Monday, August 4, 2014

Flying Blind

A rather unusual set of ethics charges was recently filed by the Illinois Administrator.

The complaint alleges that the attorney instituted frivolous litigation in connection with the Malaysian Airlines Flight 370 matter

As of the date this matter was referred to the Inquiry Board, no trace of the aircraft had been found, and no evidence had been recovered which indicated that it had crashed or had experienced any mechanical malfunction.

On March 25, 2014, Respondent, or someone acting at her direction, using the name "Monica R. Kelly," prepared and signed a Verified Petition for Discovery, pursuant to Illinois Supreme Court Rule 224, against the Boeing Company and Malaysian Airlines, and filed it in the Circuit Court of Cook County. The clerk of the Court docketed the matter and assigned it case number 2014L003408.

Under Illinois Supreme Court Rule 137, by signing the petition described...above, Respondent certified that she had read the petition and that, to the best of her knowledge, information or belief formed after reasonable inquiry, it was well grounded in fact and was warranted by existing law.

In the petition..Respondent alleged that she represented the estate of Firman Chandra Siregar ("Siregar"), that Siregar had been a passenger on Malaysian Airlines Flight 370, that the aircraft had crashed, that Siregar had been killed.

Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence had been discovered regarding the location or disposition of Malaysian Airlines Flight 370.

...Respondent alleged that Siregar’s estate reasonably believed that Malaysian Airlines Flight 370 had crashed as the result of negligent design, manufacture, repair and maintenance of the aircraft by the Boeing Company.

Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence existed that Malaysian Airlines Flight 370 had experienced a mechanical malfunction, and that the evidence in fact showed that the aircraft had changed direction and had continued to fly for several hundred miles after its last contact with air traffic controllers.

In March 2014, at the time Respondent filed the petition described above, Illinois Supreme Court Rule 224 authorized the filing of such a petition "for the sole purpose of ascertaining the identity of one who may be responsible in damages," and Illinois courts had long held that a Rule 224 petition was not appropriate if the identity of any potentially-responsible defendant was known to the petitioner. Guertin v. Guertin, 204 Ill.App.3d 527 (3rd District, 1990); Roth v. St. Elizabeth’s Hospital, 241 Ill.App.3d 407 (5th District, 1993)

Respondent’s petition in case number 2014L003408 was frivolous, because Supreme Court Rule 224 did not permit the filing of such a petition where the "identity of one who may be responsible in damages" was known to the petitioner, and Respondent knew that the missing aircraft had been manufactured by the Boeing Company and that it was being operated by Malaysian Airlines when it disappeared. Respondent therefore had no need to discover the identity of a responsible party, and no basis for filing a Rule 224 petition.

On March 25, 2014, Respondent conducted news media briefings in Kuala Lumpur to announce the filing of her action against the Boeing Company and Malaysian Airlines and to claim that those entities were responsible for the disappearance of Flight 370.

On two occasions in 2013, the Hon. Kathy M. Flanagan, a Judge of the Circuit Court, had dismissed Rule 224 petitions filed by Respondent against aircraft manufacturers, on the basis that such petitions were not authorized by the rule, when the identity of a potential defendant was known to the petitioner.

On March 28, 2014, the Judge Flanagan entered, sua sponte, a memorandum opinion and order dismissing Respondent’s petition in case number 2014L003408, in which the judge found that the petition exceeded the scope of Supreme Court Rule 224, that it was baseless, and that Respondent knew that the filing of a Rule 224 Petition was inappropriate where the identity of a potential defendant was known.

Earlier coverage from the Chicago Tribune

Aviation litigation experts contacted by the Tribune agreed that while taking court action to preserve evidence in advance of a lawsuit can be an important step, filing such litigation before a plane had even been found seemed to be jumping the gun.

"It seems to be a legal gray area when we are operating without the plane," said Bruce Ottley, a professor and co-director of DePaul University's International Aviation Law Institute. "It certainly gets them attention to be first. ... But when you file it before we even have verified that the passengers are dead, it may be a little bit early."

It wouldn't be the first time the tactics of Ribbeck Law Chartered or its associates had drawn complaints. Last year, after the Asiana crash, the National Transportation Safety Board recommended that Illinois regulators investigate the firm over allegations its attorneys violated U.S. law barring uninvited solicitation of air crash victims in the first 45 days after a crash.

(Mike Frisch)

Bar Discipline & Process | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Flying Blind:


Post a comment