Friday, December 9, 2011

A Question Of Law

The Illinois Review Board has concluded (contrary to a Hearing Board) that an attorney made false statements in court pleadings. The attorney represented plaintiffs in a New York class action. The pleadings at issue were filed in federal court in Illinois.

The Review Board:

The question...becomes whether the statement was a statement of fact or law; whether Respondent’s statement was false; and whether Respondent knew or should have known that it was false. The Hearing Board concluded that Respondent’s assertion that Judge Block’s order was a "final judgment" which "awarded’’ Respondent $149,000 was merely a legal argument in a pleading concerning Respondent’s wishes regarding the impact of the court’s order rather than constituting any knowing misrepresentation regarding the order’s intent or content.

We disagree and find that the Hearing Board’s conclusion was clearly erroneous. We first note that Respondent did not characterize his statements in the pleadings themselves as argument or as a prayer for relief. He made the statements in portions of the motion usually reserved for factual summations. In the pleading before Judge St. Eve, the statement is made in the section Respondent entitled, "Nature of the Action". In the pleading before Judge Pallmeyer the statement is made in the opening paragraphs, as opposed to the accompanying memorandum of law. The court was entitled to accurate information regarding the proceedings before Judge Block; to hold otherwise would place a burden on the courts to sift through statements made by lawyers in pleadings and compare the statements with the underlying record to determine the truth...

there is no question that Respondent’s statements in the two pleadings that the Eckhaus "final judgment" "awarded" Respondent $149,000 were false. As found by the court, the Eckhaus order by Judge Block was not a final judgment. Nor can the order by Judge Block be read to award Respondent $149,000. There is no dispute that Judge Block never intended to give or grant Respondent $149,000; Respondent contends that the order itself, directing that the payment of $298,000 be made jointly to Mr. DiTommaso, Mr. Lubin and Respondent, must be read to so grant him $149,000. But Respondent’s contention does not make sense. A direction to make payment of $298,000 to three individuals jointly could not so be read. Respondent knew the statement was false, because he attended the hearing before Judge Block. He admits he was aware of the Judge’s intentions, and he read the judge’s order. In aggravation, he also knew he was not arguably entitled to $149,000. Respondent saw an opportunity when the check was mistakenly issued with two payees to obtain even more than he had originally requested.

Accordingly, we conclude that Respondent violated Rule 3.3(a)(1) by knowingly making false statements of material fact to Judge Pallmeyer and Judge St. Eve. Respondent also violated Rule 8.4(a)(5) by engaging in conduct that tends to defeat the administration of justice...

The Board recommends a four-month suspension. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/12/the-illinois-review-board-has-concluded-contrary-to-a-hearing-board-that-an-attorney-made-afalse-statement-to-a-court-in-a.html

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