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If it's more than 30 minutes old, it's not news. It's a blog.

Friday, April 28, 2006

Illinois Disciplinary Board Has An Issue

This one caught our eye.

It appears an attorney allegedly misrepresented the facts about an indictment to his supervisory attorney; the attorney and supervisory agreed the way forward was to file a defamation claim; but that defamation claims was subsequently withdrawn.

We share with you, a general audience our opinions and fair comments which may not necessarily be widely held.

* * *

In general, it is our view that the following allegations are egregious because the attorney knew or should have known the facts, while at the same time knew the conduct was in contravention with the standards of professional conduct. Both factors warrant an upward adjustment in the sanctions against the attorney for the alleged misconduct.

It is our opinion, and this may not be widely held that this matter warrants review by the Illinois Attorney Disciplinary Board:

  • Alleged attorney frivolous action in lawsuit, [Ref: 3.1 ]

  • Alleged attorney false statements to the tribunal Ref: 3.3

  • Alleged attorney misrepresentations in the complaint to the tribunal [Ref: 3.3 ]

  • Alleged attorney conduct which placed an undue burden on others, in violation of the Illinois Rules of Professional Conduct. [ Ref 4.4 (e) ]

  • Alleged failure of the supervisory attorney to rectify the alleged conduct of the subordinate [Ref: 5.1 ]

  • Alleged supervisory attorney knowledge of the above misconduct before the tribunal, but failure to timely report and investigate as required [ 3.4 ]

  • Alleged improper trial tactics for taking action which is contrary to public policy--conduct the attorney should have known was inappropriate given the public statements related to the indictment were true/ratified by the withdrawal; and there was no basis for a claim or lawsuit. [ Ref: 3.4 ]

  • Alleged threats of a lawsuit prior to filing -- on the basis of allegedly false information -- to stifle Constitutional Rights of others to discuss in the open media factual information [ Ref: 3.4 ]

    * * *

    It remains to be understood whether counsel faces sanctions or other court remedies as the current rules provide under the tort of "malicious prosecution". [ Ref: Click ]

    * * *

    Based on allegations in the open media, it appears as though there is a reasonable basis to begin a preliminary inquiry:

  • Are the alleged statements true or false;

  • Did the alleged attorney make the statements; and

  • Is the conduct contrary to the rules of professional conduct.

    * * *

    For purposes of discovery, we admit into evidence, the following facts:

  • Plaintiff-attorney allegedly withdrew his defamation suit, leading one to question why the suit was originally filed;

  • Plaintiff-attorney was allegedly indicted, and this alleged indictment was subsequently dropped;

  • The open media has appeared to correctly report the alleged indictment; and

  • Subsequent discussions in the open media appear to raise reasonable questions as to whether the attorney is making truthful or untruthful statements.

    * * *

    The Illinois Bar has a problem. One of your attorneys appears to have a habit of filing defamation suits.

    We make no claim that the alleged attorney has or has not been defamed.

    Rather, our concern is four-fold:

  • 1. Business: The litigation risk;

  • 2. Free speech: The public has the right to discuss;

  • 3. Civility: Respect for fellow human beings right to discuss truthful information; and

  • 4. Rule enforcement: The model rules.

    These are principles as the heart of a civilized society.

    * * *

    Business-risks increase and counter-party-reliability drop when here there is a chilling effect on free speech. Bluntly, where there is an impact on a free flow of information, or the information is apparently corrupted, this tends to reduce the chances that outside investors will allocate capital to the region.

    Based on what little we know of the incident, we judge the following and make the following concerns and opinions known to the open media, blogosphere, and financial markets:

  • A. It appears as though there may be an enforcement issue in Illinois;

  • B. We are not inclined to favorably make any recommendations to allocate capital to Illinois; and

  • C. We remain concerned that at the time the nation has a poor track record of regulating the financial markets, the legal community appears to be just as willing to share what appears to be less than credible statements.

    * * *

    We make no claim that any of the individuals have or have not committed any crime. Rather, it is our judgment that the business environment in Illinois remains robust.

    However, we are concerned that a simple matter related to attorney conduct -- and an apparent recurring pattern conduct -- is not being remedied.

    There are two issues:

  • A. Either the alleged attorney is or he is not engaging in conduct that is contrary to the model rules;

  • B. Either the oversight system is or is not working.

    From this perspective, despite the apparent multiple defamation suits, there appears to be little that is acting as a "wet blanket" on what most might think should be an attorney that should "suck it up".

    * * *

    It is our view that the attorney remains in the law firm, and that his conduct be carefully observed both in and out of the court room.

    Whether he is or is not an attorney or state representative is of little interest. Our concern is that the alleged conduct does have a chilling effect on free speech, and the way forward is not to simply "roll over" and accept things.

    Rather, the State of Illinois and the Illinois Bar need to embrace this issue. The public not just in Illinois, but also across the country and around the globe should have some confidence that the State of Illinois is concerned with the rule of law.

    Clearly, the current discussions on impeaching the President warrant a "positive" for the state. However, in our view, this net positive is slightly downgraded when there appears to be a lone attorney -- perhaps supported by others -- that appears to have a -- how shall we say -- creative use of lawsuit.

    We make no claim that the suit was frivolous. Rather, in our opinion an attorney may have a good basis to bring suit.

    Yet, we are troubled. Because if the lawsuit over defamation is withdrawn within the same nexus that the indictment claims prove true -- namely, that the attorney was actually indicted, but not prosecuted -- then we ask: "What's the issue?"

    If there is no misconduct, then let the issue lie as it is.

    However, it appears as though someone -- for whatever reason -- chooses to discuss something that is true; and someone else chooses to have that discussion suppressed.

    * * *

    We make no claim that someone is being abusive, is a bully, or is abusing the legal system. Rather, it is our view that the abuses could be happening. The issue for the Illinois Bar and disciplinary system is to ask whether you want to intervene, or whether you want to have other factual discussions suppressed on the basis of what appear to be less than credible allegations.

    We have no idea.

    Suffice it to say, it is disappointing. The model rules are clear.

    * * *

    As we understand the model rules in general, there are certain provisions which apply to honesty. Click These rules are outlined in detail here [ Click ]

    As we understand them, the supervisory partner provide legal advice to the attorney-plaintiff. For purposes of discovery and litigation, we judge that this would amount to an attorney client relationship. Click

    At the same time this supervisory attorney would be bound by the model rules. [Click]

    * * *

    We make no claim to have any special information. Rather, we are guided by the following language:
    In order for a lawyer to be liable for malpractice to a non-client, a duty of care must be established to a non-client by showing that the primary purpose of the attorney/client relationship was to benefit the plaintiff. York v. Stiefel, 458 N.E.2d 488 (Ill. 1983).
    [ Click ]

    With the facts as we know them, it appears as though there is an issue to be understood:

    1. What benefit was derived by the supervisor attorney's legal advice to the attorney;

    2. Was the relationship between the attorney and supervisory one that would amount to an attorney client relationship under the Illinois Rules;

    3. Is there an ongoing benefit or contract between the attorney and supervisor which would amount and be furthered if the plaintiff did or did not do something in response to what the supervisory attorney did or said.

    * * *

    We broaden the analysis to ask to what extent this apparent attorney-supervisor relationship occurs. Namely, is there an issue with the supervisor knowing -- or should have known -- that the conduct, potential lawsuit, and planned litigation would or should amount to harassment over issues which the supervisory attorney knew or should have known were false?

    We are guided by the following language: [ Click ] In this case, we remain unclear what interest or benefit anyone would have with filling a defamation claim.

    Rather, it remains to be understood what knowledge the supervisory-attorney had of the indictment. To be clear, based on what we know -- which is not much -- it appears as though the Supervisory Attorney learned of the allegations about the indictment; and then asked the attorney about it.

    Yet, the facts as we understand them paint a benign picture. If we are to believe that the indictment was a "non-issue" in that there was no conviction, what was the basis of the attorney-supervisor communication.

    Are we to believe that the supervisory attorney asked the plaintiff-attorney about the indictment, and the plaintiff-attorney stated that "it was nothing"? If so, then the matter should have been dropped.

    However, as we understand things, this is not what happened. Rather, once the supervisory-attorney and plaintiff-attorney discussed the issue, the fruit of that conversation was something quite extraordinary: They appear to have agreed that the "way forward" was to file a lawsuit.

    So the issue goes back to the following nexus: If the attorney has allegedly been indicted, why did the plaintiff-attorney not say that and end the matter when discussing the issue?

    That is the point. It appears as though despite the alleged indictment being a "non issue", it appears the plaintiff-attorney left the impression with the supervisory-attorney the opposite impression than what can be supported by the facts -- that there was an issue; and the subsequently agreed that the "way forward" was to file a lawsuit.

    * * *

    There is a problem. It would appear as though the plaintiff-attorney knew that the indictment was true; and we judge this to have been a ratified fact when the plaintiff-attorney removed/withdrew the defamation claims.

    But the issue goes back to the conversation the plaintiff-attorney had with the supervisory-attorney:

  • A. What were the facts as the plaintiff-attorney represented them;

  • B. Were there some untruthful statements made by the platinff-atttorney to the supervisory-attorney;

  • C. Did the supervisory-attorney provide legal advice to the plaintiff-attorney based on information that was not accurate, misleading, false, or not consistent with the later decision to withdraw the lawsuit?

    * * *

    At this point, we can only speculate. But it seems odd to discover that the alleged indictment appears to not only be a real thing, but that the attorney appears to have admitted the indictment was known to exist and the basis for the withdrawal of the defamation suit. This is perfectly reasonable.

    But we have to go back to the discussion with the attorney-plaintiff and the attorney-supervisor:

  • Despite a claim of confidentiality or privilege, how can anyone claim that the conversation is or is not protected when the fruit of the conversation is to support a decision which is subsequently reversed?

    * * *

    Based on what little we know -- and we are open to be corrected -- it appears as though there is an issue for the Illinois Disciplinary Board to review.


  • A. Why was the lawsuit filed, then withdrawn;

  • B. What was the agreement or understanding between the plaintiff attorney and the supervisory attorney over the facts related to the alleged indictment

  • C. If the indictment is a real thing, then what was the basis for the supervisory-attorney to recommend/encourage/support/endorse the decision to file a defamation lawsuit

  • D. If the indictment is real thing, and the basis for the attorney-plaintiff to withdraw the defamation lawsuit, then what can be said of the nature of the conversation between the plaintiff-attorney and the supervisory-attorney?

    * * *

    We remain concerned. It appears as though the attorney-plaintiff has allegedly misrepresented facts to the supervisory attorney; and this alleged misrepresentation was the basis for the support of the decision to file the defamation claim.

    At this point, we are not clear. But what does seem clear is that someone learned of an indictment; and perhaps this is an issue which needs to be better understood: Was the indictment not known to the supervisory attorney; was the supervisory attorney supervised by the news of the indictment; and if the indictment was "no big deal" but still a "real thing" then what was the basis for the recommendation to bring suit?

    We can only speculate.

    But the problem we have is that all Americans are a potential target of this conduct. Namely, if two attorneys appear to do something -- namely agree to fact patterns that may or may not be true -- then we argue that such a conversation is not something that the courts should recognize as privileged.

    Rather, the fruit of that conversation -- whether based on alleged fraud, alleged deception, alleged carelessness, or simple oversight or lack of interest in details -- seems to put a premium on the interests of the legal profession, and put the public second.

    That is not acceptable.

    Rather, the way forward is to make it clear that an attorney does not have the power nor the "special status" to both wiled the sword of justice, while at the same time using that sword to compel the public be silent of issues.

    * * *

    We remain open to discussion. However, we are not impressed. Bluntly, it appears as though the attorney and supervisor did not have a fair meeting of the minds based on a consistent fact pattern.

    In our view, the plaintiff-attorney and supervisory-attorney need to have a special visit by the Illinois State Disciplinary Board to find out inter alia

  • A. What was the nature of the conversation

  • B. Why did they agree to do something

  • C. What was understood before the filing of the suit

  • D. How did this understanding later change as the facts surfaced, and the defamation suit was withdrawn

    In our view, again this is merely a personal opinion and not something that may be widely accepted, the conversation appears to been related to some inconsistencies over what the attorney did or didn't say; and the fact that someone may have been surprised.

    In our view, the surprise was that the supervisory attorney learned of something; and the "way forward" was for the plaintiff-attorney to claim that it was a lie, untrue, or false.

    However, by withdrawing the defamation suit, the plaintiff attorney appears to have admitted that the alleged facts -- as reported in the media -- were true; and that the basis for the conversation, and understanding from that conversation was false.

    We may be incorrect. But this takes us back to the model rules and issues of honesty.

    * * *

    We may be wrong. But in our view, the plaintiff-attorney appears to have some issues. Whether this is something that did or didn’t happen is irrelevant. The issue is whether that issue is over.

    Whether the indictment translated into formal charges, or was dripped is irrelevant. The issue for a member of the bar is to face what has or happened and reconcile.

    In our view, if the fruit of that conversation with the supervisory-attorney was an agreement to file a defamation suit, but the suit was dropped, then it appears as though the attorney hasn't reconciled what has or hasn't happened over the indictment, and still has issues with that.

    That is fine. But the purpose of "dropping an indictment" is to say, "It's over." So we ask: Why does the attorney appear to have "an issue" with something that is "over"?

    If it was "over" then would it not have been reasonable for the attorney-plaintiff to have agreed, "Yes, this claim of an indictment is true, but it was dropped" [as was later reported, and did occur."

    We make no claim to have an insight into the plaintiff-attorney's mind, nor do we claim to have any facts. Rather, all we have is the scant record before us: A single press release, an apparent pattern of filing suit, and then the withdrawal.

    * * *

    We remain open to be persuaded that this is a misunderstanding. However, we do remain concerned that the public that appears to truthfully report the facts as best as they can may be subject to litigation for speaking those facts.

    For purposes of litigation, we ask to what extent the defendant has explored issues related to Anti-Slapp statutes; or other motions and cross claims related to frivolous lawsuits. Again, we make no claim that there is a basis for such an action; but based on the events and facts as we have -- and the scant knowledge of what appears to have transpired between the two attorneys -- it appears as though there is an issue of discovery over what some may argue is a privileged conversation.

    That issue of privilege may be real. But let us recall that privilege is not absolute when the fruit of that privilege is to do something that is then contracted, public, then reversed. Rather, this is a public act and no longer protected. We may reasonably make adverse inferences.

    Namely, the attorney-client privilege may be real; but it appears as though a reasonable fact find could conclude that there was some sort of alleged misrepresentation made during the initial attorney-supervisory consultation. Even if this issue is not litigation in an Anti-Slapp statute, we would hope that the Illinois Disciplinary Board review the matter, and make it clear: Attorneys cannot rely on attorney client privilege on matters related to professional conduct, even if that conduct is within your own firm. Once you step out of the insular umbrella of your firm, and enter the nexus of the public court your actions and conduct reflect on the integrity of the bar.

    The issue before us is not the attorney and supervisor. The issue is whether the Illinois State Bar and Disciplinary Board have the statute and credibility to do what appears to be needed: A plan going forward to reconcile the apparently mysterious conduct, and the fact pattern which appears to be at odds with what we might otherwise assume to be a sterling attorney record.

    Either way, we make our own judgments, and appropriately allocate capital and note well the nature of the litigation risk required before entering the American legal nexus. It is disappointing one must have on hand several malpractice attorneys, a bevy of court documents, and piles of rules of evidence merely to make a casual observation of what may or may not be a material issue for corporate counsel.

    Thank you Illinois for opening yourselves to scrutiny and examination.

    * * *


    For those of you who cannot read between the lines, it is our opinion the allegations asserted above are true; and the plaintiff attorney has allegedly misrepresented information to the supervisory attorney, in alleged contravention to his professional standards of conduct.

    It remains to be understood whether the supervisory attorney was mislead, failed to investigate something they should have, or failed to report alleged misconduct that should have been reported under the "self-regulation system."

    To be blunt, it is our opinion that:

  • A. The plaintiff-attorney is a liar and has no credibility;

  • B. He has made out of court inconsistent statements;

  • C. He misleads others;

  • D. He fully knows that others realize this;

  • E. His only "defense" is to keep people quiet;

  • F. He abuses his position as an attorney to intimidate others to be silent about issues which are true;

  • G. He abuses the legal process, violates the rules of professional conduct, and cannot be trusted to adhere to freely chosen professional standards of professional conduct;

  • H. He is willing to abuse the legal process to deny the constitutionally protected rights of others, thereby raising reasonable questions about the seriousness to which he takes his oath to protect that Constitution and the rights others enjoy; and

  • I. The Illinois Attorney Disciplinary Board should know about this conduct, and other attorneys have failed to report this alleged misconduct to ensure the integrity of the Illinois Bar is maintained.

    To be clear, we're not accusing him of any crime, rather we simply share with you our personal opinion: This attorney's conduct is what reasonably undermines public confidence in the American legal system and profession. We see the result of "self" regulation in America.

    Caveat emptor.