BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

MICHAEL JOSEPH FINN,

Attorney-Respondent,

No. 6281769..

Commission No. 2013PR00103

FILED --- August 29, 2013

 

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Emily A. Adams, pursuant to Supreme Court Rule 753(b), complains of Respondent, Michael Joseph Finn, who was licensed to practice law in Illinois on May 6, 2004, 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, and which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

COUNT I
(Neglect, misrepresentation and failure to correct misrepresentation to court)

1. On or about July 16, 2010, Respondent agreed to represent Kenneth Clark (hereinafter "Clark") in Clark's appeal of his criminal conviction for possession of crack cocaine with intent to distribute. Clark was sentenced to 240 months in the federal penitentiary. The matter was captioned United States v. Kenneth Clark and was assigned case number 10-2254 (hereinafter "Clark's appeal"). Respondent did not represent Clark during Clark's trial, but only represented Clark after he was convicted. Respondent was paid $15,000 for his representation of Clark in Clark's appeal.

2. As part of Respondent's agreement to represent Clark in his appeal, Respondent was to file an appellate brief, a reply brief to the government's brief, and represent Clark at oral argument in the appeal. Respondent paid a brief writer $5,000 to prepare drafts of the appellate brief and reply brief.

3. On or about December 13, 2010, Respondent filed the appellate brief in Clark's appeal. On or about March 14, 2011, the United States filed its brief in Clark's appeal. On or about March 28, 2011, Respondent filed Clark's reply brief to the United States' brief.

4. On or about March 18, 2011, the Seventh Circuit Court of Appeals (hereinafter "the court") issued an order in Clark's appeal setting oral arguments for April 14, 2011 at 10:30 a.m. in front of Judge Easterbrook, Judge Rovner, and Judge Sykes. Respondent received the order shortly thereafter.

5. At no time before April 14, 2011 had Respondent presented an entire oral argument on his own before the Seventh Circuit Court of Appeals.

6. On April 14, 2011, at approximately 9:50 a.m., Respondent phoned the clerk's office and spoke to an employee at the Clerk's office named Andrew Burke. Respondent informed the clerk's office that he was ill, that he had vomited earlier in the morning, and that he did not feel well enough to come to court that morning.

7. Respondent's statements that he was ill, that he had vomited earlier in the morning, and that he did not feel well enough to come to court were false, and Respondent knew they were false because at no time was Respondent ill on the morning of April 14, 2011. Rather, Respondent did not appear for oral arguments because he felt unprepared.

8. The clerk's office informed Respondent to keep his phone on should the court require Respondent to appear for oral argument despite Respondent's statements that he was ill. Although the clerk's office subsequently contacted Respondent to tell him that his appearance was required, Respondent did not answer his phone or return phone messages left for him by the clerk's office.

9. On April 14, 2011, the court held oral arguments in Clark's appeal. An attorney for the United States was present and argued its position. At no time did Respondent, or anyone, appear on behalf of Clark to present an oral argument on Clark's behalf.

10. On April 14, 2011, the court issued an order requiring Respondent to show cause why he should not be subject to professional discipline due to his failure to appear for oral arguments in Clark's appeal and for failing to submit an appendix containing a transcript of the district court's ruling in compliance with Circuit Rule 30(a). The court's April 14, 2011 order stated, "[i]f [Respondent] believes that he was medically unable to perform his professional obligations, he must supply appropriate medical documentation, such as a certificate showing his admission to a hospital's emergency room."

11. On or about April 28, 2011, Respondent filed his response to the court's April 14, 2011 order, mentioned in paragraph 10, above. At no time did Respondent correct the false statements he made to the clerk's office that he was ill, had vomited on the morning of April 14, 2011, and did not feel well enough to attend oral arguments. Also, at no time did Respondent inform the court that the reason he did not appear for oral arguments was because he felt unprepared to argue Clark's appeal. At no time did he provide the court with medical documentation, as the court requested in paragraph 10, above.

12. On or about September 15, 2011, the court issued its final opinion in Clark's appeal. Due to Respondent's failure to appear for oral argument, the court never heard oral argument on Clark's behalf. The court affirmed Clark's conviction for possession of crack cocaine with intent to distribute. The court further concluded that Respondent had acted unprofessionally and publicly censured Respondent and fined him $1,000.

13. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (1990);

  2. knowingly making a false statement of fact or law to a tribunal, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);

  3. failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);

  4. conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);

  5. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  6. conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute.

COUNT II
(Misrepresentation to client)

14. The Administrator realleges paragraphs 1-13, above.

15. On or about October 4, 2011, Respondent drafted and sent a letter to Clark informing Clark of the court's opinion, referred to in paragraph 12, above. In that letter, Respondent stated,

I was publicly censured by the court for failing to appear for oral arguments for your case. I was ill the morning oral arguments were scheduled to be heard. I notified the court that I was ill and unable to come to court. Please be assured that I did not "abandon" you as the court states.

16. Respondent's statements as referred to in paragraph 15, above, were false and Respondent knew they were false because Respondent was not ill the morning oral arguments were scheduled to be heard, but did not appear for oral arguments because he felt unprepared.

17. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);

  2. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  3. conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute.

COUNT III
(Misrepresentation to the Administrator)

18. The Administrator realleges paragraphs 1-17, above.

19. On or about September 16, 2011, the Administrtor received a copy of the court's opinion referred to in paragraph 12, above. The Administrator docketed the matter as investigation number 2011IN04197. On September 22, 2011, counsel for the Administrator sent a letter to Respondent that enclosed the court's opinion and requested that Respondent submit a written response.

20. On November 2, 2011, Respondent sent a response letter to counsel for the Administrator. In his letter, Respondent explained his failure to appear for oral arguments in Clark's matter and stated,

On the evening of April 13, 2011, I went to bed with a headache and with a queasy feeling in my stomach. During the night, I had cold sweats and had difficulty sleeping. On the morning of April 14, 2011, I got out of bed sometime around 5:00 AM. I went to the bathroom and vomited. I went back to bed and got up again around 8:30 AM. Although I felt much better at this time, I thought I was not well enough to go to court. After going back and forth about it, I decided to stay home.

* * *

I simply was ill on a critical day of court for my client. In retrospect, I believe I was medically able to participate in oral arguments, but it was a close call and at the time I thought that I was too ill.

21. Respondent's statements referred to in paragraph 20, above, were false and Respondent knew they were false because Respondent was not ill on the evening of April 13, 2011 or the morning of April 14, 2011. He did not vomit and he was well enough to go to court. Respondent did not go to court because he felt unprepared to argue Clark's appeal.

22. On or about March 1, 2012, the Administrator received a written report and relevant records from Clark related to the allegations in paragraphs 1-17, above. The Administrator docketed the matter as investigation number 2012IN01132. On March 14, 2012, counsel for the Administrator sent a letter to Respondent that enclosed Clark's letter and enclosures and requested that Respondent submit a written response.

23. On April 19, 2012, Respondent sent a response letter to counsel for the Administrator. In his letter, Respondent explained his failure to appear for oral arguments in Clark's matter and stated,

On the evening of April 13, 2011, I went to bed with a headache and with a queasy feeling in my stomach. During the night, I had cold sweats and had difficulty sleeping. On the morning of April 14, 2011, I got out of bed sometime around 5:00 AM. I went to the bathroom and vomited. I went back to bed and got up again around 8:30 AM. Although I felt much better at this time, I thought I was not well enough to go to court. After going back and forth about it, I decided to stay home.

24. Respondent's statements referred to in paragraph 23, above, were false and Respondent knew they were false because Respondent was not ill on the evening of April 13, 2011 or the morning of April 14, 2011. He did not vomit and he was well enough to go to court. Respondent did not go to court because he felt unprepared to argue Clark's appeal.

25. On October 9, 2012, Respondent appeared at the Attorney Registration and Disciplinary Commission for a sworn statement. During that sworn statement, Respondent was asked the following questions and gave the following answers:

Q. And did you attend oral argument?

A. I did not.

Q. Why not?

A. Because the morning of oral argument I was ill. And I didn't think that I was well enough to participate in oral argument.

***

Q. Did you think that your not coming to oral arguments, did you think that would affect your client's case at all?

A. I did not - - I didn't know. At that time I just knew I was sick and that I made a decision that I wasn't well enough to get in my car and drive to be in court with other people or to argue. I thought I might - - I mean, I did not vomit again that day, but I thought - - I was still feeling sick, and I just made a decision that I was too sick to go. And it didn't - - you know, I think now, though, when I look back at it, I think I probably should have gone. And like I said, I - - I didn't vomit again. I felt better after I threw up. I didn't go to the hospital. I - - so - - but not, I didn't consider whether or not it was going to harm Mr. Clark's appeal. I just knew that I - - or I thought I couldn't go to court.

***

Q. And why didn't you answer your phone?

A. Because I was sick. I went to bed. I did not want to take phone calls.

***

Q. And you didn't appear because you thought you were too sick; is that right?

A. Right.

Q. Okay.

A. On the day of - - that I called them, I thought I was too sick to appear.

***

A. I mean, I went to bed April 13th, the night before oral arguments with a headache. And I gradually started to realize I was getting sick. I got cold sweats, I got chills, I did not sleep. It's not - - I wasn't in any condition to write a motion at that time. I - - the only thing that was on my mind is what - - am I going to be able to go to oral arguments. And after I vomited, I did feel better. And I considered going to oral arguments. I thought that I - - I was starting to think I could do this, then I decided no, I can't. Ultimately I decided not to go.

26. Respondent's statements during his sworn statement, referred to in paragraph 25, above, were false, and Respondent knew they were false because on April 13, 2011 and April 14, 2011 Respondent was not ill and had not vomited. He did not attend oral arguments because he did not feel prepared to argue Clark's appeal.

27. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. making a statement of material fact known by the lawyer to be false, in connection with a lawyer disciplinary matter, in violation of Rule 8.1(a) of the Illinois Rules of Professional Conduct (2010);

  2. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);

  3. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  4. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

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.

 

Emily A. Adams
Counsel for Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Facsmile: (312) 565-2320

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Emily A. Adams