Wednesday, September 7, 2011
The Illinois Review Board found no ethical violations, and has recommended dismissal, of charges of misconduct arising from these rather unusual facts:
Matthew Brennock ("Matthew") met Respondent at a health club in the summer of 2006. They became very good friends and ultimately became intimate. Matthew met Chablis Tipton ("Chablis") on Match.com in November 2006. They also had an intimate sexual relationship which, according to Chablis, continued from December 2006 until September 2007.
Matthew’s Match.com profile falsely stated that he was divorced. In November 2007, Chablis discovered that Matthew was married. Chablis told him that if he did not tell his wife about their relationship, she would. She and Matthew exchanged several phone messages and e-mails. Once she went to Matthew’s home and threatened to contact his wife and children.
On November 7, 2007, Matthew made a report with the Oak Park Police Department, complaining of Chablis’ telephone harassment. According to Matthew, the police officer he spoke to suggested that he get an order of protection against Chablis. After Chablis called his home and hung up numerous times that night, Matthew decided to do so.
Matthew testified that he had not told the Respondent of the nature of his relationship with Chablis, only that he was being harassed and intended to get an order of protection. At this time the relationship between the Respondent and Matthew was no longer intimate. As a friend she offered to represent him, and Matthew agreed.
Respondent accompanied Matthew to court on November 9, 2007 and filled out the necessary paperwork. An ex-parte order of protection was entered, and hearing on an extension of the order was set for November 30, 2007.
When the case was called on November 30th, Respondent approached the bench with Matthew. Chablis appeared pro se. Chablis objected to the extension of the order, explaining that she was not harassing Matthew as she was involved in an intimate relationship with him. Chablis had evidence of their relationship, namely 59 printed pages of e-mails and text messages. These included two marriage proposals from Matthew and his promise to love her for eternity.
Respondent asked the judge for an opportunity to review the documents and the court passed the case to allow her to do so. She and Chablis sat down on a bench outside the courtroom and she began to review the information. Matthew followed them into the hallway and became enraged as Respondent was examining the e-mails and text messages and dismissed Respondent as his lawyer and told her to give Chablis her documents.
Respondent returned to the courtroom and made a motion to withdraw as Matthew’s attorney which the court granted. Because Matthew was upset and Respondent was aware that he had anger issues, she asked the Sheriff for an escort to her car. While she was seated at a table in the courtroom waiting for her escort, Matthew came forward and unsuccessfully attempted to take Chablis’ documents from the table. According to Chablis’ testimony, in doing so, Matthew grabbed Respondent’s shoulder.
When Respondent left the courtroom, she was asked by the Sheriff if she wished to press charges. She decided to file a battery complaint and also to request an order of protection. Matthew was arrested in the courtroom. The judge hearing the motion to extend the order of protection dismissed the case noting that Matthew had been arrested for "assaulting and battering his attorney" and that Matthew was not present to pursue his order of protection.
Later that day, Respondent telephoned Matthew’s wife, Sally Brennock ("Sally"). According to Respondent, the purpose of her call was to inform Sally that Matthew was in jail and that he was going to be served with order of protection papers by a process server. She testified that she intended to arrange for service at a time when Matthew’s children would not be home. In the course of the telephone call, Respondent also told Sally that she and Chablis had had affairs with Matthew.
Sally testified that she already knew about Chablis. She explained how she learned the information. Matthew’s cell phone account was in his wife’s name, and for more than a year, his bills had been higher than normal by approximately $300-$400 per month. There were phone calls and hundreds of text messages that were all to the same number. When she asked her husband about the calls and texts, he told her that they were to a man that he worked with, but the calls all occurred in the middle of the night. After several months of increased bills, Sally did a reverse directory search and discovered that the phone number was listed to Chablis.
Chablis had appeared at Matthew’s house once while the family was eating dinner. She looked upset and asked to speak to Matthew. He went outside and as his children looked on, they engaged in an animated conversation that lasted about fifteen minutes.
Sally spoke to Chablis after she spoke to Respondent. Chablis seemed angry or hurt, and felt that she had been deceived. Chablis also delivered "a lot of very graphic e-mails" concerning her interaction with Matthew to Sally at her office.
According to Sally, she and her husband had had problems in their marriage for years. They had discussed divorce before. In December 2007, Sally began divorce proceedings. She testified that she left the marriage because of her concerns for the physical and emotional well-being of herself and her children. According to Sally, it had nothing to do with other people.
No misconduct because:
...the Respondent never took on the representation of another client and used information gained from her representation of Matthew, the former client, in the representation of the new client. At the time of the misconduct alleged in this case, Rule 1.9(a)(2) at issue here prohibited a lawyer who formerly represented a client from using "information relating to the representation to the disadvantage of a former client, unless (a) such use is permitted by Rule 1.6; or (b) the information has become generally known." The Hearing Board found that Respondent’s disclosure to Sally of Matthew’s affair with Chablis did not violate the rule because it was "generally known," noting that Sally knew about it and that those people in the public courtroom also knew about it.
With slight revisions, this scenerio was a question on my PR exam a couple of years ago. My memory isn't great, but I'm pretty sure "no violation" was not the correct answer.
Of course, my exam was based on the charges, not the findings reflected here. (Mike Frisch)