case has its genesis in rancorous litigation over the $1 billion Demoulas supermarket empire that included the Market Basket and Lee Drug chains. Judge Lopez presided over several civil trials that featured internecine warfare between the families of Telemachus Demoulas and his late brother, George, who co founded the grocery chain. Lopez had ruled in 1997 that George's heirs had been cheated out of hundreds of millions of dollars and she ordered Telemachus family to transfer substantial assets. Curry, Crossen, and Donahue all worked at various times for the Telemachus Demoulas clan and they believed that Lopez had demonstrated considerable bias against their clients. In addition, certain defense counsel voiced the opinion to their clients that the judge was too dumb to have written the adverse decision. In order to establish this judicial enmity and overturn the judgment, they created an elaborate hoax that targeted the judge s former law clerk, Paul Walsh, who had worked for the judge during the course of the Demoulas litigation. During the course of the litigation, when his clerkship was ending, Walsh sent out letters soliciting employment from the various law firms that had filed appearances in the cases, but he had received nothing but rejection letters. At the time of the events in question, he was working as a part-time lawyer for a law firm. A private detective, posing as a headhunter reached out to Walsh with the promise of a lucrative job opportunity. When the recruiter sought a writing sample from Walsh, Walsh provided him with a copy of the opinion entered in the Demoulas case. Walsh allegedly claimed that he had written the opinion. Thereafter, Walsh traveled to Halifax in Nova Scotia to meet with representatives of an alleged multinational insurance company for a job interview. Walsh was given airline tickets and $300 in cash. At the job interview, he met with Curry, who was using the fake name Kevin Concave. During the course of the session, Concave asked Walsh about the process for writing a decision, and eventually Walsh confirmed that he had written the entire Demoulas decision and revealed that the judge merely signed her name to the document. He also allegedly noted that the judge was biased and predisposed to rule a certain way in the case. Later, it was decided that the ruse should be continued and that Walsh should be surreptitiously tape recorded in the hope that he would corroborate the statements that he made in Halifax or that he otherwise be persuaded to provide an affidavit or other sworn testimony that could be used to establish the bias of the judge. Another phony interview was set up, this time in New York City. A Mercedes limousine picked up Walsh at the airport and delivered him to the Four Seasons Hotel where the phony job interview was tape recorded without Walsh s knowledge. Most of the job interview was spent discussing the Demoulas decision. Sometime thereafter, Walsh was invited to the Four Seasons Hotel in Boston in order to get his job offer of a lifetime. Walsh went out and bought a new suit and tie for the event. Once he got to the session, however, Walsh was 14

15 informed that the job situation was an elaborate charade that had been created to gather information about the improper conduct of Judge Lopez. He was informed that he, Walsh, was not the target of the investigation, but that they wanted him to tell [them] things about Judge Lopez. One of the Respondents allegedly claimed that Walsh s statements about the judge s predisposition to rule against his clients would be eventually revealed in a pleading and told the former clerk: Mr. Walsh, once its fired it s a missile that s out of my control and it s off and I don t know where it goes and what it ends up doing, what the media ends up doing with it, what the court ends up doing with it or what facts get developed out of it. Walsh eventually went to the FBI and agents persuaded him to wear a wire and secretly taperecord conversations with the lawyers. At the same time, Crossen arranged to have Walsh and Walsh s wife placed under surveillance by private investigators. The Justice Department investigated the case, but no criminal charges were ever filed. To defend themselves against the disciplinary charges, the Respondents asserted that the phony job ruse was akin to the use of testers in discrimination cases. The Court rejected this defense and, in the Curry disbarment opinion, noted: Unlike discrimination testers or investigators who pose as members of the public in order to reproduce pre-existing patters of conduct, Curry built an elaborate fraudulent scheme whose purpose was to elicit or potentially threaten the law clerk into making statements that he otherwise would not have made.this coercive and deceptive process was designed to trick the law clerk, not to note or reproduce his usual behavior. The Court also declined to analogize the conduct of the conspirators here with the pretexting by government undercover operations, noting in the Crossen disbarment opinion: Whatever leeway government attorneys are permitted in conducting investigations, they are subject not only to ethical constraints, but also to supervisory oversight and constitutional limits on what they may and may not do, constraints that do not apply to private attorneys representing private clients Constraints on government agents ensure that even undercover investigations conducted by government attorneys are reigned in by the stringent constitutional requirements of fair and impartial justice. Crossen s argument that he felt empowered as a private attorney to conduct the same kind of sting operation he could have conducted as a prosecutor both overstates the independence of prosecutorial power and understates the unique restraints and oversight on that power. In re Cynthia Leyh, M.R , 08 RC 1509 (Ill. Sept. 17, 2008). Leyh was licensed in Illinois in 1989 and in Arizona in She was censured in Arizona for creating a ruse in order to serve trial subpoenas on two different witnesses, whom she had been unable to locate but who attended a social event where she was able to encounter and detain them long enough to have them served. Illinois imposed reciprocal discipline and censured her. The facts are quite unique 15

16 to a disciplinary case. She began representing a criminal defendant charged with murder. She knew that the two very important witnesses were members of the defendant s tribe and that they resided on the Fort McDowell Indian Reservation. Investigators attempted to locate and serve the witnesses with subpoenas to appear and testify at the defendant s trial but were unsuccessful because they evaded service. As the trial date approached, Leyh learned from the defendant s family members that the two witnesses would be attending a Halloween dance at the Fort McDowell Indian Reservation. Thereafter, Leyh and her law clerk developed a ruse by which they created fictitious coupons for a fictitious beer and planned to attend the Halloween dance, have the defendant s mother point out the two witnesses, and engage the witnesses in conversation about the fictitious coupons for a sufficient length of time that the witnesses could be served with subpoenas for attendance at the defendant s trial. Leyh and her law clerk carried out this plan at the Halloween dance, and succeeded in serving both witnesses with subpoenas for the trial. In carrying out the plan, Leyh knew that the coupons were fictitious, knew that the beer they purported to represent did not exist, told one of the witnesses that she must give Leyh her contact information before she could obtain the fictitious beer, did not inform the witness that she was an attorney, did not inform the witness that she represented the defendant, and did not inform the witness that she wanted the witness to testify at the defendant s trial. Compare and contrast the Leyh case with the recent Wisconsin decision in In re Office of Lawyer Regulation v. Stephen P. Hurley, No. 07 AP 478-D (Wisconsin Supreme Court, February 11, 2009). There, a criminal defense attorney represented a Madison businessman accused of showing pornographic images to a minor and with molesting the boy. Hurley believed that the boy was capable of accessing computer pornography on his own accord and thought that criminal law authorities were not aggressively pursuing evidence that might call into question the boy s veracity and credibility. As a result, Hurley arranged to obtain the boy s computer through subterfuge. Forensic examination subsequently revealed that the boy viewed pornography on his computer. That evidence was deemed inadmissible at the criminal trial and Hurley s client was convicted. Hurley s pretexting led him to be charged with violating state ethics guidelines, but a Referee concluded that Hurley s actions were protected by the Sixth Amendment. The Wisconsin Supreme Court agreed with that decision and Hurley was exonerated. 5. Attorney Client Privilege Issues Gucci America, Inc. v. Guess?, Inc., et al., 09 Civ (S.D.N.Y. January 3, 2011). You can t say that this latest decision in this case was completely unexpected by many in the lawyer regulatory and professional responsibility communities. Southern District Judge Shira A. Scheindlin (the same jurist who presided over Zubulake v. UBS Warburg in the United States District Court for the Southern District of New York, a case involving a series of exceedingly important rulings in regard to electronic discovery in the federal courts) has reversed an earlier magistrate s decision holding that certain critical communications, particularly s, between Gucci s in-house lawyer and Gucci during the course of patent infringement litigation were not protected by attorney-client privilege because in-house counsel had no active license in the only state where he was licensed, California. Scheindlin has now ruled that Gucci was entitled to assume that its communications with in-house general counsel, Jonathan H. Moss, were privileged. She ruled that Gucci should not be penalized for Moss' failure to inform the company of his inactive license status. Judge Scheindlin acknowledged that Moss did have a law license and that Moss' belief that he was permitted to provide legal advice outside of California was not 16

17 unreasonable. However, even if the communications were not made to an attorney, the privilege can be successfully asserted if a client reasonably believes that the person to whom the communications are made is a licensed lawyer. She noted that, [e]very communication on legal matters (as opposed to business advice) between Moss and his employer were clearly intended to be protected attorney-client communications. The purpose of the privilege is to protect client communication, and to encourage full and frank disclosure when seeking legal advice, which is why the client holds the privilege and only the client can assert or waive. The judge ruled as a matter of policy that Gucci convincingly argued that rejecting the privilege would place an unfair and potentially disruptive burden on corporate entities. Further, [t]o require businesses to continually check whether their in-house counsel have maintained active membership in bar associations before confiding in them simply does not make sense. III. Illinois Disciplinary Cases Dealing with Misconduct in Litigation The following Illinois case summaries catalog lawyer misconduct in litigation settings. The listing is not intended to be exhaustive, but it does highlight many of the different lawyer regulatory issues that have been raised in a litigation context. Full information relating to each of the cited cases can be found at the ARDC website: A. Assisting the Client in Committing a Fraud In re Thomas J. Zandecki, M.R , 99 RC 1512 (Ill. Nov. 22, 1999). Zandecki, who was admitted to the Illinois bar in 1979 and licensed in Florida in 1982, was formally admonished by the Florida Supreme Court. Earlier, a Florida Bar referee concluded that he had assisted a client in criminal or fraudulent conduct but found that he had no prior history of misconduct. In assisting a client in obtaining her deceased husband s pension benefits from the German government, he prepared an application stating that the client had not remarried. Shortly thereafter, he learned that the client had in fact remarried. Instead of correcting the mistake and submitting the document to the German government, he sent the uncorrected application to his client and requested that she mail it in herself. He enclosed a cover letter with the application stating, I am asking that you mail this in on your own since I am aware that there is a misrepresentation on it in the answer to A7. Accordingly, I feel it would be in my best interests not to get further involved in this matter. The Supreme Court of Illinois reprimanded him as reciprocal discipline. B. Communicating with a Represented Party In re John T. Gonnella, M.R , 00 CH 43 (Ill. March 22, 2001). Gonnella, who was licensed to practice law in Illinois in 1994, was censured. He represented a man named Giuseppe, the father of two children, Josephine and Antonio, in a child protection proceeding. The Illinois Department of Children and Family Services took protective custody of the children and removed them from the home of Gonnella s client because of allegations that Giuseppe physically and sexually abused them. Gonnella knew that the children were represented by the Cook County Public Guardian s office in the child protection proceeding. During the spring of 1999, both children were residents of Maryville Academy, a social service residential facility. Gonnella telephoned the Academy s Program Manager and requested a meeting with Antonio, 17

18 who was then ten years old. Thereafter, Gonnella traveled to Maryville and met privately with Antonio in the boy s room without the prior consent of any attorney from the Cook County Public Guardian s office. In re John Frederic Kuenstler and In re Beau Christopher Sefton, M.R , 04 CH 14 & 04 CH 15 (Ill. Nov. 17, 2004). Kuenstler, who was licensed in 1993, and Sefton, who was licensed in 1999, were both censured. Kuenstler is a partner at the large Chicago law firm; Sefton is an associate there. While representing Pepsi Americas, the Pepsi bottling company, in an employment discrimination case, Kuenstler directed Sefton to notice a deposition of a witness named Gena. When Kuenstler later learned that Gena had filed his own discrimination case against Pepsi and was represented by an attorney in that case, Kuenstler failed to notify Gena s attorney of the scheduled deposition and took the deposition without the knowledge or consent of the witness attorney. Kuenstler asked Gena questions drafted by Sefton which inquired about the witness own claims. The deponent made numerous admissions against his own interests at the deposition. Thereafter, in opposing a motion for sanctions based upon an alleged violation of Rule 4.2, both Respondents raised arguments unsupported by case law or other authority. Specifically, although Sefton did not discover any authority to support a conclusion that Kuenstler s contact with Gena fell within the otherwise authorized by law exception to Rule 4.2, he argued that the deposition of Gena was a communication specifically authorized by law because it was conducted pursuant to a subpoena. In re Phillip S. Makin, M.R , 01 CH 91 (Ill. January 24, 2003). Makin, who was licensed in 1946 and was 86 years old at the time of discipline, was suspended for two years and until further order of the court. He sent notice of motion and notice of appeal to a party represented by counsel in an estate matter. He then engaged in further misconduct by confronting the 70-year-old opposing party at her home and making false and intimidating statements, claiming to be the attorney for an appraiser in order to gain entry into her home, and threatening her with court proceedings after she refused to let him into her home, despite being specifically admonished by the court to refrain from having any contact with her. Further, he engaged in improper communications with a judge after he made an unscheduled appearance before the judge and began discussing financial issues in a pending estate matter. The communication was not made in the course of official proceedings, nor was opposing counsel notified of the communication. He was also found to have made numerous false statements regarding his payment of $2,000 to attorney Jeffrey Schulze for paralegal expenses incurred by Schulze after Makin hired him for assistance in the trial of a civil matter. Makin falsely told Schulze that the judge had ruled that Schulze was to reimburse Makin. Makin claimed in writings to Schulze, and in filings with the court, that the $2,000 represented payment for legal services provided by Schulze, despite Makin s previous written acknowledgments that the funds represented payment for paralegal services. Additionally, Makin demanded that Schulze prepare a false affidavit for filing with the court misstating the purpose of the $2,000 payment, which Schulze refused to do. He was suspended on an interim basis on December 5, In re Angela E. Peters, M.R , 04 CH 127 (Ill. January 12, 2007). Peters, who was admitted in 1985, was reprimanded. She caused a divorce client to communicate directly with the client s spouse, who was represented by counsel. Opposing counsel had earlier denied permission to Ms. Peters to speak to the client s spouse. The improper communication occurred when she conversed with her client in a courthouse hallway within earshot of the opposing party. 18

19 She made no attempt to shield her conversation with her client from the opposing party, and it was clear that she knew that the opposing party could hear her comments to her client. In addition, she made a copy of an amended marital settlement agreement with her hand-written changes and gave it to her client, knowing that he was going to discuss it with his estranged spouse. C. Problematic Communications with a Non-Represented Person In re Theodore S. Ashbell, M.R , 03 CH 45 (Ill. Sept. 28, 2004). Ashbell, who was licensed in 1979, was suspended for thirty days. Ashbell agreed to represent a woman named Shirley in a medical malpractice claim against Thorek Hospital and a Dr. Salvador. Shirley s injuries, paralysis of her upper left extremity, allegedly resulted from surgery performed by Salvador at the hospital. In addition to being a licensed attorney, Ashbell is a licensed medical doctor who, when he was practicing, specialized in hand surgery and had been a medical colleague of Salvador s since at least At all relevant times, Salvador knew that Ashbell was a licensed attorney. Shirley sent a letter to Salvador authorizing him to forward her medical records to Ashbell, whom Shirley identified as a hand surgeon specializing in nerve injuries, for a second opinion on her medical condition. Ashbell received a copy of the letter. Soon after, Ashbell met with Salvador to discuss the Shirley matter. During the meeting, Ashbell and Salvador talked about an unrelated medical malpractice case (the Salamanca case) that was then pending against Salvador and in which an attorney represented Salvador. In discussing the Salamanca case, Ashbell asked for and obtained information from Salvador regarding the medical facts of that case, his actions, background, training, and experience. Ashbell then gave Salvador legal advice regarding a proposed settlement of the Salamanca claim. At no time prior to discussing the Salamanca malpractice case did Ashbell ever advise Salvador that he represented Shirley in a case that was directly adverse to Salvador s interests, nor did Ashbell obtain a conflict waiver from Salvador. Ashbell and Salvador discussed Shirley s condition and the two operations performed by Salvador, as well as Salvador s lack of assets and insurance coverage. Ashbell then offered to seek a settlement of Shirley s claim with Salvador s insurance company in order to avoid a medical malpractice lawsuit. At that time, Ashbell knew or should have known that Salvador was not represented by counsel with regard to the Shirley matter. Further, based upon the letter that Shirley had sent Salvador, and the nature of the conversation Ashbell had with Salvador, Ashbell knew or should have known that Salvador misunderstood Ashbell s role in the Shirley matter, but he failed to take adequate steps to correct Salvador s misunderstanding. Later, Ashbell filed suit on behalf of Shirley against Salvador, Thorek Hospital and others. During the course of the case, Salvador appeared for his discovery deposition. Ashbell conducted the deposition. During the course of the deposition, Ashbell referred to statements that Salvador had made to Ashbell during their earlier meeting. Ashbell also specifically referred to the legal advice he had given Salvador regarding settlement of the Salamanca case. At the time discipline was imposed, Ashbell was 75 years old. D. Misplaced Understanding of What Constitutes Work Product In re Robert Quentin Hoyt, M.R , 01 RC 1509 (Ill. Sept. 20, 2001). Hoyt was licensed in Illinois in 1963 and in Arizona in He advised his liability expert in a medical malpractice case to remove certain documents from the expert s file before being deposed by the opposing party. Specifically, he told the expert to purge the expert s file of memoranda from 19

20 Hoyt that discussed various causation and liability scenarios. He based this instruction on his interpretation of the work-product doctrine. By instructing the expert to remove the documents he reduced the likelihood that opposing counsel would ask questions about Hoyt s conversations regarding these topics. Interestingly, he affirmatively told the expert before the that he should answer questions at the deposition truthfully, including any about the documents or the liabilitycausation discussions. Arizona censured him and placed him on probation for a year with conditions. The Illinois Supreme Court imposed reciprocal discipline by censuring him and placing him on probation for one year subject to the conditions of his Arizona probation. E. Altering Documents before Producing to Opponent In re Timothy Michael Block, M.R , 08 RC 1506 (Ill. Sept. 17, 2008). Block was licensed in Illinois in 1993 and in Minnesota in He was suspended for sixty days in Minnesota for altering four documents that he produced to opposing counsel by deleting portions of the text and manipulating the documents so that the deletions could not be detected. Illinois imposed reciprocal discipline and suspended him for sixty days. The misconduct occurred when he was representing a defendant as lead counsel in civil litigation in the State of Washington. His client was required to produce the documents to opposing counsel. He later reported his conduct to his law firm and to the Director s Office in Minnesota. The Illinois suspension was effective on October 8, F. Failing to Reveal Existence of Adverse Expert Report in Discovery In re James William Holman, M.R , 96 CH 679 (Ill. Nov. 26, 1996). The Respondent was suspended five months for misconduct that he engaged in during his representation of a client in a lawsuit filed against her former employer and certain other defendants. In 1990, he agreed to represent a woman who was claiming that she had suffered a respiratory ailment due to environmental conditions at her former workplace, an automobile body-work and detailing shop. In 1991, the client was examined by a doctor who later issued a ten-page report concluding that there was no evidence of any illness caused by occupational exposure or that she ever suffered from reactive airways dysfunction syndrome ("RADS"). Unimpeded by this setback, the lawyer filed a suit against the former employer and alleged that environmental hazards had caused the client to suffer RADS. The Respondent failed to reveal to his opponents the existence of the adverse medical report during the course of discovery in the case. Later, during a deposition, opposing counsel confronted him with information concerning the medical examination and the Respondent stated, "for the record, I am without notice of this." Upon further questioning, he voiced surprise about the existence of any adverse medical report. G. Concealing Witness Statements In re Gary Steven Tucker, M.R , 97 CH 119 (Ill. June 30, 2000). Tucker was suspended for 24 months, effective January 29, 1998, the date of his interim suspension, after he was convicted in federal court conviction for failing to file federal income tax returns for five years and in state court for obstruction of justice. He was sentenced to serve a total of two years in prison. The obstruction of justice charge alleged that, during Tucker s representation of a man named Santiago in a criminal matter, Tucker obtained a signed statement from Santiago s co- 20


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