Wednesday, November 24, 2010

"The Not Always Clear Line..."

A majority of the Illinois Review Board has rejected some findings and a proposed suspension of a Hearing Board and has recommended a public censure of an attorney for misconduct in connection with the designation of medical experts in civil litigation. One of his "doctors" had lost his license in the wake of a criminal conviction.

The majority found that the the circumstances were such that suspension is not appropriate. Then, this "postscript" turns the tables on the bar prosecutor:

This case involves the not always clear line to be drawn between allowable, but imperfect advocacy and professional misconduct. In courtrooms all across America every day, lawyers make mistakes, they are sometimes careless and sloppy, and they push the envelope, so to speak. As advocates, they are often less than objective and they attempt to gain every advantage from real or perceived weaknesses in the positions of their adversaries.

Our disciplinary system cannot be so unforgiving that every misstatement of a lawyer offered in the heat of courtroom battle ends up as an ARDC matter. One need look no further than the disciplinary proceedings in this case to appreciate the problem. The Administrator's trial counsel asked [the attorney] whether his instanter motion for leave to file the unsigned opinion letters had been granted, and [he] responded, "No." The following then transpired:

Q.    But that's contrary to what Judge Frobish wrote on the docket sheet where it says on Page 2 of Administrator's Exhibit No. 1 on the 3/22/05 date, the third paragraph, "[the attorney] files this day the motion for leave to file the 5/2-622 affidavits and makes three separate filings containing the attorney's affidavit and an unsigned opinion letter," correct?

A.    That's exactly what the half sheet says, yes.

Thereafter, and presumably on the basis of the foregoing evidence, the Administrator's counsel successfully argued to the Hearing Board that the affidavits and opinion letters had been filed. But as this report shows, neither the docket sheet, nor transcript, indicates that the motion was granted. The filings referenced in the docket sheet were attachments or accompanying documents to the instanter motion, which is usual practice for any proposed filing.

Should not the Administrator's counsel have known this and conceded that the affidavits were not filed pursuant to court leave? This fact was arguably important because it corroborated [the attorney's] defense that, once in the courtroom, he made no attempt to mislead the judge with the affidavits.

Similarly, the Administrator's counsel seized upon the "One has not" paragraph to claim that [the attorney] represented to Judge Frobish that one of his testifying experts had signed a letter opinion. She did it during questioning of [the attorney] and again in final argument. As noted, this claim on her part was a skewed reading of the record because 8 lines later in the transcript, probably within 20 seconds at the hearing, [the attorney] corrected the misstatement by telling the judge that only his consultant, and neither of the testifying experts, had signed a letter opinion.

And she was apparently successful in her argument because the Hearing Board quoted only the "One has not" paragraph in making its finding that [the attorney] made false and misleading statements. Again, should not counsel have carefully explained to the Hearing Board that [the attorney]corrected his misstatement, and that he had actually represented to the judge that only his consultant had signed a letter opinion?

Yet, if the Administrator's counsel was to be subject to a disciplinary complaint for the foregoing conduct, we might as well shut down America's courtrooms. No lawyer would be immune from a similar complaint. In short, our adversary system encourages zealous, but not always perfect, advocacy. In our view, most of the charges against Respondent, like the examples above, were instances of imperfect advocacy — not professional misconduct. (citations to record omitted)

A dissent explains the key facts and would favor a suspension:

At the hearing [in the underlying case], the Respondent in presenting the affidavits also made statements that were intentionally misleading. He told the Court the board certified physician in internal medicine with the specialty in nephrology had reviewed the records and was the one who drafted the letter attached to the Respondent's affidavits. The Hearing Board found that this statement was "a statement of material fact to a tribunal which Respondent knew or should have known was false in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct."  In his testimony at his disciplinary hearing, the Respondent acknowledged that Dr. Leslie was the only physician with an expertise in internal medicine and nephrology with whom he had ever discussed the case. He also acknowledged that as of [the hearing date], Dr. Leslie had never reviewed any medical records nor issued a written report in support of the case's merit. He also acknowledged that medical records which Lerner had said should be obtained, never had been.

Finally, the statement Respondent made when questioned by Judge Frobish at the...hearing that "I do have a signed letter of consultant" was not a truthful statement, as the majority suggests, because the full statement was "I do have a signed opinion letter of a consultant who is an internal medicine physician." He did not and he knew he did not.

The majority notes that the affidavits were not actually "filed." However, they were clearly submitted to the Court to advance the plaintiff's position. The question is were they false and were they presented with the intent to mislead the Court. The Hearing Board concluded they were and I do not see a basis for concluding otherwise. To this point, the appellate court in affirming the dismissal in the Crull case reached the conclusion that the Respondent was trying to hide Lerner's identity and lack of qualifications. Crull, 388 Ill.App.3d at 1046, 904 N.E.2d at 1191. Regrettably, it is obvious what he was doing and why.

Because I have reached a different conclusion about the Hearing Board's findings, I cannot join in the recommendation of a censure as the appropriate sanction. In other cases, the Supreme Court has suspended lawyers for misconduct involving false and misleading statements to a court.

(Mike Frisch)

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