BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

MARIO E. UTRERAS,

Attorney-Respondent, 

No. 6230426.

 

Commission No.  08 CH 52

FILED -  June 18, 2008

COMPLAINT
(Neglect of Racial Discrimination/Employment Case &
Breach of Fiduciary Duty to Partners at Hinshaw & Culbertson, LLP)

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Alicia F. Duncan, pursuant to Supreme Court Rule 753(b), complains of Respondent, Mario E. Utreras, who was licensed to practice law in the State of Illinois on November 9, 1995, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

1. On December 24, 2003, Ahmad Milam ("Milam") filed a complaint alleging racial discrimination against his employer Dominick's Finer Foods, Inc. ("Dominick's") and a pro se appearance. The case was docketed as Milam, et. al. v. Dominick's Finer Foods, Inc., et. al., case number 03 C 9343, in the United States District Court for the Northern District of Illinois.

2. On January 23, 2004, Travis Thomas ("Thomas") filed a complaint alleging racial discrimination against his employer Dominick's and a pro se appearance. The case was docketed as Thomas v. Dominick's Finer Foods, Inc., et. al., case number 04 C 561, in the United States District Court for the Northern District of Illinois.

3. From February 2004 to October 30, 2006, Respondent practiced law as a solo practitioner under the name, Utreras Law Offices, LLC, located in Chicago, Illinois. Respondent concentrated his practice in employment litigation.

4. On or about April 13, 2004, Respondent agreed to represent Milam and Thomas in their racial discrimination/employment lawsuits against Dominick's. Respondent agreed to accept a contingency fee for his representation.

5. On April 14, 2004, Respondent filed his appearance on behalf of Thomas in case number 04 C 561.

6. On April 29, 2004, Respondent filed his appearance on behalf of Milam in case number 03 C 9343.

7. On May 12, 2004, Respondent filed a Second Amended Complaint in case number 04 C 561 adding United Food and Commercial Workers Union, Local 881, and Patrick Statter ("the Union defendants") as defendants.

8. On June 8, 2004, Respondent filed a Third Amended Complaint in case number 03 C 9343 adding the Union defendants.

9. On September 14, 2004, case number 04 C 561 was consolidated with case number 03 C 9343.

10. On or before October 25, 2004, Respondent agreed to represent Marlon Clark ("Clark"), Stephen Falkner ("Falkner"), and Charles Hamb, Jr. ("Hamb") in their racial discrimination claims against Dominick's. Respondent agreed to accept a contingency fee for his representation.

11. On October 25, 2004, Clark, Falkner, and Hamb were added as plaintiffs in case number 03 C 9343.

12. On or before June 17, 2005, Respondent agreed to represent Timothy Smith ("Smith") in his racial discrimination claims against Dominick's. Respondent agreed to accept a contingency fee for his representation.

13. On June 17, 2005, Smith was added as a plaintiff in case number 03 C 9343 and Respondent filed his appearance on behalf of Smith.

14. On November 14, 2005, Respondent filed a Fifth Amended Complaint in case number 03 C 9343 on behalf of Milam, Thomas, Clark, Smith, Falkner, and Hamb.

15. On July 24, 2006, the Union defendants and defendants Dominick's, Thomas Odette, Mark Selby, and Robert Smith ("the Dominick's defendants") filed separate motions for Summary Judgment in case number 03 C 9343.

16. Plaintiffs' responses to the Union and Dominick's defendants' motions for summary judgment were due to be filed by September 5, 2006.

17. On or about August 22, 2006, Respondent accepted an offer of partnership with the law firm of Hinshaw & Culbertson, LLP ("Hinshaw").

18. At all times alleged in this complaint, Hinshaw was engaged primarily in the practice of insurance defense work, defending businesses and government entities in employment litigation matters.

19. Prior to the initiation of his employment at Hinshaw, Respondent knew that Hinshaw expected him to build a practice on representing businesses and government entities in employment litigation matters, and that, accordingly, he should withdraw from and/or find substitute counsel for as much of his plaintiff employment litigation practice as possible prior to his employment.

20. Prior to the initiation of his employment at Hinshaw, Respondent knew that he would have to close his solo practice when he started at the firm and that once he began his employment at Hinshaw he would be required to proceed on all matters, henceforth, as a Hinshaw lawyer and not a solo practitioner.

21. Prior to the initiation of his employment at Hinshaw, Respondent knew that when he started at the firm he would be required to substitute Hinshaw in as counsel of record for all open client matters, and to input client names in the Hinshaw conflict system for the purpose checking for conflicts of interest.

22. Prior to the initiation of his employment at Hinshaw, Hinshaw provided Respondent with a Lateral Partner Due Diligence questionnaire. Paragraph 16 of the questionnaire stated: "If you wish to bring any contingent fee cases to the Firm, please provide a full description as they require pre-approval from our contingency fee committee." Respondent identified case number 03 C 9343, as well as Janis Taylor v. Abt Electronics, 05 C 576, as contingent fee cases he wished to bring to Hinshaw, but, at no time prior to the initiation of his employment at Hinshaw, did Respondent receive the required pre-approval from the contingency fee committee.

23. On September 5, 2006, the court, upon Respondent's motion, extended the filing date for plainiffs' responses to the Union and Dominick's defendants' motions for summary judgment in case number 03 C 9343 to September 19, 2006.

24. At no time on or prior to September 19, 2006, did Respondent file the plaintiffs' responses to the Union and Dominick's defendants' motions for summary judgment in case number 03 C 9343 as ordered.

25. On October 2, 2006, Respondent filed a motion for leave file the plaintiffs' response to the Union defendants' motion for summary judgment instanter in case 03 C 9343. Respondent filed the plaintiffs' response to the Union defendants' motion for summary judgment with the motion.

26. On October 3, 2006, two weeks after the due date, Respondent filed a motion for leave to file instanter the plaintiffs' response to the Dominick's defendants' motion for summary judgment. Respondent did not file the plaintiffs' response to the Dominick's defendants' motion for summary judgment with the motion. Rather, he represented in the motion that he would file the plaintiffs' response to the Dominick's defendants' motion for summary judgment on October 5, 2006.

27. On October 5, 2006, the court granted Respondent's motion for leave to file instanter the plaintiffs' response to the Union defendants' motion for summary judgment.

28. On October 5, 2006, the court also granted Respondent's motion for leave to file instanter the plaintiffs' response to the Dominick's defendants' motion for summary judgment. 29. Respondent, however, did not file the plaintiffs' response to the Dominick's defendants' motion for summary judgment on October 5, 2006, as represented in the motion.

30. On or about October 25, 2006, Hinshaw's Management Committee approved a Labor & Employment Law Client Representation Policy which stated:

The Labor & Employment Law Practice Group represents businesses in all aspects of their relationships with employees and independent contractors. A key element of the group's strategic plan, and a goal of the Firm, is to develop and enhance a strong local and national reputation in the business community as a resource for employers.

Consistent with this strategy, the representation of employees in labor and employment law matters adverse to employers shall be limited to matters involving advice, counseling, negotiation of agreements (ie. Employment agreements, separation agreements or releases) and similar non-litigation counseling activities…This policy also does not apply in the event that an attorney is appointed by a federal court to represent an indigent plaintiff in a pro bono employment discrimination action.

31. On or about October 30, 2006, Respondent received a copy of the Labor & Employment Law Client Representation Policy that Hinshaw had implemented. Respondent further understood that it was the practice of the firm not to represent plaintiffs in employment matters unless appointed by the court, and that any plaintiff employment matters had to be approved by the contingency fee committee.

32. On or about October 30, 2006, Respondent attended a new partner orientation meeting where, among other information, he was provided assistance in transferring his client matters to Hinshaw client matters and substituting Hinshaw in as counsel of record for his client matters.

33. While employed by Hinshaw, Respondent owed a fiduciary duty to his partners at Hinshaw of loyalty and to exercise good faith and fair dealing in all of his transactions with Hinshaw and to avoid putting his personal interests above the interests of Hinshaw.

34. At no time prior to October 30, 2006, did Respondent close his solo law practice, Utreras Law Offices. Rather, Respondent maintained the office, the phone number, continued to receive mail at that location, and continued to represent clients including, but not limited to the plaintiffs in case number 03 C 9343, Chicago Transit Authority, Janis Taylor, and Jessica Gonzalez.

35. At no time between October 30, 2006, and, at least, November 17, 2006, did Respondent advise Hinshaw that he was representing the plaintiffs in case number 03 C 9343, and seek or obtain permission from the contingency fee committee at Hinshaw to continue to represent the plaintiffs.

36. At no time between October 30, 2006, and November 21, 2006, did Respondent open a Hinshaw client matter for his representation of the plaintiffs in case number 03 C 9343.

37. At no time between October 30, 2006, and November 30, 2006, did Respondent substitute Hinshaw for his solo law practice as counsel of record for the plaintiffs in case number 03 C 9343.

38. On or about November 16, 2006, plaintiff Clark filed a motion entitled, "Motion of Ethics and Conflict of Interest" in 03 C 9343 in which he expressed concerns he had about Respondent's representation of him including that he learned that Respondent joined Hinshaw.

39. On or about November 17, 2006, plaintiff Thomas also filed a motion entitled, "Motion of Conflict of Interest and Ethics" in 03 C 9343 in which he expressed concerns he had about Respondent's representation of him including that he learned that Respondent joined Hinshaw.

40. On or about November 17, 2006, Respondent advised Hinshaw law firm partner, Robert Shannon ("Shannon"), of his representation of the plaintiffs in case number 03 C 9343.

41. On November 21, 2006, the court, upon Respondent's oral motion, extended the filing date for plaintiffs' response to the Dominick's defendants' motion for summary judgment to November 27, 2006, and stated that, "this is the final extension."

42. On or about November 21, 2007, Respondent advised a Hinshaw law firm partner, Thomas Browne ("Browne"), that he was granted a final extension to November 27, 2007, to file plaintiffs' response to the Dominick's defendants' motion for summary judgment in case number 03 C 9343. Respondent assured Browne that he would be able to file plaintiffs' response by November 27, 2007, as ordered by the court.

43. On or about November 21, 2007, Respondent opened a Hinshaw client matter for his representation of the plaintiffs in case number 03 C 9343.

44. At no time prior to or on November 27, 2006, did Respondent file the plaintiffs' response to the Dominick's defendants' motion for summary judgment in case number 03 C 9343 as ordered or any motion requesting another extension.

45. At no time prior to or on November 27, 2006, did Respondent advise Hinshaw partners, Browne and/or Shannon, that he was not able to file plaintiffs' response to the Dominick's defendants' motions for summary judgment in case number 03 C 9343 by November 27, 2006, as ordered by the court.

46. On November 30, 2006, Respondent filed the plaintiffs' response to the Dominick's defendants' motion for summary judgment without leave of court. Respondent identified himself on the pleading as from Utreras Law Offices, Inc.

47. On December 1, 2006, the Dominick's defendants filed a motion to strike the plaintiffs' response to their motion for summary judgment as untimely and renewed their motion for summary judgment.

48. On December 12, 2006, the court granted the Dominick's defendants' motion to strike the plaintiffs' response to their motion for summary judgment and renewed motion for summary judgment and judgment was entered in favor of the Dominick's defendants against plaintiffs.

49. At no time before December 12, 2006, had Respondent advised Hinshaw partners Browne or Shannon that he was not able to file plaintiffs' response to the Dominick's defendants' motions for summary judgment in case number 03 C 9343 in a timely fashion.

50. On or shortly after December 12, 2006, Hinshaw learned that Respondent continued to represent clients he had prior to his employment with Hinshaw, in addition to the plaintiffs in case number 03 C 9343, including, but not limited to, Chicago Transit Authority, Janis Taylor, and Jesica Gonzalez, without opening Hinshaw client matters, inputting the party names into the Hinshaw conflict system, or substituting Hinshaw as counsel of record.

51. On or shortly after December 12, 2006, Hinshaw asked Respondent for his resignation.

52. On or about January 12, 2007, Hinshaw terminated Respondent's employment.

53. Respondent's conduct in failing to advise his partners at Hinshaw that he continued to represent clients he had prior to his employment with Hinshaw, including, but not limited to the plaintiffs in 03 C 93423, without opening Hinshaw client matters, inputting the party names into the Hinshaw conflict system, or substituting Hinshaw as counsel of record, as set forth in paragraphs 34 through 37 and paragraph 50, above, was dishonest and Respondent knew it was dishonest because Respondent knew of Hinshaw's expectation, requirements, and practices in this regard.

53. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. breach of fiduciary duties to the law firm;

  2. failing to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Illinois Rules of Professional Conduct;

  3. conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;

  4. engaging in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  5. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.

WHEREFORE, The Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Alicia F. Duncan
Senior Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600 
Counsel for Administrator
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Alicia F. Duncan