Filed January 31, 2007
In re Dean Mauro
Commission No. 06 CH 18
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) threatening to present criminal charges to obtain advantage in a civil matter; 2) asserting a position or taking other action on behalf of a client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another; 3) making a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false; 4) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 5) engaging in conduct that is prejudicial to the administration of justice; and 6) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 1.2(e), 1.2(f)(1), 4.1(a), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: One-year suspension and until further order of Court.
DATE OF OPINION: January 31, 2007.
HEARING PANEL: Lon M. Richey, Leonard J. Schrager and Kenneth A. Peters.
ADMINISTRATOR'S COUNSEL: Gina Abbatemarco.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
Commission No. 06 CH 18
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 20, 2006, at the Chicago offices of the Attorney Registration and Disciplinary Commission, before a Hearing Board Panel consisting of Lon M. Richey, Chair, Leonard J. Schrager, lawyer member, and Kenneth A. Peters, public member. Gina Abbatemarco represented the Administrator. Respondent did not appear and was not represented by counsel.
On April 10, 2006, the Administrator filed a one-count complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged that Respondent threatened to present criminal charges to obtain advantage in a civil matter, asserted a position on behalf of a client when he knew that such action would serve merely to harass another and made a statement of material fact to a third person, which he knew was false. On May 5, 2006, Respondent filed an Answer to the Complaint in which he admitted many factual allegations, denied some of the factual allegations, and denied all allegations of misconduct.
The Administrator presented the testimony of Kenneth Hirschey and John H. Lombardi. The Administrator submitted three documentary exhibits.
On October 19, 2002, Tyna Robertson ("Robertson") traveled from Los Angeles to Las Vegas to spend the weekend with well-known dancer, Michael Flatley ("Flatley"). While in Las Vegas, Robertson stayed overnight in Flatley's hotel suite at the Venetian Hotel. In November 2002, Respondent agreed to represent Robertson regarding her claims that Flatley had sexually assaulted her during her October visit to Las Vegas. Respondent and Robertson agreed that Respondent's receipt of a fee would be contingent upon his recovering a settlement or award on behalf of Robertson, and that Respondent would receive 1/3 of the recovery if the matter settled and 40% of the recovery if suit was filed or the matter was appealed. (R. Ans. Par. 1 & 2).
On November 14, 2002, Robertson telephoned the Las Vegas police department to report that Flatley had sexually assaulted her during her stay in his hotel suite on October 19, 2002. On November 17, 2002, Robertson sent a letter to the Sex-Crimes division of the Las Vegas police department, in which she provided additional information surrounding the alleged rape. (R. Ans. Par. 3 & 4).
On January 2, 2003, Respondent sent a letter by facsimile to Flatley's registered address in Carson City, Nevada. In that letter, Respondent stated that he would file a civil lawsuit against Flatley, seeking $30,000,000 in damages, and would disseminate information about the alleged rape to the worldwide press, unless Flatley agreed to settle the matter.
On page two of that letter, Respondent stated in part:
"Please be further advised that we have retained several forensic expert witnesses who, in additional (sic) to our client's treating medical personnel, have already completed thorough investigations and shall be testifying on our behalf."
And on page three, he stated in part:
"Our Forensic Criminologist, Dr. John Lombardi, along with our expert Human Resource Consultant, Dr. David K. Hirshey, conclude that all Defendants failed to adequately provide requisite safeguards for our client, and that there existed reason to know, prior to this assault, of a propensity and likelihood of such criminal behavior." (emphasis in the original)
(Adm. Ex. 1).
John Lombardi is a criminologist. Mr. Lombardi testified that Respondent never retained him as an expert witness in Robertson's case. Mr. Lombardi testified that the above statement is neither accurate nor true. Mr. Lombardi did not investigate the case outside of the conversations he had with Respondent. Mr. Lombardi never received any paperwork regarding Robertson from Respondent. Mr. Lombardi never agreed to testify in the matter. (Tr. 32-35).
Kenneth David Hirschey is an independent human resources strategic planning and business consultant. Mr. Hirschey testified that he worked with Respondent on a previous case. Respondent contacted Mr. Hirschey regarding the Robertson matter. Mr. Hirschey spoke briefly with Respondent regarding the case. Mr. Hirschey stated that he never signed any written agreement with Respondent regarding his services. Respondent never retained Mr. Hirschey for his services. Mr. Hirschey did not review any documents in the Robertson matter nor did he give any type of opinion in connection with the Robertson matter. (Tr. 12-13, 16-18).
Regarding the statements made in Respondent's January 2, 2003 letter, Mr. Hirschey denies making any conclusions in the Robertson matter. Further, Mr. Hirschey did not complete any thorough investigations in connection with the Robertson matter. Mr. Hirschey never agreed to testify in the Robertson matter. (Adm. Ex. 1; Tr. 19-20).
In his letter, Respondent said that he would report to the appropriate authorities and the media any violations of law that would become apparent during discovery. He also referenced the alleged rape by including the police report number from Robertson's report of the alleged
rape and attaching to his letter, Robertson's November 17, 2002 letter to the Sex-Crimes division.
On page three, he stated in part:
"Any and all information, including immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they findů."
"Once again, please remember all pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S., S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall be immediately turned over to any and all appropriate authorities." (emphasis in the original).
(Adm. Ex. 1).
Respondent further claimed on page three of his letter, that he would pursue additional causes of action and seek punitive damages against Flatley if his settlement demands were not met. He stated in part:
"Once suit is filed, we anticipate that other causes of action shall arise. Defamatory comments, Civil Conspiracy, Reckless Supervision are just the beginning, and we already have ample evidence to prove each and every element for these additional causes of action. Again, these actions allow for Punitive Damages." (emphasis in the original).
(Adm. Ex. 1).
At the time he wrote the letter, Respondent had no evidence to support any causes of action for defamation, civil conspiracy or reckless supervision. In February 2003, Flatley's attorney declined Respondent's settlement offer on behalf of Flatley. On March 4, 2003, Respondent filed a lawsuit on behalf of Robertson against Flatley in Lake County, Illinois, requesting $30,000,000 in damages. The matter was docketed as Jane Doe v. Michael Flatley, et al. (R. Ans. Par. 11 & 12).
On March 6, 2003, Flatley filed a lawsuit against Respondent and Robertson in Los Angeles, California, claiming that Respondent's and Robertson's actions in sending the January
3, 2003 letter constituted civil extortion, defamation, fraud, intentional infliction of emotional distress and wrongful interference with prospective economic advantage. Flatley's lawsuit sought $100,000,000 in damages. On September 16, 2003, Respondent voluntarily dismissed the Jane Doe v. Michael Flatley, et al. case on behalf of Robertson. (Adm. Ex. 2; R. Ans. Par. 13 & 14).
Evidence Offered in Mitigation and Aggravation
Respondent has not been previously disciplined. Respondent failed to appear and participate in the disciplinary hearing.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 308 (1993). With the above principles in mind and after careful consideration of the testimony and exhibits, we make the following findings:
In the Complaint, Respondent is charged with:
threatening to present criminal charges to obtain advantage in a civil matter in violation of Rule 1.2(e) of the Illinois Rules of Professional Conduct;
asserting a position or taking other action on behalf of a client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct;
making a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false in violation of Rule 4.1(a) of the Illinois Rules of Professional Conduct;
engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and
engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.
Upon review of the allegations, documentary evidence and the testimony of Kenneth Hirschey and John Lombardi, we find that the Administrator has met her burden of proof by clear and convincing evidence. Therefore, we find that Respondent is guilty of all misconduct alleged in the Complaint.
First, Respondent violated 1.2(e) and 1.2(f)(1) of the Illinois Rules of Professional Conduct when he sent the January 2, 2003 letter to Flatley. In that letter, Respondent threatens to expose all of Flatley's financial and immigration information to the media. We find that these statements only serve to harass Flatley and attempt to force Flatley to settle Robertson's lawsuit.
Second, Respondent violated 4.1(a) of the Illinois Rules of Professional Conduct. In the January 2, 2003 letter, Respondent falsely states that he has retained several forensic expert witnesses who had completed thorough investigations and would testify on his behalf. In addition, Respondent falsely stated that John Lombardi and David Hirschey made conclusions about the defendants in the Robertson matter. Both Mr. Lombardi and Mr. Hirschey testified that Respondent never retained them. They never received documentation about Robertson's case. They never completed an investigation of the case nor did they offer an opinion regarding the case. Therefore, we find Respondent made false statements to Flatley in the January 2, 2003 letter, which he knew were false.
Finally, we find that above stated misconduct was dishonest, fraudulent and deceitful in violation of 8.4(a)(4) of the Illinois Rules of Professional Conduct. Respondent made both threatening and false statements to Flatley purely for the benefit of his case and the benefit of his client. Further, we find that Respondent engaged in conduct that is prejudicial to the administration of justice and brings the legal profession into disrepute in violation of 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434, 721 N.E.2d 1126 (1999). We should not recommend a sanction, which will benefit neither the public nor the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991).
The Administrator recommends a five-month to one-year suspension and until further order of the Court. In support of this recommendation, the Administrator relies on cases of similar factual findings where the Supreme Court ordered sanctions ranging from five-month to one-year suspension. While every case is unique, we find the following cases instructive in determining the proper recommendation for a sanction:
The respondent in In re Schaaf, Jr., 99 SH 64, M.R. 17387 (March 23, 2001) sent a client a letter threatening criminal charges if the client failed to pay outstanding attorney's fees. There, the respondent became a state's attorney while a former client owed unpaid legal fees. In the letter, the respondent falsely stated that he filed a criminal complaint against his former client, falsely stated that he was prosecuting the complaint himself and falsely stated that the sheriff was
holding a warrant for the client's arrest. In mitigation, the Hearing Board found that the respondent had no prior discipline, no dishonest motive and offered character witness testimony. The Review Board recommended that the respondent be suspended from the practice of law for one year with the last seven months stayed by probation. The Supreme Court approved the Review Board's recommendation.
The respondent in In re Barry, 00 SH 54, M.R.18782 (September 19, 2003), was charged with filing false affidavits, making false statements in a civil complaint and making false statements in pleadings and a demand letter. There, the respondent directed a letter containing false statements, to an insurance company, in an effort to induce a settlement. The Hearing Board dismissed two of the four counts filed against the respondent. The Supreme Court approved the Hearing Board's recommendation of a nine-month suspension from the practice of law.
In In re Masters, 98 CH 60, M.R. 17674 (March 8, 2002), the respondent was found guilty of making false statements in a pleading regarding expert testimony and presented false evidence. In addition, the respondent made a false statement in a letter to his client's landlord regarding his client's financial status. There, the respondent offered significant mitigating evidence. However, the respondent had been previously disciplined. The Hearing Board recommended that the respondent be suspended from the practice of law for one year. The Supreme Court approved the recommendation.
Based on our findings of misconduct and the relevant caselaw, we find that a one-year suspension is the appropriate sanction. Further, Respondent's failure to participate in the disciplinary proceedings shows an unwillingness to adhere to the professional standards of the legal profession. We note that in cases where the attorney failed to participate in his hearing, the
suspension was continued until further order of Court. That condition is appropriate where the attorney has demonstrated a disregard for disciplinary proceedings and is unwilling or unable to meet professional standards of conduct. See In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986); In re Levinson, 71 Ill.2d 486, 376 N.E.2d 998 (1978). Based on Respondent's failure to cooperate in the present case, we conclude that the condition should be a part of our recommendation. Therefore, we recommend that Respondent be suspended from the practice of law for one year and until further order of court.
Date Entered: January 31, 2007
|Lon M. Richey, Chair, with Leonard J. Schrager concurring and Kenneth Peters concurring in part.|
Kenneth Peters, dissenting in part:
I agree with the findings of fact and conclusions of law of the Hearing Board majority. However, I respectfully disagree with the majority's recommendation of sanction. I find that Respondent's misconduct is so egregious that disbarment is warranted. In order to safeguard the public, Respondent should not be allowed to practice law in Illinois.