Thursday, March 10, 2011

Hearing Held Without Accused Attorney Results In Proposed Suspension

An Illinois Hearing Board has recommended a suspension of six months and until further order in a matter involving an attorney's false statements to a tribunal in a post-dissolution of marriage proceeding. The board explained its reasoning:

 In this case Respondent’s admission that he reviewed the 1986 order, which was at the heart of his petition, is persuasive evidence that his statements were, in fact, intentionally made. The 1986 judgment was not lengthy. Of the two and one-half pages which comprise the judgment, the first page provides information regarding the marriage and the parties’ employment. The final page contains directives to the parties regarding maintenance, debts, division of Alfred’s pension and attorney’s fees. The paragraphs are direct and explicit, and leave no room for confusion or interpretation as to the payment of maintenance and pension benefits.

We simply cannot believe that anyone reading the paragraphs in the 1986 judgment would honestly put forth the assertions contained in Respondent’s petition, which assertions, we note, were favorable to his client. Therefore, we reject his defense, as stated in his answer, that he did not make any intentional misrepresentations. We also note that Judge Rivera, in ruling upon Geneva Smith’s request for attorney’s fees for having to respond to Respondent’s petition, concluded that Respondent made intentionally false statements in his petition. Judge Rivera’s resulting sanction order against Respondent and his client was upheld on appeal.

Respondent made another false and dishonest statement in January 2004 when he represented in a verified motion to substitute a judge as a matter of right that the motion was his first such request. Contrary to his sworn assertion, he had previously filed a motion to substitute a judge as of right on February 8, 2001, which motion was granted on that same day. In Respondent’s answer to the Administrator’s Complaint he admitted he was aware that 735 ILCS 5/2-1001(a)(2)(i) provides "each party shall be entitled to one substitution of judge without cause as a matter of right" and admitted that his statement in his January 2004 motion was incorrect. He denied, however, that he recalled filing any previous motion and therefore denied that his 2004 statement was intentional.

We do not accept Respondent’s professed lack of recall concerning his prior motion. Although there was a three year gap between the filing of his two motions to substitute as a matter of right, his February 2001 motion was memorable for being filed almost immediately after Judge Lowrence denied his motion to substitute for cause, and the motion to substitute as of right did result in the case being transferred. In fact, of all Respondent’s many attempts to have the Smith case reassigned, the February 2001 motion was the only one that was successful. We further note that the order granting the February 2001 motion bears Respondent’s handwritten name and address. Under the circumstances, we reject the contention that Respondent was unaware of his previous filing at the time he filed his motion in January 2004. In so finding, we are in accord with Judge Lopez who also did not accept Respondent’s claim of inadvertent error, and so held in his order imposing sanctions upon Respondent.

For the foregoing reasons, we find the Administrator proved by clear and convincing evidence that Respondent made a statement of material fact to a tribunal which the lawyer knows or reasonably should know is false in violation of Rule 3.3(a)(1), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). We further find that Respondent engaged in conduct prejudicial of the administration of justice in violation of Rule 8.4(a)(5), and engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

The hearing in the disciplinary case had been continued once at the request of the respondent and his attorney. A second request was denied. A third request from newly-retained counsel also was denied. The hearing went forward without respondent and his new attorney.  (Mike Frisch)

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