Friday, February 27, 2009

Drafting Brief Is Practicing Law

An Illinois Hearing  Board concluded that work performed by a suspended lawyer involved practice of law in violation of the court's suspension order. The board's crucial findings of fact:

...we find that Respondent practiced law while he was suspended. The facts of this case are essentially undisputed. Respondent was suspended from the practice of law between November 7, 2005, and February 7, 2006. Prior to the effective date of the suspension, he arranged for [another lawyer] O’Connor to handle some of his cases, including the Kotek

appeal. Respondent represented the plaintiff-appellants in that matter, and their appellate brief was due to be filed on January 17, 2006. Sometime in January 2006, Respondent began drafting the brief. Respondent based the brief on documents he had previously filed in the circuit court. He felt he was in a better position to write the brief than O’Connor because the case involved complex legal and factual issues, and it would take O’Connor too long to become familiar with the record. Respondent completed three or four drafts of the brief before he gave a copy to O’Connor for his review and approval.

On January 10, 2006, Respondent met with O’Connor to review the brief, and they discussed how to preserve an issue in the appeal that the circuit court had not addressed. After discussing the matter, they agreed to include the issue in a footnote. Respondent added the footnote to the brief, made copies, and filed it.

Respondent and O’Connor mistakenly thought the brief was due to be filed on January 18, 2006, instead of January 17, 2006. Accordingly, when Respondent tried to file the brief on January 18, 2006, he needed a motion to file the brief instanter. Respondent drafted the motion and an affidavit for O’Connor to sign. On January 19, 2006, Respondent discussed the appeal with Carlson, the attorney for the defendants-appellees. He also told Carlson that he struggled with how to address the issue he included in the footnote.

Drafting an appellate brief requires the practice of law. Contrary to Respondent’s argument, the appellate brief was not simply a different version of his circuit court pleadings. In fact, Respondent’s own testimony contradicts this argument. He stated that he spent 15 to 20 hours drafting the brief and completed three or four drafts of the brief before giving it to O’Connor. Further, even a cursory comparison of the motions and the appellate brief reveals that Respondent added significant legal arguments to the brief, which included citations to case law that were not in the circuit court motions. These facts establish that Respondent used legal skills and knowledge to identify the legal issues, conduct legal research, and apply the case law to the facts of his case. This is the essence of practicing law.

Moreover, Respondent discussed a significant legal issue with O’Connor. Respondent admitted, and O’Connor testified, that they discussed the strategy of how to address an issue in the appellate brief that the circuit court failed to address. The discussion centered on how to preserve the issue for review. After they decided to address the issue in a footnote, Respondent drafted it. We conclude that a discussion involving the preservation of an issue for review involves the practice of law because it required the use of legal knowledge and the skill to apply legal principles. Additionally, Respondent drafted a motion for leave to file the brief instanter and an affidavit. For the reasons similar to those already stated, we conclude that Respondent was practicing law when he drafted the motion and affidavit.

Respondent argues that a finding that he practiced law would have an adverse impact on the legal profession because he did nothing more than paralegals and law clerks do at law offices throughout Chicago. We decline to accept Respondent’s extrapolation of our findings. We are not breaking new ground by finding Respondent practiced law. We are simply applying well-established case law to the facts of this case. Respondent was not a law clerk or a paralegal. He was a suspended attorney.

The attorney had been suspended for making an illegal campaign contribution. The board here proposes another three-month suspension. The Adminstrator had sought a one-year suspension. The board found that the conduct was the product of a mistaken belief rather than fraud or dishonesty. (Mike Frisch)

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Bar Discipline & Process | Permalink

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