Tuesday, November 27, 2012

Sanction Proposed For Arbitrator's Ex Parte Contacts

In a high-profile bar disciplinary case brought against a workers' compensation arbitrator who engaged in multiple ex parte contacts with attorneys, an Illinois Hearing Board has recommended a two-year suspension:

...the Respondent was the presiding official in the workers' compensation cases and, thus, the person who was required to be, and to appear to be, an impartial arbitrator. She failed miserably in that regard. By being in a position of authority and presiding in the cases in which the other three attorneys represented a party, the Respondent could have clearly stopped the exchange of ex parte e-mails by simply informing the other attorneys not to communicate with her ex parte in regard to any pending matter. Instead, the Respondent affirmatively participated in the ex parte communications and induced O'Sullivan, Barringer, and Nadenbush to continue to communicate with her in that manner. The ex parte e-mails the Respondent exchanged with O'Sullivan, Barringer, and Nadenbush discussed the merits of pending cases, contained disparaging comments about their opposing attorneys, and even contained advice from the Respondent regarding the handling of the cases.

The seriousness of Respondent's misconduct with respect to her actions concerning the setting of a secret hearing in a case before her is, in our opinion, profound, and she exhibited a total absence of understanding of, and responsibility for, her complicity in, and of the gravity of, her actions in that regard.

Freedom of the press, as embodied in the 1st Amendment to the United States Constitution, and the freedom to speak, write and publish freely, as embodied in Article I, Section 4, of the Illinois Constitution, are protected and priceless rights. But those rights are not protected if the performing of public functions, including, as in this case, the holding of an administrative hearing, are kept from the media and the public. Every attorney is, upon admission to the Bar, sworn to uphold the laws of the land, which include these constitutional rights of freedom of speech and freedom of the press. Conspiring to keep an administrative hearing secret, as Respondent did, was nothing less than an intentional failure to comply with her responsibilities as a member of the Bar. Moreover, during her testimony Respondent said nothing that indicates to us she understands or is remorseful for that misconduct, but instead she complained that a news organization's reporting had prevented her from obtaining employment in the legal profession.

The Respondent intentionally and repeatedly engaged in misconduct that jeopardized the appearance of her impartiality and the very integrity of workers' compensation proceedings. In addition, the Respondent deliberately set a special hearing in a case for the purpose of preventing the news media from attending the hearing, and then instructed two attorneys to make false statements if they were asked about the reason for the special setting.

Separate bar disciplinary cases were brought against the attorneys involved in the contacts at issue here. (Mike Frisch)


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