Sunday, January 9, 2022

Emails Draw Proposed Suspension With Fitness

An Illinois Hearing Board has recommended a three-year suspension with fitness for an attorney's emails in three matters.

In a matter where the attorney was a pro se plaintiff, his conduct with opposing counsel at Barnes & Thornburg and the firm's deputy general counsel was the subject of charges

The Administrator further proved that Respondent’s emails to Schmeltz and Badger had no substantial purpose other than to embarrass or burden them. Violations of Rule 4.4(a) have been found when a lawyer, in the course of representing a client, used vulgar, offensive, or intimidating language. See In re Moore, 2015PR00076, M.R. 028896 (Sept. 22, 2017) (Hearing Bd. at 12). Respondent’s language calling Schmeltz “Schmaltz” and “Schmuchs,” referring to Schmeltz and Badger as “disgusting,” “despicable,” “scum,” “idiot,” “perp,” and “active criminal,” and threatening to end Schmeltz’s career and “flay him on a public pillory” were objectively offensive and threatening. Moreover, this language did, in fact, cause Schmeltz and Badger to feel embarrassed, harassed, and concerned.

Conduct prejudicial

Here, there was ample evidence of actual prejudice to the administration of justice. Schmeltz had to spend time addressing Respondent’s improper threats rather than addressing the substance of the Schwab case. The same was true for Badger, who was not an attorney of record and had no involvement in litigating the Schwab case. The Executive Committee had to devote time and resources to addressing Respondent’s conduct as well. Based on this evidence, we find the Administrator proved by clear and convincing evidence that Respondent’s conduct prejudiced the administration of justice.

The same rules were violated in another pro se matter defended by an associate at Fox Rothschild

Respondent’s profanity and references to Sanfelippo as a “liar,” “Sanscamfelippo” and “Sanliarippo” had no legitimate purpose. Similarly, violent imagery such as describing people as “targets,” referring to a “legal rope tightening around your neck,” and threatening to “rip y’all a new one” has no place in the practice of law and was clearly intended to intimidate the recipients. Regardless of whether the language arose in the context of litigating or settling the Cubesmart matter, it had no substantial purpose other than to burden the recipients. Sanfelippo and Widman credibly testified that Respondent’s language caused them to feel harassed and to fear for their safety. It is also clear that Respondent’s primary purpose in contacting [firm managing partner] Mark Morris was to retaliate against Sanfelippo after Judge Dow chastised Respondent. Respondent had no valid reason to contact Morris, who had no responsibility for the Cubesmart matter and practices in Pennsylvania. For all of these reasons, we find the Administrator proved by clear and convincing evidence that Respondent violated Rule 4.4(a).

The hearing board concludes that the Rules apply to an attorney acting pro se

Respondent contends there is a “split in authority” as to whether Rule 4.4(a) applies to lawyers who represent themselves in a lawsuit. He relies on a portion of the Executive Committee Order entered on October 8, 2019, which agreed with Respondent that ABA Model Rule 4.4(a) did not apply to him in the Schwab and Cubesmart matters because he was acting pro se. While we have taken note of the Executive Committee’s Order, the Illinois Supreme Court is the ultimate authority in ARDC disciplinary matters, and its interpretation of the Illinois Rules of Professional Conduct is controlling.

...we follow the Court’s opinion in Segall and the Hearing and Review Boards’ subsequent application of Segall in concluding that Rule 4.4(a) applied to Respondent’s conduct at all times at issue in this matter, regardless of whether Respondent was representing only himself or was representing another person.

He represented a client in a matter where opposing counsel was a chief deputy corporation counsel dealing with his subpoena to Rahm Emmanuel

We further find that the emails had no substantial purpose other than to burden and harass Ritter. They were harassing both in their quantity and their language. We found credible Ritter’s testimony that she was making efforts to provide the documents Respondent requested. There was no reason, therefore, for Respondent to send multiple emails per day other than to harass and burden Ritter. There was also no legimitate [sic] purpose in telling Ritter she should resign and had violated her professional duties or to threaten further action against Ritter. We further find that Respondent’s emails informing Ritter of his FOIA requests for her communications were sent for the purpose of harassment. While Respondent has the right to submit FOIA requests, the fact that he sought information completely unrelated to the Singer matter demonstrates that his intention was to try to intimidate and embarrass Ritter. Accordingly, we find the Administrator proved by clear and convincing evidence that Respondent violated Rule 4.4(a) as alleged in Count III.

At the discipline hearing

The recipients of Respondent’s emails described them as “mortifying,” “disconcerting,” “frustrating,” and “threatening.” (Tr. 79). Vincent Schmeltz testified that Respondent called his 80-year-old father in March of 2021 and attempted to obtain Schmeltz’s address. (Tr. 115). During this disciplinary hearing, Respondent expressed his view that the intent of the hearing was to “get a predetermined result” and deny him due process. Respondent threatened to sue Vincent Schmeltz while Schmeltz was testifying. (Tr. 163). Respondent issued several “warnings” when he did not like certain testimony, lines of questioning or rulings. When the Chair advised him against issuing warnings, Respondent stated it was his right to do so. 

Respondent has no prior discipline.

Sanction

based on our observations of Respondent and his behavior in this proceeding, we have no choice but to conclude that he presents a significant risk of committing further misconduct that would harm other lawyers, the reputation of the legal profession, and the administration of justice. For this reason, in conjunction with the extensive misconduct, significant aggravation, and minimal mitigation, we recommend that Respondent be suspended for three years and until further order of the Court. We strongly believe Respondent should be required to demonstrate that he is able to conduct himself in a professional and ethical manner before he may resume practice.


The emails at issue are quoted in the report. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/01/an-illinois-hearing-board-has-recommended-in-a-matter-where-the-attorney-was-a-pro-se-plaintiff-his-conduct-with-opposing-c.html

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