Thursday, June 7, 2018

False Match.com Profile Of Opposing Counsel Draws Proposed Suspension

An Illinois Hearing Committee proposes a six-month suspension and until further order of an attorney who created a false profile onMatch.com of an opposing counsel

The Administrator filed a seven-count Complaint against the Respondent on August 4, 2017. Count I alleges that Respondent created an account and a false profile on the website of Match.com in the name of "Jane Doe" knowing that she had not authorized him to do so. (At the hearing in this matter "Jane Doe" was identified as attorney Michelle Mosby-Scott). Count I also charges that Respondent denied that he created the false profile in Doe's name when he was initially asked about it by a partner at his law firm. Count II alleges that Respondent knowingly completed a false online registration to the Obesity Action Coalition in the name of Jane Doe while knowing she had not authorized him to do so. Count III alleges that Respondent knowingly completed an online registration to Pig International in the name of Jane Doe while knowing she had not authorized him to do so. Count IV alleges that Respondent knowingly completed an online registration to Diabetic Living in the name of Jane Doe while knowing she had not authorized him to do so. Count V alleges that Respondent intentionally completed a false online registration in the name of Jane Doe for the organization entitled Auto Trader so that Doe would be a subscriber of and receive materials from that organization. Count VI alleges that Respondent knowingly created false reviews of Jane Doe's professional ability and posted the false reviews on Martindale.com and Lawyers.com. Count VII alleges that Respondent knowingly created false Facebook account in the fictitious name of John Kollengrade, created a false review of Jane Doe's professional ability in the name of Kollengrade, and posted the false review on the Facebook page of Doe's law firm.

The Respondent filed an Answer in which he admitted all of the factual allegations and the charges of misconduct.

His story

Respondent testified that his practice at the Thomson & Weintraub law firm involved mostly divorce work, and in the last couple of years divorce cases were about 90 percent of his practice. Many of his divorce cases were contested matters, and he found such work to be very stressful. (Tr. 190-93). In his family law practice in McLean County he had a lot of cases against Michelle Mosby-Scott. He said he dealt with her on a weekly basis, and sometimes a daily basis during trials of contested cases. Respondent said he and Mosby-Scott were always civil to each other. There was no "bickering, or name calling, or nasty letters that went back and forth or anything like that." (Tr. 195-96).

Over time, however, Respondent became frustrated with having cases against Mosby-Scott. He explained that he thought their objectives as to how to practice law and how to get people through divorce cases were far apart. He said he tried "to get people through the process as efficiently and quickly and painlessly as possible." On the other hand, he thought that "one of [Mosby-Scott's] goals was always to maximize the benefit to her client in any case." In other words, Respondent had a conflict in his attitude about how he practiced law and how he perceived Mosby-Scott practiced law. Respondent said he never confronted Mosby-Scott regarding the frustrations he had towards her with these cases. (Tr. 196-97).

Respondent acknowledged that he should have talked to someone about his frustrations, such as another partner, someone at church, his wife, or his parents. But he did not do so and internalized a lot of that frustration. (Tr. 198).

Respondent testified that he put a false profile of Mosby-Scott on Match.com without her knowledge. To do so, he used a fake email address. He put on the site a photo of Mosby-Scott and false information about her. Respondent said he knew at the time that the misstatements about her marriage and children were going to hurt her and have an impact on her, but he did not anticipate how effective it was going to be. He said he was frustrated and angry with her, was trying to be mean, and trying to make fun of her. He added that he was coming up with basically the meanest things. (Tr. 207-208, 211, 237-39, 241).

He acknowledged that he used a fake email address when he posted the profile of on Match.com. He also acknowledged that people, including Mosby-Scott's co-workers, friends, and parents of her children's friends could have viewed the profile. Respondent knew at the time he posted the misstatements about Mosby-Scott's marriage and children that it "would affect her." (Tr. 237-39).

In January 2017, Terrence Kelly, a partner at Respondent's law firm, began investigating to find out if anyone at the firm was responsible for the on line posting regarding Mosby-Scott. Respondent acknowledged that Kelly asked him whether he was responsible for the Match.com posting, and that Respondent denied any responsibility for it. Subsequently, Kelly confronted Respondent with the results of the forensic review of computers, showing that the posting on Match.com regarding Mosby-Scott had come from the computer on Respondent's desk and that Respondent was in the office at that time. Upon being confronted with the foregoing information, Respondent admitted he was responsible for the posting. After his admission, Respondent was grateful and felt guilt and shame. When asked why he did not admit his misconduct sooner, he said he was scared, upset, and in panicked." 

Sanction

 We recognize that the practice of law is a stressful professional. However, attorneys do not routinely snap and engage in a lengthy revenge attack on another attorney or anyone else, such as Respondent did. As we mentioned above, Respondent did not have a sudden burst of anger or a short-term lapse of sound judgment because some adverse incident occurred. Respondent's anger and serious lapse of sound judgment lasted over a lengthy period of time against someone who he acknowledged did nothing that "justified any kind of retaliatory harassing behavior."

We find in the record no credible explanation as to why the stress and pressure of handling divorce cases, among other things, caused Respondent to make his dishonest attacks on another attorney. There was a lack of any evidence from a clinical perspective as to why the Respondent was so affected to engage in the egregious misconduct.

We are also troubled by the fact that even though Respondent believes his handling of family law cases was a factor in causing his misconduct he continues to handle such cases. He is doing so after expressly telling Mosby-Scott that he was done practicing family law and after asserting that he told his current employer, Evans, that could not be a divorce lawyer anymore." (Tr. 221-25). As we mentioned above, Respondent attempted to minimize his family law cases by testifying "I do currently have a couple of family law cases, but it's a tiny amount of my current caseload that I'm handling." (Tr. 223). We also point out that Judge Reynard testified that he ranks contested family law cases as "the most emotionally stressful experience imaginable in litigation." (Tr. 331).

We find that the evidence shows Respondent is a very competent attorney and is well respected in the legal profession. Nevertheless, he engaged in egregious misconduct directed at another attorney that continued over a lengthy period of time and caused significant harm. In fact, his acts of dishonesty continued until he was caught.

We find no basis in the record for concluding that Respondent would not again engage in misconduct when confronted by the stress, pressure, and frustration of practicing law. We note that the character witnesses indicated they believe Respondent would practice law ethically in the future. However, those same witnesses also believed that to be true before learning of Respondent's misconduct in this case, and were shocked or surprised that he did so. We do not doubt the good faith of the character witnesses, but we do not find their testimony in this regard persuasive under the circumstances.

(Mike Frisch)

 

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