Wednesday, October 14, 2020

The Standards Have Not Changed

The Illinois Review Board proposes a three-month suspension for abusive behavior in a deposition

During a deposition in an insurance matter in which he represented the plaintiff, and his opposing counsel, Keely Hillison, represented one of the defendant insurance companies, Respondent grew angry with Hillison's questioning of his client. When Hillison asked to certify a question that Respondent had instructed his client not to answer, Respondent told her to "certify your own stupidity." Hillison responded that she would not sit there and take insults from Respondent, to which Respondent replied that "a man who insults on a daily basis everybody he does business with has now been elected President of the United States. The standards have changed. I'll say what I want." (Hearing Bd. Report at 3-4.)

A short time later, Hillison asked a question of Respondent's client, and Respondent said, "Don't waste your breath." He then objected and told his client not to answer. When Hillison asked to certify the question, Respondent stated: "Motion for sanctions; indicate that on the record. I'm going to get sanctions against your firm like you wouldn't believe, bitch." (Id. at 4.)

Hillison filed a motion to compel Respondent's client to answer the questions he declined to answer at the deposition. In the motion to compel, she briefly mentioned Respondent's comments to her. At a hearing on the motion, the judge, Hon. Franklin U. Valderrama, admonished Respondent for his behavior toward Hillison and allowed him to file a response to the motion to compel.

In the response to the motion to compel, Respondent included many statements about Judge Valderrama's conduct and demeanor at the hearing. He stated that he would have apologized to Hillison at the hearing but that "the court, in its anger, refused to let [Respondent] speak . . . ." He described Judge Valderrama as being "in a rage," and stated that the judge "flew into a rage of his own at this counsel for what was said in the deposition." He stated that, "in light of recent events, and most particularly the ?robe rage incident'" at the hearing, it was unclear whether his client would now suffer because of the "anger this court holds against his counsel." He continued by saying that Judge Valderrama "saw an angry situation develop and reacted in anger. It is always preferable if a judge is able to put out fires rather than pour oil on the flames." He stated that the "temper" that was displayed by Judge Valderrama "calls into question the impartiality of the tribunal." He said that he was sorry if Judge Valderrama considered his words to be a personal attack, but that he felt it "necessary to protect [his] client from the judicial anger that clearly occurred" at the hearing. (Hearing Bd. Report at 9.)

As to sanction

Respondent contends that he should receive nothing more than a reprimand. He contends that he said only two objectionable things - the words "stupidity" and "bitch" - at the deposition, and that he has fully acknowledged that those two interruptions were wrongful. He contends that the actions of the respondents in the cases relied upon by the Hearing Board were significantly more egregious than his conduct. In contrast, he cites cases in which the respondents used highly offensive words against opposing counsel and were reprimanded or censured. See In re Cwik, 89 CH 690 (Review Bd., March 9, 1993) (reprimand of attorney who wrote a letter to opposing counsel containing highly offensive personal remarks, which he intended as a joke; when she did not see them as a joke, he wrote letter of apology to her and her law firm); In re Gerstein, 91 SH 354, petition to impose discipline on consent allowed, M.R. 7626 (Sept. 26, 1991) (censure of attorney who wrote and sent a letter that contained obscene, offensive, and vulgar language to female opposing counsel; mitigation included that he had sent her a letter of apology; aggravation included that attorney had been previously reprimanded for engaging in similar conduct). Respondent argues that comparing the offensive language that he used with the offensive language used in CwikGerstein, and the cases cited by the Hearing Board makes clear that, at the most, he should receive a reprimand.

Precedent

The foregoing cases involve misconduct that is either similar to or more egregious than Respondent's, with similar or more egregious aggravating factors. We thus see no compelling reason to depart from the Hearing Board's recommendation of a three-month suspension, which is fully supported by authority.

In fact, to Respondent's point, these cases arguably could support a suspension of less than three months. However, as the Hearing Board expressly and properly took into account, Respondent's conduct at his hearing raises concerns about his ability or willingness "to conduct himself in a professional and ethical manner when faced with stressful or adversarial circumstances." (Hearing Bd. Report at 14.) That aggravating factor convinces us that a three-month suspension is warranted.

Accordingly, we recommend that Respondent be suspended for three months. We find this sanction to be commensurate with Respondent's misconduct, consistent with discipline that has been imposed for comparable misconduct, and sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct.

We also agree with the Hearing Board that Respondent would benefit from a review of his professional responsibilities, and therefore recommend that he be required to complete the ARDC Professionalism seminar before being reinstated to law practice.

The attorney has been in practice since 1983. (Mike Frisch)

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