Monday, November 24, 2014

Suspension Proposed For Blogging On Probate Matters

An Illinois Hearing Board has proposed a suspension of three years of an attorney who it found had

made false statements concerning the integrity of the judges, knowing  they were false or with reckless disregard for their truth or falsity, and  engaged in dishonest conduct and conduct prejudicial to the administration of  justice. The Hearing Board found, while Respondent had accused judges and other  attorneys of criminal conduct, there was not clear and convincing evidence that  she presented or threatened to present criminal charges, in order to obtain an  advantage in a civil matter.

As set forth below, the statements involved a guardianship matter and were made on a blog

Beginning in November 2011, Respondent wrote and  administered an Internet blog about the Sykes case. The blog consists of a  series of writings, by various persons, including Respondent. Respondent made  numerous blog posts over time. Some of those writings concern probate court and  the probate system in general. Other writings relate specifically to the Sykes  case and persons involved in it. The blog alleges corruption, in probate court  in general and the Sykes case in particular. For a time, there were  two blogs, one of which described itself as "(a)n attorney blog concerning  corruption and greed in the Probate Court of Cook County," because Respondent  used hosting sites which offered different features. (Tr. 318-19, 606-610,  820-21, 1026-28, 1647; Adm. Exs. 17-32, 34-49). For simplicity, we designate  them as the blog.

Respondent testified she produced the blog as a  private person not as an attorney. (Tr. 384). Respondent also testified her  knowledge and skill as an attorney was required to post and author the  statements on the blog. (Tr. 410). On the blog, Respondent stated she published  the blog primarily from a legal standpoint and it took an attorney to make the  comments appearing on the blog. (Tr. 411-12). When Respondent began keeping  track of time she spent on the blog, she calculated its value using her hourly  rate as an attorney. (Tr. 410; Adm. Ex. 17 at 20). As admitted in Respondent's  Summary, the blog was open to the public. Respondent estimated, by the time of  the hearing, her blog had an audience of about 40,000. (Tr. 318).

The blog includes allegations of wrongdoing by  specific individuals involved in the Sykes case. (Tr. 608-610, 821, 1026-28).  These allegations are summarized in a "Table of Torts." While those persons are  referenced by initials, the Table identifies the persons to whom the initials  refer. Respondent prepared the Table of Torts. Because Respondent periodically  added material to the Table of Torts, more than one version is in evidence.  Respondent acknowledged the exhibits fairly represent snapshots of the Table of  Torts. (Tr. 288-91, 303, 1594-95, 1611-14; Adm. Exs. 33, 34).

On the blog, Respondent described the Table of  Torts as "TEN PAGES of questionable behavior, corruption, misfeasance,  malfeasance, perpetration of misdemeanors and felonies," occurring in the Sykes  case, (Adm. Ex. 24 at 16), and as a "Summary of the Case! - 90%+ of the wrongful  conduct all in one convenient place." (Adm. Ex. 21 at 10). We begin, therefore,  with the Table of Torts, for the purpose of providing an  overview of the blog and context for the statements with which Respondent is  charged.

The hearing board

Respondent was licensed to practice law in 1986,  nearly thirty years ago. She has no prior discipline.

While Respondent acted with reckless disregard for  the truth of her accusations, based on our impressions of Respondent, we do not  believe she was acting out of a deliberate purpose of harming the judges and  attorneys involved. Respondent genuinely, though unreasonably, believed  something was wrong with the proceedings in the Sykes case. Respondent knew Mary  and Gloria before the guardianship. While Respondent used decidedly misguided  means, we believe she was acting out of a sincere desire to help Mary. We were  also convinced Respondent truly believes there are abuses in the probate system  and the system needs to be changed, to protect persons who are the subject of  adult guardianship proceedings. From our perspective, it appears Respondent has  genuine concern for senior citizens and perceives the senior population as  vulnerable, especially to financial exploitation. This concern, as a general  matter, is a legitimate one, even though Respondent had no reasonable basis for  believing the judges or attorneys in Mary's case were corrupt.

We do not believe Respondent acted with a  self-serving motive. The evidence did not support a theory that Respondent was  reaping a significant financial benefit from her activities including operation  of the blog.

The proposed suspension will, if adopted, continue until reinstatement is ordered by the court.

As a blogger who frequently finds it necessary to criticize disciplinary processes in D.C. and elsewhere, I confess that I find this proposed sanction excessive given the absence of prior discipline and the conceded sincerity of the attorney's beliefs, even if unfounded.

Corruption in our courts does exist and attorneys have an obligation to speak out when it occurs.

In my view, that conduct should be, if not encouraged, at least allowed.

Once again, I applaud the District of Columbia Court of Appeals for declining to adopt Model Rule 8.2 (Mike Frisch)

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Comments

When and how can a reformer attorney speak inconvenient truth to power without being mangled in the process? The IARDC definition of what is “false or reckless statement” is: whatever embarrasses a member of the judiciary that can still be denied in someway; whatever exposes judicial wrongdoing that can still be denied in someway; or whatever makes the judiciary look bad.”

Posted by: 'Lanre O. Amu | Dec 10, 2014 11:22:03 PM

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