In the Matter of: BEFORE THE HEARING BOARD OF THE FILED ILLINOIS ATTORNEY REGISTRATION and DEC 3 0 2013 DISCIPLINARY COMMISSION ATIY REG &DISC COiVlM CHICAGO ROBERT BLESS, Attorney-Respondent, Commission No. 2013 PR 122 No. 6281646. ANSWER TO AMENDED COMPLAINT NOW COMES Respondent, ROBERT BLESS, by and through his attorneys, Thomas P. McGarry and Thomas P. Sukowicz of Hinshaw & Culbertson LLP, and for his Answer to the Administrator's Amended Complaint, state as follows: 1. At all times alleged in this complaint, Respondent was employed as a sheriffs police by the Cook County Sheriffs Office ("CCSO"). The allegations contained in paragraph 1 call for a legal conclusion about whether or not Respondent was "employed" at all times relevant to the allegations of this Complaint. In paragraph 21, the Administrator alleges, "on January 29, 2013, the Cook County Sheriffs Merit Board ordered that Respondent be terminated from employment with the Cook County Sheriffs Department retroactively to October 6, 2011." Because Respondent's status is a legal issue and whether he was or was not "employed" at all times alleged in this Complaint is not clear, Respondent denies the allegations contained in paragraph 1. 2. At all times alleged in this complaint, there was in effect Cook County Sheriffs Order 07-2, which related to any Secondary Employment of all employees of the CCSO. CCSO Secondary Employment Section IV (hereinafter Section IV), defined secondary employment as "any activity, external from CCSO operations, for which a CCSO member is compensated in salary, wages, commission, fees or other value, for services performed for an employer or in a self-employed status."
Cook County Sheriffs Order 07-2 speaks for itself. Further answering, Respondent denies the allegations contained in paragraph 2 because the allegations in paragraph 2 purport to quote the exact language of Section IV, but inaccurately substitutes the word "member" for the word "employee," which is the actual word used in Section IV. 3. At all times alleged in this complaint, Cook County Sheriffs Order 07-2 Section VI, Procedure (hereinafter Section VI), provided procedures by which all employees of the CCSO had to submit requests for secondary employment and receive permission through the chain ofcommand from the department head on an annual basis. Cook County Sheriffs Order 07-2 speaks for itself. Further answering, Respondent denies the allegations contained in paragraph 3 as these allegations do not correctly describe the contents of Section VI because all employees of CCSO are not required to submit requests for secondary employment on an annual basis, as alleged in paragraph 3. 4. Section VI(E)(3) provided that all approved secondary employment would be subject to continual and regular review and supervision, and that the review would consider as a factor for revocation of secondary employment "employment status changes, including injury on duty, duty accommodations/restrictions, ordinary disability, medical leave..." In the event of any change in employment status, such as injury on duty, Section VI(F) required supervisors to request suspension of an approved secondary request form, and reinstatement of secondary employment was not to be considered until expiration of all medical leave. Cook County Sheriffs Order 07-2 speaks for itself. Further answering, Respondent denies the allegations contained in paragraph 4, as those allegations do not accurately reflect the language of Section VI(E)(3) and VI(F) because, among other things, Section VI(E)(3) provides for regular review "by" supervision, and not review "and" supervision, as alleged, and Section VI(F) does not say that reinstatement of secondary employment was not to be considered until expiration of all medical leave, but rather, that "Reinstatement of the Secondary Request will be considered upon expiration of all medical leave." 5. At all times alleged in this complaint, Respondent was aware of the requirements of Cook County Sheriffs Order 07-2, as described in paragraphs, two through four, above. Between January 29, 2005 and January 1, 2008, Respondent submitted a
secondary employment form for his law practice each year, and he received approval signed by his superiors allowing him to work as an attorney for those years. Respondent admits that he was aware of the requirements of Sheriffs Order 07-2 beginning sometime after it was issued in 2007, that he was aware of the manner in which the Cook County Sheriffs Office applied and enforced the order, and that between January 29, 2005, and January 1, 2008, he submitted a secondary employment form for his law practice each year, and received approval signed by his superiors allowing him to work as an attorney for those years. Respondent denies the remaining allegations of paragraph 5, including the allegation that Respondent was aware of the requirements of Order 07-2 "as alleged in this complaint." 6. On or about September 10, 2008, Respondent was involved in an automobile accident while on duty near 1644 Algonquin Road in Palatine. Respondent's neck and shoulder were injured in the accident. As a result of his injuries, Respondent was treated at Northwest Community Hospital by Dr. Mina Foroohar ("Dr. Foroohar"). In or about September 2008, Respondent filed a worker's compensation claim to receive paid time off as a result of his injuries, and, in support of his worker's compensation claim, Dr. Foroohar submitted to the Sheriffs Office a report, dated September 11, 2008, which stated that Respondent's X-rays revealed a cervical spine fracture, and that Respondent "will not be able to drive at this time." Driving was a requirement of Respondent's employment with the CCSO. Respondent admits that on or about September 10, 2008, he was involved in an automobile accident while on duty near 1644 Algonquin Road in Palatine, that his neck and shoulder were injured in the accident, that as a result of his injuries, that he was treated at Northwest Community Hospital, and that in or about September 2008, he filed a worker's compensation claim to receive paid time off as a result of his injuries. Respondent is without sufficient knowledge of the truth of the remaining allegations contained in Paragraph 6, and therefore neither admits nor denies that allegation, but leaves the Administrator to his burden of proof. 7. On January 27, 2009, at the request of the Cook County Department of Risk Management for an independent medical evaluation, Respondent underwent a second medical
evaluation at Midland Orthopedic Associates by Dr. William Heller ("Dr. Heller"). On that date, Dr. Heller opined that Respondent "is unable to work at this time due to cervical spine condition," and Dr. Heller prepared a report of his findings and opinions and submitted that report to the CCSO. Respondent is without sufficient knowledge of the truth of the allegations contained in Paragraph 7, and therefore neither admits nor denies that allegation, but leaves the Administrator to his burden of proof. 8. Based upon the reports of Dr. Foroohar and Dr. Heller, the CCSO placed Respondent on Injured on Duty status, which, pursuant to Cook County Sheriffs Order 07-2 (described in paragraph four above), precluded Respondent from having secondary employment. Respondent knew or should have known that pursuant to Cook County Sheriffs Order 07-2 Section VI(E)(3) and (F), he was precluded from having secondary employment without written permission. Respondent denies the allegations contained in paragraph 8. 9. Respondent received his first temporary disability check from the Cook County Insurance Benefit Fund on October 22, 2008 in the amount of $2,569.12. Respondent received disability benefits from the Cook County Insurance Benefit Fund in the amount of $1,794.22 every two weeks thereafter, until November 2, 2010. The total amount of disability benefits Respondent received from the Cook County Insurance Benefit Fund during that time period totaled at least $29,482.42. Respondent admits the allegations contained in paragraph 9. 10. On January 30, 2009, Respondent was re-evaluated by Dr. Sean Salehi ("Dr. Salehi"). On that date, Respondent reported to Dr. Salehi that he did not drive due to neck stiffness, and Dr. Salehi reported Respondent's statement to the CCSO. Respondent is without sufficient knowledge of the truth of the allegations contained in Paragraph 10, and therefore neither admits nor denies that allegation, but leaves the Administrator to his burden ofproof. 11. Between at least February 2, 2009 and November 10, 2009, Respondent drove his automobile. During this time, he never reported to CCSO that he was driving. Respondent admits that between at leastfebruary 2, 2009 and November 10, 2009, Respondent drove his automobile short distances for very briefperiods of time, and denies that he drove, or was even able to drive, in the same manner that would have been required for a police officer to drive while on duty. Respondent admits that, between February 2, 2009 and November 10,
2009, he did not report to CCSO that he was driving, and he did not make such a report because the driving was so minimal and brief that it was not material for purposes of employment disability and he was still unable to drive in the same manner that would have been required for a police officer. 12. Despite being Injured on Duty status and receiving disability benefits from the Cook County Insurance Benefit Fund from October 2008 to November 2010, Respondent continued to work as a private attorney by representing the following clients and receiving compensation from those clients during the same time period that he was receiving disability benefits: Client Case Description Cordero Cordero v, Viren, 2007L00039 Marian Feeley Marian D. Feeley, 13DA381-078 Brittney Copano Copano v. city ofrolling Meadow et ah, 2008 L 014191 Dimitrious Giannakouras and In re Claim ofj & S Five O'Clock d/b/a Five O'Clock Sokol Tollumi and J & S Five Steakhouse, Claim No. BP 20946 O'Clock, Inc. Respondent objects to the argumentative nature of the first part of paragraph 12. Further answering, Respondent admits that he continued to have a law practice from October 2008 through November 2010, and that one or more of the cases identified in paragraph 12 were pending during that period of time, although Respondent may not have actually provided any legal services in those cases or received compensation from those cases during that period of time. Further answering, Respondent states that he submitted Secondary Employment Requests each yearduring that period of time related to his law practice andthat he submitted a request related to his serving as an elected member of the McHenry County Board in January or February 2009. Further answering, Respondent denies the remaining allegations of paragraph 12. 13. At no time after Respondent began receiving disability benefits in October 2008 did Respondent receive approval from CCSO to work as an attorney while his was on Injured on Duty status.
Respondent admits that he did not receive written approval for Secondary Employment during that period of time, and denies the remaining allegations contained in paragraph 13. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, but not the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision of the Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15,2013). 14. At all times alleged in this complaint, the McHenry County Board was a public body supported in whole or in part by taxation. Respondent admits the allegations contained in paragraph 14. 15. In December 2008, Respondent was elected a McHenry County commissioner for which he was also compensated, and he served as a McHenry County commissioner until about November 2010. The work Respondent performed as a McHenry County Commissioner is employment under Section IV, as described in paragraph two, above. Between December 2008 and November 2010, Respondent earned a total of approximately $38,655 in compensation for his role as McHenry County commissioner. At no time before November 23, 2010 did Respondent report to CCSO his appointment to the McHenry County Board. Respondent admits that in 2008 he was elected a McHenry County commissioner, that he served as a McHenry County commissioner until about November 2010, and that he received approximately $38,655.00 for serving in that elected office. Respondent denies the remaining allegations of paragraph 15, including the allegation that his service as McHenry County commissioner constitutes "employment" under Section VI of Cook County Sheriffs Order 07-2 and the allegation that at no time before November 23, 2010 did he report to CCSO his appointment to the McHenry County Board. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, but not the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision of the Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15, 2013). 16. At no time did Respondent receive written permission to act as McHenry County Commissioner while on the Medical Role as required by Cook County Sheriffs Order 07-2 Section VI(A), (E) or (F).
Respondent admits that he did not receive written permission to serve as McHenry County Commissioner, but states that he requested permission for secondary employment for his law practice and for his official position with the McHenry County Board to his first line supervisor and that his supervisor forwarded his request up the chain of command. Further answering, Respondent denies the remaining allegations contained in paragraph 16. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, but not the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision of the Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15, 2013). 17. Between 2008 and 2010, Respondent contributed to the Illinois Municipal Retirement Funds which is the retirement fun for municipal employees in Illinois. Respondent is without sufficient knowledge of the truth of the allegations contained in Paragraph 17, and therefore neither admits nor denies that allegation, but leaves the Administrator to his burden of proof. 18. At all times alleged in this complaint there is a statute in effect pertaining to county employees' and officers' annuity and benefit fund for counties with over 3,000,000 inhabitants. That statute, 40 ILCS 5/9-159(b), provided in pertinent part that disability benefits shall not be paid while an employee is "employed by a public body supported in whole or in part by taxation." Pursuant to 40 ILCS 5/9-108, any county officer elected by vote of the people, including a member of the county board, when such officer elects to become a contributor [to the Illinois Municipal Retirement Fund] is considered to be an employee. Respondent answers that the Illinois statutes speak for themselves as to what they provide. Further answering, Respondent admits that the heading of 40 ILCS 5/Article 9 is "County Employees' and Officers' Annuity and Benefit Fund - Counties over 3,000,000 Inhabitants," that 40 ILCS 5/9-159(b) states, "Disability benefits shall not be paid for any time for which the employee receives any part of his salary, or while employed by any public body supported in whole or in part by taxation," and that 40 ILCS 5/9-108(c) states, "any county
officer elected by vote of the people, including a member ofthe county board, when such officer elects to become a contributor." Further answering, 40 ILCS 5/9-108(c) refers to a person who is elected to the county board, which is a reference to the Board of Cook County, and then contributes to the Cook County pension fund referenced in 40 ILCS 5/9-101 and 9-105. This statutory provision does not pertain to a person like Respondent, who works in Cook County as a Cook County Sheriffs Police officer, but who is elected to the McHenry County Board, even though he is already contributing to the Cook County pension fund as an employee of Cook County, but does not elect to contribute a portion of his compensation as McHenry County Board commissioner to the Cook County pension fund. Further answering, Respondent denies the remaining allegations ofparagraph 18. 19. In or about February 2009, the Sheriffs Personnel Office began investigating Respondent to determine his level of activity in light of the injuries from which he claimed to suffer. As a part of its investigation, the Sheriffs Personnel Office conducted surveillance on Respondent which included witnessing him driving. The investigation also revealed that Respondent was then working as a McHenry County Board member and a lawyer while receiving disability benefits from the CCSO. Respondent is without sufficient knowledge of the truth of the allegations contained in Paragraph 19, and therefore neither admits nor denies that allegation, but leaves the Administrator to his burden of proof. 20. In May 2011, after concluding its investigation into Respondent, the CCSO Office of Professional Review notified Respondent of the allegations resulting from its investigations and on August 3, 2011, the CCSO Office of Professional Review de-deputized Respondent, reliving [sic] him of his lawenforcement powers,as a result of the investigation into his conduct. Respondent admits that in May 2011, the CCSO Office of Professional Review notified Respondent of allegations resulting from its investigations and, on August 3, 2011, the CCSO Office of Professional Review de-deputized Respondent, relieving him of his law enforcement powers, as a result of the investigation into his conduct. Respondent is without sufficient knowledge of the truth of the remaining allegations contained in Paragraph 20, and
therefore neither admits nor denies that allegation, but leaves the Administrator to his burden of proof. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, but not the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision of the Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15, 2013). 21. On May 3, 2013, after a multiple-day trial beginning on November 13, 2012 and concluding on January 29, 2013, the Cook County Sheriffs Merit Board ordered that Respondent be terminated from employment with the Cook County Sheriffs Department retroactively to October 6, 2011 as a result ofhis conduct as described in paragraphs six through 15, above. Respondent admits the allegations contained in paragraph 21. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, but not the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision of the Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15, 2013). 22. Respondent's conduct in receiving temporary total disability benefits from the CCSO and compensation from McHenry County and from his law practice was dishonest and fraudulent, and Respondent knew the applicable regulations did not allow him to collect disability benefits from the CCSO while getting paid by the McHenry County Board. Respondent denies the allegations contained in paragraph 22. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, butnot the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision of the Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15, 2013). 23. By reason of the conduct outlined above that occurred before January 1, 2010, Respondent has engaged in the following misconduct: a. Conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990); and b. Conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990).
Respondent denies the allegations of Paragraph 23, and each and every of them, including sub-paragraphs a through b. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, but not the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision of the Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15, 2013). 24. By reason of the conduct outlined above that occurred on or after January 1, 2010, Respondent has engaged in the following misconduct: a. Conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) ofthe Illinois Rules of Professional Conduct (2010); and b. Conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) ofthe Illinois Rules ofprofessional Conduct (2010). Respondent denies the allegations of Paragraph 24, and each and every of them, including sub-paragraphs a through b. Further answering, Respondent states that his conduct as alleged might violate an employment policy or regulation, but not the Illinois Rules of Professional Conduct, and as a result, this Complaint is barred by the decision ofthe Illinois Supreme Court in In re Karavidas, 2013 IL 115767 (November 15, 2013). AFFIRMATIVE DEFENSES 1. No Violation ofthe Rules ofprofessional Conduct Alleged - This case should be dismissed because the conduct alleged is not conduct that violates any rule of professional conduct and is not related to Respondent's practice of law, but is instead contains allegations of conduct that constitutes nothing but a violation the employment policy of the Cook County Sheriffs Office while Respondent was employed there as a police officer. See, In re Karavidas, 2013 IL 115767 (November 15, 2013), p.21, "professional discipline may be imposed only upon a showing by clear and convincing evidence that the respondent attorney has violated one or 18877378v2 131
more of the Rules of Professional Conduct. Mere bad behavior that does not violate one of the Rules is insufficient." 2. Claim Splitting - The Administrator is barred from bringing this charge against Respondent under the doctrine of Claim Splitting because the Administrator injected the conduct described in the Complaint into the record at the hearing in Case Number 2010 PR 133 to impeach witnesses and to argue conduct in aggravation. Having interjected this conduct into the prior case, in which the Hearing Board could consider the conduct for purposes of a possible increased sanction, the Administrator cannot now bring this same conduct in a separate disciplinary proceeding to have Respondent disciplined, since the Hearing Board in the prior case may very well consider this conduct in determining the appropriate sanction. 3. Estoppel - The Administrator is barred from bringing this charge against Respondent based on the theory of Estoppel because the Administrator chose to interject the conduct alleged in this Complaint into the evidence at the prior hearing in Case Number 2010 PR 133, and having made the decision to use this alleged conduct as a weapon against Respondent in that case, the Administrator should be estopped from prosecuting Respondent here for that same conduct. 4. Waiver - The Administrator is barred from bringing this charge against Respondent based on the theory of Waiver because the Administrator could have brought these charges against Respondent in the prior Case Number 2010 PR 133 but chose not to do so. In Case Number 2010 PR 133, the Administrator sought a stay of that proceeding so that the same conduct that is alleged in the present Complaint could be investigated and brought to the Inquiry Board so that it could vote a complaint against Respondent and then added to the allegations 18877378v2 131
before the Hearing Board in that case. Later, the Administrator abandoned the stay, but did not amend the Amended Complaint filed in that case to include these charges. WHEREFORE, Respondent, Robert Bless, requests that this Complaint against him be dismissed, that no discipline be imposed against him, and for such further relief as may be just and equitable. PROFESSIONAL BACKGROUND Pursuant to Commission Rule 231, Respondent states that he was licensed to practice law in the Stateof Illinois on May 6, 2004, and in no other state court, federal court or administrative agency. Respondent is a licensed Illinois real estate agent, having been so licensed since 1986. Thomas P. McGarry Thomas P. Sukowicz Hinshaw & Culbertson LLP 222 North LaSalle, Suite 300 Chicago, IL 60601 Tel 312-704-3000 Fac 312-704-3001 Respectfully Submitted By Oneo tne Attorneys for Robert Bless