Charges Thrown Up Against Attorney

The Illinois Administrator has filed a complaint alleging ethical violations surrounding an attorney's statement that he was too sick to come to court and present his first oral argument before the United States Court of Appeals for the Seventh Circuit:

On April 14, 2011, at approximately 9:50 a.m., Respondent phoned the clerk's office and spoke to an employee at the Clerk's office named Andrew Burke. Respondent informed the clerk's office that he was ill, that he had vomited earlier in the morning, and that he did not feel well enough to come to court that morning.

Respondent's statements that he was ill, that he had vomited earlier in the morning, and that he did not feel well enough to come to court were false, and Respondent knew they were false because at no time was Respondent ill on the morning of April 14, 2011. Rather, Respondent did not appear for oral arguments because he felt unprepared.

The clerk's office informed Respondent to keep his phone on should the court require Respondent to appear for oral argument despite Respondent's statements that he was ill. Although the clerk's office subsequently contacted Respondent to tell him that his appearance was required, Respondent did not answer his phone or return phone messages left for him by the clerk's office.

He is alleged to have made similar false representations to his client and the ARDC, where he testified:

I went to bed April 13th, the night before oral arguments with a headache. And I gradually started to realize I was getting sick. I got cold sweats, I got chills, I did not sleep. It's not - - I wasn't in any condition to write a motion at that time. I - - the only thing that was on my mind is what - - am I going to be able to go to oral arguments. And after I vomited, I did feel better. And I considered going to oral arguments. I thought that I - - I was starting to think I could do this, then I decided no, I can't. Ultimately I decided not to go.

Question: how do you prove someone didn't vomit at a particular date and time? (Mike Frisch)