Wednesday, December 23, 2009

Time To Reflect

An Illinois Hearing Board has recommended a five-month suspension of an experienced attorney who has not been subject to prior discipline. In one matter, the attorney represented a longtime friend in an employment discrimination matter. He was found to have persisted in the prosecution of a frivolous claim:

After reviewing Respondent's submissions to the district and appellate court, we conclude that his numerous attempts to challenge the court's jurisdiction, his shifting theories and his failure to distinguish authority cited by [opposing party] URA all point to one conclusion: Respondent was unable to mount a legitimate argument to challenge the court's authority to dismiss Greviskes' complaint and therefore adopted a strategy of frivolous and vexatious litigation. His lack of a valid position should have been apparent to him when he first reviewed the cases cited in URA's motion to dismiss, as well as when the court explained its position at the hearing on his motion to dismiss. Without regard to the court's decision or relevant authority, he filed another motion and a post-trial brief in which he continued to attack the court's jurisdiction. His failure to distinguish URA's relevant case law, along with his persistence in raising an issue already ruled upon by the district court, are evidence of his lack of good faith in filing the documents. Rather than apprising the court of the state of the law, he engaged in tactics which could have no purpose other than to delay the proceedings and harass his opponent.

We have reached the foregoing conclusions on the basis of Respondent's filings, but also note our complete agreement with the district court and appellate court's conclusions regarding Respondent's presentation of positions that have no merit, and find further support for our decision in those opinions. (citation omitted) The fact that neither the district court nor the Seventh Circuit imposed sanctions directly against Respondent does not change our view. As noted by both courts, Respondent's conduct clearly played a role in their determinations that Greviskes was responsible for defense counsel's attorneys' fees.

 He also had responded to a letter from opposing counsel raising concerns about forged documents by suing counsel and the client. That suit was deemed frivolous as well.

In an unrelated matter, the lawyer made claims about his opponents and the judge that the hearing board found had violated ethics rules. As to the judge:

Respondent's accusations extended beyond the conduct of his opponents; they also encompassed the court's actions and rulings. After Judge Dolan announced his ruling in favor of Cerniglia and against Pezza, Respondent filed a post-trial motion requesting the court to set aside the judgment or grant a new trial. His motion accused the court of allowing the introduction of false evidence, manipulating and ignoring the evidence, failing to apply the law, acting as an advocate for the defendant, holding a Himmel hearing in order to exonerate the defense attorneys, and engaging in judicial conversion. Respondent continued to make the same assertions in subsequent filings relating to the post-trial proceedings and, following the denial of his motion, he repeated the allegations in a motion for substitution of judges. That motion was also denied.

Judge Dolan, whom we found to be credible, denied he ever ruled contrary to the evidence, accepted false testimony, deliberately failed to apply or understand the need to apply the rules of evidence, overlooked any significant evidence, manipulated evidence to favor one side, or was biased in favor of Cerniglia. In addition to Judge Dolan's testimony, we have his written opinions which demonstrate a careful consideration of Respondent's various arguments and sound reasoning in the disposition of each issue, including a ruling in Respondent's favor on defense counsel's motion to strike Respondent's post-trial brief. The record in this case does not support Respondent's claim that Judge Dolan was biased in favor of Cerniglia, attempted to manipulate the evidence, or made rulings without regard to the law, nor did he present legal authority to support his claims. (citation omitted)

Respondent's statements concerning Judge Dolan went beyond vigorous advocacy or a disagreement with the court's rulings, and reflect an unwarranted and reckless assault on the court's competence, objectivity and integrity. Whether or not Respondent was acting out of frustration with what he perceived to be judicial bias, as suggested by his counsel, his overwrought and baseless accusations cannot be excused. Respondent's proper recourse, as he well knew, was to preserve his objections and present a well-documented argument in a professional manner without insults or unsupported accusations of judicial dishonesty.

As to sanction:

...we conclude that a suspension of five months is warranted and will serve the purposes of safeguarding the public, maintaining the integrity of the profession and protecting the administration of justice from reproach.  Because Respondent has practiced more than thirty years without being subject to any other disciplinary orders and because his conduct did not involve dishonest acts, we do not believe that an additional period of suspension is necessary to achieve the objectives of the disciplinary process.  On the other hand, by interfering with the smooth function of the judicial process, placing burdens on his opposing counsel, and causing reputations to be jeopardized, his pattern of conduct had a negative impact on the integrity of the legal profession and the administration of justice.

We believe that a five month absence from the practice of law will provide Respondent with the time he needs to reflect upon his actions and consider ways to change and control his behavior. In addition, a review of professional ethics rules will aid him in his introspection and reformation, and therefore we make completion of an ethics class a part of our recommendation.

The hearing board also found that another charge had not been proven. (Mike Frisch)

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