Filed September 22, 2006
In re Angela E. Peters
Commission No. 04 CH 127
Synopsis Of Review Board Report And Recommendation
The Administrator filed a one-count complaint against respondent, Angela E. Peters, alleging that during her representation of a client in a dissolution matter she improperly communicated with and caused her client to improperly communicate with a party represented by counsel without that counsel's prior consent; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; and engaged in conduct that is prejudicial to the administration of justice and that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. Peters denied most of the factual allegations in the complaint and denied all allegations of misconduct.
The Hearing Board found that the Administrator proved the charges against Peters with the exception of the charge of engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. It recommended that Peters receive a censure.
The matter came before the Review Board on Peters' exceptions. She argued that (1) the Hearing Board's findings that she improperly communicated with and caused her client to improperly communicate with a party represented by counsel are erroneous; (2) the Hearing Board's finding that her conduct prejudiced the administration of justice is erroneous; (3) the Hearing Board abused its discretion by striking certain testimony from two character witnesses; and (4) a reprimand is a more appropriate sanction than a censure.
The Administrator contended on review that she presented clear and convincing evidence that Peters engaged in dishonest conduct, and the Hearing Board's finding to the contrary was against the manifest weight of the evidence.
The Review Board determined that the facts as found by the Hearing Board do not support the determination that Peters herself improperly communicated with a person represented by counsel. Therefore, the Review Board reversed the Hearing Board's finding of misconduct as to that charge. The Review Board affirmed the finding that Peters caused her client to improperly communicate with a person represented by counsel, and that this conduct prejudiced the administration of justice and tended to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Review Board also affirmed the Hearing Board's finding that the Administrator did not prove by clear and convincing evidence that Peters engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. The Review Board determined that a reprimand is an appropriate sanction for Peters' misconduct.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANGELA E. PETERS,
Commission No. 04 CH 127
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellee filed a one-count complaint against Respondent-Appellant, Angela E. Peters, charging her with improperly communicating with, or causing her client to communicate with a person represented by counsel, in violation of Rule 4.2 of the Rules of Professional Conduct; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation by submitting an agreed order to the court without opposing counsel's agreement, in violation of Rule 8.4(a)(4); and engaging in conduct that was prejudicial to the administration of justice and that tended to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770.
Respondent denied that she engaged in any improper communications, entered an order without the agreement of opposing counsel, or committed any misconduct.
The Hearing Board determined that Respondent improperly communicated with her client's wife and improperly caused her client to communicate with his wife as well. The Hearing Board further found that Respondent's conduct prejudiced the administration of justice and tended to defeat the administration of justice or to bring the legal profession into disrepute.
The Hearing Board determined that the Administrator did not prove the charge of dishonest conduct.
Respondent filed exceptions to the Hearing Board's Report and Recommendation. On review, she contends that the Hearing Board's finding of misconduct is erroneous, the Hearing Board abused its discretion in striking certain testimony, and the recommended sanction is excessive.
The Administrator argues on review that the manifest weight of the evidence showed that, in addition to improperly communicating with her client's wife, Respondent also acted dishonestly by entering an agreed order without opposing counsel's agreement.
The evidence is set forth in detail in the Hearing Board Report and will be repeated herein only as necessary to clarify our Report.
Respondent received her law license in 1985 and practices primarily in the area of family law. In March 2002, she entered an appearance on behalf of David Fontanetta in the dissolution action filed by his former wife, Mary Eckerle (formerly Mary Fontanetta). Mary was represented by attorney Terry Mohr. The Fontanettas had two children and continued to live together during the dissolution proceedings.
The parties negotiated the terms of the marital settlement agreement for several months. They had not been able to agree on child support, child care expenses, maintenance, insurance coverage for Mary, and other property issues. Prior to the conduct at issue here, Mohr had prepared four draft settlements. On September 26, 2002, Mary received a letter from Mohr with a revised settlement agreement. The letter stated that the divorce could be finalized on October 7, 2002, the next court date. Respondent testified that the September 26 settlement agreement did not reflect all of the changes that she had previously discussed with Mohr.
On October 7, 2002, Mohr's associate, Carol Hill, represented Mary at a hearing on her petition for temporary relief. Hill was not familiar with Mary's case and had no authority to change the settlement agreement or to agree to an amount of child support that was less than the $242 per week reflected in the settlement agreement.
Mary and David both attended the October 7th hearing. Mary was under the impression that the divorce would be finalized that day and was anxious for it to be completed. Mary testified that she learned from Hill at the courthouse that David did not agree to the settlement terms, so the dissolution would not be concluded that day. Mary was upset to hear this.
Hill testified that Respondent asked to have a conference with both parties and both attorneys, but Hill had thirteen matters on the court call and could not meet until after her hearings. According to Hill, Respondent stated twice that she wanted a signed settlement agreement before she left the courthouse that morning. Hill told Mary and Respondent that they could wait for her to finish her hearings and she would then confer with them. Hill also told Respondent that she would not allow Mary to sign a settlement agreement that Mohr had not reviewed. Respondent asked Hill if she could talk to Mary while Hill attended her other hearings. Hill replied, "Absolutely not."
Mary testified that while Hill was occupied with her other hearings she sat on a bench in the hallway "a couple of steps away" from Respondent and David. Respondent testified that the bench where Mary sat was nineteen to twenty-six feet away from the bench where she sat with David. Mary testified that Respondent and David were discussing changes to the settlement agreement, and she could hear their conversation. She heard Respondent tell David that the dissolution would be over if the two of them initialed the changes to the agreement.
Mary further testified that she walked over to Respondent and David and asked why they were removing certain provisions from the agreement. Mary stated that Respondent made eye contact with her and then told David where each party would have to initial the agreement in order to finalize it. Respondent testified that Mary may have approached her and David, but she did not recall Mary directly asking her any questions. Respondent said that she might have looked at Mary to acknowledge her presence but did not use eye contact to communicate anything to her.
Respondent made handwritten changes to the settlement agreement and David initialed them. The two of them then went to the courthouse library and copied the agreement. Respondent knew that David was going to take a copy of the revised agreement to Mary and discuss it with her. Respondent was not present when they discussed the changes.
Mary testified that she wanted to discuss the changes with Hill, but she was still busy in the courtroom. Because she wanted the divorce to be over, she agreed to initial the revisions. When Hill learned what happened, she was upset because she thought that the changes were detrimental to Mary. They included increasing David's visitation, decreasing the amount of David's income and the amount of child support he had to pay, decreasing the amount of expenses David had to pay and the amount of life insurance he was required to maintain, and changing the dependency exemptions.
Also on October 7, Respondent submitted to the court a document purporting to be an agreed order, which provided that David would pay Mary $211 per week in temporary support and $50 per week in temporary maintenance and set the matter for prove-up on October 15, 2002. Mohr and Hill testified that they never agreed to the terms of the order, but did not move to vacate the order because it was only in effect for one week.
After trying unsuccessfully to convince Mary to revoke her approval of the settlement agreement, Mohr and his firm withdrew their representation of Mary because they believed the settlement agreement to be unconscionable.
Following the prove-up, the court approved the settlement agreement. Mary testified that she now believes that the settlement agreement was unfair. She has hired an attorney to try to change the provisions pertaining to visitation and payment of the children's expenses.
Respondent presented four judges and two attorneys as character witnesses. They testified that she has an excellent reputation for truthfulness and honesty. Respondent testified that she does a substantial amount of pro bono work, and is active in the Illinois State Bar Association, the North Suburban Bar Association, and other community and charitable organizations.
Respondent asserts that the Hearing Board erroneously found that she violated Rule 4.2 of the Rules of Professional Conduct. Rule 4.2 provides as follows:
During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.
The Administrator must prove the misconduct charges by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 168, 710, N.E.2d 390, 237 Ill. Dec. 760 (1999). On review, we defer to the Hearing Board's factual findings and will not reverse a finding unless it is against the manifest weight of the evidence. In re Smith, 168 Ill.2d 269, 283, 659 N.E.2d 896, 213 Ill. Dec. 550 (1996). A finding is against the manifest weight of the evidence if the opposite
conclusion is clearly evident. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961, 302 Ill.Dec. 397 (2006). We apply a de novo standard of review to the Hearing Board's legal conclusions, including whether the facts found by the Hearing Board and supported by the evidence constitute a violation of the Rules of Professional Conduct. In re Thomas, No. 00 CH 18 (Review Board, May 20, 2005), petition for leave to file exceptions allowed, No. M.R. 20289 (Sept. 26, 2005); citing In re Discipio, 163 Ill.2d 515, 527, 645 N.E.2d 906, 206 Ill.Dec. 654 (1991); In re Ushijima, 119 Ill.2d 51, 57, 518 N.E.2d 79, 115 Ill.Dec. 548 (1987).
The Hearing Board found that Respondent improperly communicated with Mary, and that she also caused David to communicate with Mary about the settlement. Respondent argues that she merely had a conversation with her client in a busy hallway and in no way communicated with Mary. Mary, on the other hand, testified that Respondent and David were discussing changes to the settlement agreement while "a couple of steps" away from her, Respondent made eye contact with her and then told David where the two of them would have to initial in order to finalize the agreement.
Respondent maintains that Mary is not a reliable witness, but her credibility is for the Hearing Board to determine. See In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560, 281 Ill.Dec. 595 (2004). That said, after reviewing the entire record we conclude that the facts found by the Hearing Board do not establish that Respondent's verbal remarks in the courthouse hallway constituted improper communication under Rule 4.2.
The Hearing Board found that Respondent knew that Mary was present in the hallway, she was eager to finalize the settlement, and Mary's attorney had prohibited her from speaking to Mary about the settlement. Respondent and Mary disagreed on how far apart they were at the time Respondent was talking to David. The Hearing Board found that they were in
the same general area in a "noisy and crowded hallway," and that Mary was able to overhear Respondent's comments, including her statement that the case would be over if she and David agreed to the revisions. The Hearing Board determined that this evidence was sufficient to establish that Respondent improperly communicated with Mary. We disagree.
We recognize that courts have found that "even the most minimal contacts with the represented party" may violate Rule 4.2. See Parker v. Pepsi-Cola General Bottlers, Inc., 249 F.Supp.2d 1006, 1009 (N.D. Ill. 2003). However, the absence of any direct, intentional contact between Respondent and Mary distinguishes this case from those the Hearing Board cited for the foregoing proposition. In Weibrecht v. S. Ill. Transfer, Inc., 241 F.3d 874, 883 (7th Cir. 2001), the court found that an attorney violated Rule 4.2 when he contacted an employee of the opposing party directly about rescheduling his deposition. In In re Matter of Howes, 123 N.M. 311, 940 P.2d 159 (1997), an Assistant United States Attorney received numerous telephone call from a defendant and listened and took notes instead of terminating the conversations. The Supreme Court of New Mexico held that, even though the attorney did not ask questions of the defendant, the attorney's behavior encouraged the defendant to continue making statements against his own interest without the knowledge or advice of his attorney.
The connection between Respondent and Mary in the instant case is more attenuated than that in Howes. Indeed, the parties have not cited and our research has not revealed a case in which an attorney was found to have committed misconduct for having a conversation with her own client that was overheard by the opposing party. We believe that interpreting "communication" to include the circumstances cited above would unduly expand the scope of Rule 4.2. Further, it would create an unreasonable burden on attorneys by requiring them to either forego discussing matters with their clients pertaining to the representation while
in the "general area" of opposing parties whose counsel are absent, or guess whether they are far enough away from the opposing parties to avoid being overheard. Accordingly, for the foregoing reasons, we reverse the Hearing Board's determination that Respondent violated Rule 4.2 by engaging in a conversation with her client that was overheard by Mary.
We do, however, agree with the Hearing Board that Respondent violated Rule 4.2 when she prepared the revised settlement agreement and gave it to David with the knowledge that he was going to deliver it to Mary.
We recognize that the legislature encourages the settlement of dissolution matters. See 750 ILCS 5/502(a) (West 1998). Attorneys must do so, however, within the boundaries of the Rules of Professional Conduct. Respondent was required to deliver the revised settlement agreement to Mary's attorney. In bypassing Mary's attorneys and using David to deliver the revised agreement to Mary directly, Respondent violated Rule 4.2.
Citing the court's approval of the settlement agreement, Respondent also contends that there was no evidence of actual prejudice to the administration of justice. Respondent correctly notes that the Administrator must present clear and convincing evidence of actual prejudice to the administration of justice in order to prove a violation of Rule 8.4(a)(5). See In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840, 148 Ill.Dec. 243 (1990). However, we are not persuaded by Respondent's reasoning. The court's approval of the settlement agreement does not preclude a finding that Respondent's conduct caused prejudice to the administration of justice. The evidence established that Respondent interfered with the relationship between Mary and her attorneys. Because of Respondent's conduct, Mary was deprived of the benefit of her counsel's advice before agreeing to the changes in the settlement agreement, and Mary's attorneys were deprived of the opportunity to protect Mary's interests and negotiate on her
behalf. Justice is not served under these circumstances. Accordingly, we affirm the Hearing Board's finding that Respondent violated Rule 8.4(a)(5) and Supreme Court Rule 770.
Respondent further asserts that the Hearing Board erroneously struck the testimony of two of her character witnesses. We review the Hearing Board's rulings on the admission of evidence for an abuse of discretion. In re Ettinger, 128 Ill.2d 351, 365-66, 538 N.E.2d 1152 (1989).
Respondent presented Judges Veronica B. Mathein and Jeanne Cleveland Bernstein as character witnesses. During the Administrator's cross-examination of these witnesses, each was asked whether her opinion of Respondent would change if the Administrator proved that she caused David to speak with Mary without the consent of Mary's counsel. Judge Mathein responded that her opinion of Respondent would not change "because I think there's an innate conflict between the statute and what you're trying to prove." Judge Cleveland Bernstein answered that she was conflicted because the Illinois Marriage and Dissolution of Marriage Act (the Act) encourages parties to settle.
The Hearing Board determined that the portions of the testimony of Judges Mathein and Cleveland Bernstein about the Act and Rule 4.2 constituted unsolicited opinion evidence. Respondent disagrees, arguing that neither witness gave an opinion on the ultimate issues in the case.
The Hearing Board did not abuse its discretion in striking the testimony. The witnesses were not asked to give their interpretation of Rule 4.2 or Section 502(a) of the Act. Moreover, their testimony implied that, in their view, Respondent's conduct does not merit discipline because of a perceived conflict with the Act. While a respondent may present evidence concerning his or her character or reputation (ARDC Rule 273), the supreme court has made it
clear that expert witnesses may not testify as to whether an attorney has violated the Rules of Professional Conduct. See In re Chatz, 131 Ill.2d 499, 509, 546 N.E.2d 613 (1989). If such testimony is inappropriate for an expert witness, it is inappropriate for a character witness. Furthermore, we fail to see how Respondent suffered any adverse effect from the stricken testimony. The Chair of the Hearing Panel did not strike the witnesses' favorable testimony about Respondent's reputation and, as we have already stated, nothing in the Act would excuse Respondent from complying with Rule 4.2.
Next, the Administrator argues that she successfully proved that Respondent engaged in dishonest conduct by submitting an agreed order to which opposing counsel had not agreed. On October 7, Respondent submitted an agreed order to the court providing that David would pay temporary child support in the amount of $211 and temporary maintenance of $50, and that the parties would appear for a prove-up hearing the following week. Respondent testified that Hill had agreed to the terms of the order before it was entered. Hill and Mohr testified that neither of them consented to the amount of temporary support. After considering the conflicting testimony, the lack of prejudice to Mary, and the lack of any objection to the order by Hill or Mohr, the Hearing Board concluded that the Administrator had not proven the dishonest conduct charge by clear and convincing evidence.
In order to find that Respondent acted dishonestly, the Hearing Board would have to have found that Respondent's testimony about the agreed order was not credible. The Hearing Board did not do so, and we will not substitute our judgment for that of the Hearing Board on questions of credibility. Given the conflicting testimony and our deference to the Hearing Board, we cannot say that the Hearing Board's finding was against the manifest weight of the evidence.
The Hearing Board recommended that Respondent receive a censure for her misconduct. Respondent argues that no discipline is warranted or, alternatively, she should receive no more than a reprimand.
The Hearing Board's sanction recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900, 53 Ill. Dec. 231 (1981). When determining our recommended sanction, we consider the severity of the misconduct, any aggravating and mitigating circumstances, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). We also recognize that the purpose of the disciplinary system is not to punish attorneys but to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice from reproach. In re Spak, 188 Ill. 2d 53, 67, 719 N.E.2d 747, 755 (1999).
Having reversed one of the bases for the Hearing Board's findings of misconduct and considering that the remaining findings of misconduct consist of delivering a settlement document directly to the opposing party and the derivative violations of Rule 8.4(a)(5) and Supreme Court Rule 770, we conclude that a reprimand is an appropriate sanction. Typically, cases that are limited to improper service of documents directly upon an opposing party result in reprimands. See In re Ditkowsky, 89 CH 389 (Hearing Board May 17, 1990); In re Berger, 90 CH 236 (Review Board, October 8, 1993); In re Kyles, 97 CH 43 (Dec. 11, 1997). We see no reason to upwardly depart from the usual sanction in this case.
The Hearing Board found Respondent's decision to ignore the directive of Mary's attorney to refrain from communicating with Mary to be a significant factor in aggravation.
While we agree with the Hearing Board that this is an aggravating factor, we believe that the substantial mitigating circumstances outweigh this one factor. Respondent has no prior discipline, cooperated in the disciplinary proceedings, and has served her community and her profession through her participation in various organizations. She has a good reputation among her peers. While we do not minimize her misconduct, this appears to be an isolated incident in an otherwise respectable legal career.
We affirm the Hearing Board's factual findings and evidentiary rulings. We affirm in part and reverse in part its findings of misconduct. We recommend that Respondent, Angela E. Peters, receive a reprimand. A proposed reprimand accompanies this report. If neither party files exceptions to this report and recommendation, the accompanying reprimand shall be administered by the Review Board, at a date and time to be set by future order.
Date Entered: September 22, 2006
Bruce J. Meachum
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANGELA E. PETERS,
Commission No. 04 CH 127
Pursuant to notice given to Respondent and the Administrator, we hereby deliver to you, Angela E. Peters, the following reprimand:
The Administrator charged that, by your conduct, you improperly communicated with and caused your client to communicate with a person represented by counsel, without that counsel's prior consent, in violation of Rule of Professional Conduct 4.2; that you submitted an agreed order to the court without opposing counsel's agreement, thereby engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); and that your conduct prejudiced the administration of justice and tended to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770 and Rule 8.4(a)(5).
The Hearing Board found that you violated Rule 4.2 by communicating with your client's wife without her attorney's consent and by causing your client to communicate with his wife without her attorney's consent. The Hearing Board further found that your misconduct prejudiced the administration of justice and tended to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
We have affirmed in part and reversed in part the Hearing Board's findings of misconduct. We have modified the Hearing Board's recommended sanction. The reasons for our decision are more fully stated in our report and recommendation.
Your misconduct was aggravated by your decision to disregard the directive of opposing counsel to refrain from communicating with your client's wife in opposing counsel's absence.
In mitigation of your conduct, you presented favorable character evidence, including testimony from four judges and two attorneys that you are held in high regard by your peers for your truthfulness and honesty. You also presented evidence that you perform a significant amount of pro bono work. You are active in bar associations and community and charitable organizations. This is the first matter for which you have been disciplined.
A reprimand is a form of discipline under the Rules of the ARDC and the Supreme Court Rules and is a matter of public record. If you are ever found to have engaged in professional misconduct in the future, the fact that you have been reprimanded may be considered as prior discipline.
You are hereby reprimanded and admonished to avoid future misconduct.
Bruce J. Meachum