Filed April 17, 2008
In re Anna Marie Wolf
Commission No. 07 CH 49
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 2) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 8.4(a)(4) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: Complaint dismissed.
DATE OF OPINION: April 17, 2008.
HEARING PANEL: John B. Whiton, Chair, Larry R. Kane and William E. Gabbard.
RESPONDENT'S COUNSEL: Thomas P. McGarry and Renee O'Neill Kelly.
ADMINISTRATOR'S COUNSEL: Meriel Coleman.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANNA MARIE WOLF,
Commission No. 07 CH 49
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on January 24, 2008, at the Chicago offices of the Attorney Registration and Disciplinary Commission, before a Hearing Board Panel consisting of John B. Whiton, Chair, Larry R. Kane, lawyer member, and William E. Gabbard, public member. The Administrator was represented by Meriel Coleman. Respondent appeared in person and was represented by Thomas P. McGarry and Renee O'Neill Kelly.
On June 5, 2007, the Administrator filed a one-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). Count I alleges that Respondent made false statements in a grant application. On June 29, 2007, Respondent filed an Answer to Complaint in which Respondent admitted some factual allegations and denied some factual allegations. Respondent denied all allegations of misconduct.
The Administrator presented the testimony of Respondent. The Administrator submitted five documentary exhibits. Respondent testified on her own behalf and submitted twenty-two documentary exhibits.
On January 3, 2006, Respondent became the Chief Legal Officer of the Pro Bono Center for Disability and Elder Law ("CDEL"). Jann Dragovich-Stulberg ("Stulberg"), the Executive Director of SDEL, informed Respondent in January 2007 that Respondent would also undertake the responsibilities of the "grant manager" for CDEL. Respondent's duties as Chief Legal Officer included being responsible for managing the law center's daily case reports, supervising pro bono coordinators, serving as the point person for volunteer attorneys, and handling outreach training seminars for attorneys and paralegals. Upon accepting the additional duties as grant manager, Stulberg informed Respondent that she was responsible for charting the due dates of all grant applications for which CDEL would be applying and to notify Stulberg of the due dates. (Resp. Ex. 16; Resp. Ans. p.1,2).
One week before the Chicago Bar Foundation grant application was due, Stulberg directed Respondent to prepare the case and client data form, which lists the number of cases handled by CDEL on various legal issues and by levels of service. On January 9, 2007, Respondent prepared the case and client data form. Respondent understood that she was preparing the case and client data form for Stulberg's review and, if approved by Stulberg, the form would be submitted as part of CDEL's grant proposal to the Chicago Bar Foundation and the Lawyer's Trust Fund (IOLTA). Respondent had no prior grant experience nor did she receive any specific instruction or training on how to prepare a grant proposal or what criteria
should be utilized in preparing the case and client data form. Respondent printed out numerous documents regarding the clients and cases that were opened from January 1, 2006 through December 31, 2006 from CDEL's database. Since there was no single report or source which provided all of the client and case information, Respondent compiled many documents, which included the case management reports. Respondent also went through the documents by hand and counted up all the cases opened between January 1, 2006 and December 31, 2006. From these documents, Respondent estimated that approximately 1,734 cases had been opened in the fiscal year 2006. (Resp. Ex. 2,3,5,6; Resp. Ans. p. 2, 3).
Respondent reviewed the case and client data form submitted by CDEL for fiscal year 2005 and observed that Stulberg reported the total cases to be 3,717 in 2005. Respondent compared the 2006 estimates she had determined based on the information available to her to the 2005 submission. Respondent immediately brought the discrepancy to Stulberg. Stulberg advised Respondent that CDEL could not show numbers that low for 2006. Stulberg told Respondent that CDEL had always been under a microscope in the legal aid community and that this year CDEL would be under an even bigger microscope. Stulberg suggested that the total cases under levels of service numbers associated with the grant proposals were not reliable or material to the grantor's consideration. (Resp. Ex. 2,17; Resp. Ans. p. 3,4).
On January 11, 2007, Respondent prepared the case and client data form which reflected that the total cases for levels of service was 3,241 for the 2006 fiscal year. Respondent presented the case and client data form to Stulberg, who reviewed the numbers and signed the grant proposals. Based upon the information available to Respondent, she believed that CDEL did not service 3,241 clients in 2006 and believed at the time that her representation of total cases was inaccurate. Although Respondent was not advised as to what criteria should be used for
determining the figure for total cases, using the criteria, information, and means available to her, Respondent estimated that approximately 1,734 new cases were opened by CDEL between January 1, 2006 and December 31, 2006. (Resp. Ex. 2; Resp. Ans. p. 4).
On January 16, 1007, CDEL submitted a grant proposal to the Chicago Bar Foundation and on February 16, 2007, CDEL submitted a grant proposal to IOLTA. Respondent admits that both grant proposals included the same case and client data form that Respondent had prepared and submitted to Stulberg for approval. Stulberg approved and signed both proposals. (Resp. Ex. 1,4; Resp. Ans. p. 5).
Respondent was admitted to the Illinois Bar in November 2000. Upon admission, Respondent started working at a general practice law firm. Respondent's practice concentrated in personal injury, family law and real estate law. On January 3, 2006, Respondent began working for CDEL. Respondent was offered a position at CDEL from a close family friend, Jann Stulberg, ("Stulberg"), the Executive Director. Respondent accepted the position of Chief Legal Officer. Respondent stated that her duties included case management, supervising pro bono coordinators and communicating with volunteer attorneys. Respondent was also the on-staff emergency attorney for any client cases. Stulberg was Respondent's direct supervisor. Respondent held the position of Chief Legal Officer for one year before receiving the additional title of grant manager. As grant manager, Respondent reviewed all the grants that CDEL had applied for in previous years, marked down the due dates for the upcoming year, charted them in a calendar form and then e-mailed Stulberg notification approximately two weeks prior to the grants being due so that Stulberg could work on them. (Tr. 35-39).
Respondent stated that CDEL did not receive all its funding from grants. CDEL also received funding through private donations, fundraising and contracts with the City of Chicago Department on Aging. In January 2007, Respondent learned that the first grant application due was for the Chicago Bar Foundation. Initially, Respondent was responsible for letting Stulberg know that the Chicago Bar Foundation grant application was due January 16, 2007. Stulberg charged Respondent with the duty of getting the client data sheets ready. The client data sheet was a requirement for the Chicago Bar Foundation application. Respondent stated that she had no prior experience working on grants. In order to compile the statistics for the client data sheets, Respondent used the same information she used for the contract with the Chicago Department on Aging, where she counted duplicated clients for each month. Next, Respondent reviewed the case management form for the 2006 fiscal year, all disability and elderly cases. Respondent manually crossed out duplicated clients and added up all the new cases. Respondent stated that she found approximately 1,734 new cases that were opened during 2006. (Tr. 39-42).
Respondent compared the 2006 client amount with the 2005 client amount (3,714). Respondent stated that she thought there was something wrong because the 2006 amount was less than half of the previous year. Respondent spoke with Stulberg. Stulberg did not accept the 1,734 amount. Respondent stated that Stulberg did not ask how she calculated the 2006 cases. Respondent stated that Stulberg told her, "We cannot use 1,734. We cannot use your number because we are under a microscope and using the number would raise red flags." Respondent also stated that Stulberg told her to do whatever she had to do to not show such a huge discrepancy. Respondent told Stulberg that she counted up the new cases that were opened in 2006. Respondent told Stulberg several times that she deleted duplicate and triplicate cases. Respondent stated that Stulberg did not give her any direction of how to come up with a higher
number. Respondent stated that she was not given an explanation as to how the numbers were calculated in the past and what was used. Respondent added that Stulberg made it very clear by her inferences that this particular data sheet was not a material part of the grant. (Tr. 42-45).
Respondent stated that she took the 1,734 new cases and broke them down by case categories. She then extrapolated the amount using the 2005 numbers to come to the new 2006 case amount of 3,241. Respondent further explained that she took all the new cases that were opened by categories, compared the amount to the 2005 amount and took a prorated amount to get similar numbers, ie. Respondent would extrapolate the figures based on the prior year's grant application. Respondent stated that there was no way of knowing how many cases CDEL handled but she decided to base the amount on the amount of prior years because there were no big changes and she assumed that the people who handled prior grant applications must have known what they were doing. Respondent stated that she changed the amount for the following reasons: 1) CDEL was under a microscope because of a prior embezzlement; 2) Stulberg's position was that everyone in the legal aid community hated CDEL and more importantly, hated Stulberg; 3) the amount of cases was not a material issue; and 4) Stulberg, with seventeen years of experience, was telling Respondent that the numbers needed to be higher. (Resp. Ex. 2; Tr. 45-50).
Respondent submitted the final number, 3,241 cases, to Stulberg for approval. Stulberg was responsible for signing off on all parts of the grant and determining whether the grant should be submitted. Respondent was aware that the client data sheet she submitted would be part of the grant application. Respondent stated that she does not know if the final number she submitted to Stulberg was an accurate count of the cases handled by CDEL in 2006. Respondent
stated that the final number she submitted to Stulberg was also used for the grant application to IOLTA. Stulberg submitted the IOLTA grant application on February 16, 2007. (Tr. 51-54).
On March 23, 2007, IOLTA sent an e-mail to Stulberg raising issues about the grant application. IOLTA had several questions, one which dealt with the fact that the number of administrative hearings dropped from 657 in 2005 to 52 in 2006. Respondent participated in a three-way conference call with Stulberg and Mark Marquardt from IOLTA. IOLTA requested a break-down of the 52 cases reported in 2006 and the 657 cases reported in 2005. During the conversation, Stulberg told Mark that she had nothing to do with any of the figures listed on the data sheets; that it was Respondent's responsibility. Stulberg informed Respondent that she was in charge of putting together the report. After the conversation, Mark sent an e-mail to Stulberg specifically requesting what information IOLTA was requesting. At that point, Respondent realized that the case information was very material to the grant application. (Resp. Ex. 5,7,8; Tr. 55-58).
Respondent discussed the situation with staff members and family. Respondent stated that she was very upset. On March 29, 2007, Respondent contacted a Board Member, Dan Harper ("Harper"), because she wanted to let him know what was going on inside the organization. Respondent stated that her purpose of contacting Harper was to alert him to the situation that had occurred with the grants. Respondent wanted to let him know that an action that was deemed immaterial was in fact, material. Further, Respondent wanted to let him know that the executive director was not taking responsibility for what had occurred, that they were in a serious situation and Respondent was unsure as to what to do. Finally, Respondent did not want to perpetuate any ethical violations upon herself by preparing a report that she was not comfortable preparing. Respondent stated that Stulberg never specifically told Respondent to
fabricate the numbers. Respondent reiterated her reasoning for changing the number from 1,734 to 3,241. Respondent stated that Stulberg did not give her any guidance as to where else she should look for information about the grant application, the person in charge of grants in prior years had been terminated for embezzlement, no one else in the office had worked on client data sheets and Respondent admitted that she did not know how to complete the information. Respondent stated that she should have called someone but she did not know who to call. (Resp. Ex. 9; Tr. 58-62).
Respondent stated that after she sent a letter to Harper, she met with him the following week. Harper told Respondent that he allegations outlined in her letter were very serious. Respondent explained to Harper what had happened regarding the grant applications. Harper outlined some other thing that Respondent should have looked at when calculating the amount of client cases. Harper then had a conversation with Stulberg. After their conversation, Harper spoke with Respondent a second time. Harper informed Respondent that Stulberg denied her allegations. Harper called Respondent's abilities as a chief legal officer into question. Harper indicated that this was a very serious ethical violation and that he may have to contact the ARDC. Harper told Respondent that he would discuss the situation with the other board members. Respondent stated that she was very upset. Harper told Respondent to think twice about lashing out because her reputation would be destroyed. Harper told Respondent to prepare the IOLTA report as Stulberg had requested. (Resp. ex. 9; Tr. 64-67).
Respondent stated that she did not complete the IOLTA report. Respondent stated that she started going through CDEL database and printing out copies of case management reports. Respondent found a lot of discrepancies and inaccurate information in the reports. At that point, Respondent decided not to prepare the report. Respondent felt that there was something wrong
with CDEL, not only in its management in allowing what had transpired, but also in the past reporting. On April 4, 2007, Respondent reported herself to the ARDC. Respondent contacted the Chicago Bar Foundation and IOLTA. Respondent met with the Chicago Bar Foundation and IOLTA on April 9, 2007. Respondent stated that she informed them that CDEL reporting practices were not accurate and therefore the grant applications were not accurate. On April 10, 2007, Respondent submitted a letter of resignation to the board of CDEL. (Resp. 11,12,14; Tr. 68-70).
Respondent stated that she self-reported to the ARDC because she was frightened. She stated that she was looking for guidance and protection from the ARDC. Respondent felt she had an ethical obligation to let the ARDC know what had occurred and what role Respondent played in the situation. Respondent stated that she recognized that relying on Stulberg and not asking for direction on how to complete the form was absolutely wrong. At the time she filed the report with the ARDC, Respondent felt that the client case numbers were inaccurate. Respondent stated that after going over all the documentation and the form, she does not know how any of the numbers could ever be accurate. Respondent stated she wanted to protect herself from CDEL being able to come at her with false allegations. On May 3, 2007, Respondent gave a statement to the ARDC and provided a timeline of events. Respondent stated that CDEL has not audited the information she provided on the client data sheets. The American Bar Association conducted a consultation visit to CDEL and submitted a report on November 30, 2007. The ABA did not find anything wrong with the past case assessments. The ABA did recommend that CDEL improve their record keeping processes. (Adm. Ex. 4; Resp. 14,22; Tr. 70-76).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill.2d 477, 577 N.E.2d 762 (1991).
Having considered the Complaint, Respondent's Answer to Complaint, the testimony stated by the witnesses, and the documentary evidence submitted by the Administrator and Respondent at the hearing, we find that the Administrator failed to meet his burden of proof by clear and convincing evidence. The evidence fails to show what the true and accurate amount of cases should have been recorded on the client data sheets. There has never been an audit of CDEL regarding case management and there was no evidence regarding the proper method of how the required case amounts should be calculated. The ABA did not find any issues during their consultation and as a result of ABA's visit, however, CDEL's record keeping processes have been improved. Therefore, we cannot determine if the information that Respondent provided to Stulberg for grant application purposes was indeed a misrepresentation.
We find that the Administrator failed to offer evidence proving that Respondent intended to engage in dishonest conduct. Without any evidence of dishonest intent, we view any misrepresentation as simply an exercise in poor judgment and, at most, a technical violation of the rule. In re Howard, 96 CH 531, M.R. 15103 (September 28, 1998). The circumstances of this case indicate that Respondent derived no personal gain from her actions; no clients benefited nor were any clients harmed by Respondent's actions. We find Respondent's testimony to be credible and irrefutable. Respondent stated that she was inexperienced, had no resources to
consult for assistance and she was under the impression that the information was immaterial to the grant application process. Once Respondent realized the importance of the client data sheets, she took every action to rectify the potential inaccurate information. We find that Respondent's subsequent actions to be appropriate in attempting to rectify the situation. The Administrator stated that Respondent should have resigned immediately. We question the Administrator's claim. How fast should an attorney react? In this case, Respondent reported herself within eleven days and resigned from her position in nineteen days. In this case, we find this length of time appropriate. Further, we find that Respondent's conduct does not defeat the administration of justice or bring the legal profession into disrepute.
Therefore, we recommend that the allegations of misconduct charged in the Complaint be dismissed.
Date Entered: April 17, 2008
|John B. Whiton, Chair, with Larry R. Kane and William E. Gabbard, concurring.|