Filed July 6, 2012

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

In the Matter of:

CARYN H. NADENBUSH,

Attorney-Respondent,

No. 6243557.

Commission No. 2011PR00077

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on December 15, 2011, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Hearing Board Panel consisting of Leo H. Konzen, Chair, Randall B. Rosenbaum and Albert O. Eck, Jr. The Administrator was represented by Denise Church. The Respondent appeared and was represented by Donald E. Groshong.

THE PLEADINGS

On July 6, 2011, the Administrator filed a one-count Complaint against the Respondent. An Amended Complaint, containing two counts, was filed on October 25, 2011. Count I of the Amended Complaint alleged that, at various times in the years 2009 and 2010, the Respondent engaged in e-mail communications with Jennifer Teague, an arbitrator with the Illinois Workers' Compensation Commission, without providing a copy of such e-mails to opposing counsel. The e-mails pertained to worker's compensation cases pending before Teague, in which the Respondent was representing the employers.

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As to the ex parte e-mails the Respondent exchanged with Arbitrator Teague in 2009, Count I of the Amended Complaint charged that the Respondent engaged in the following misconduct: (a) in an adversary proceeding, communicated ex parte as to the merits of the cause with a judge or an official before whom the proceeding is pending, in violation of Rule 3.5(i) of the Illinois Rules of Professional Conduct (1990); (b) engaged 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 (1990); and (c) engaged 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.

As to the ex parte e-mails the Respondent exchanged with Arbitrator Teague in 2010, Count I of the Amended Complaint charged that the Respondent engaged in the following misconduct: (a) communicated ex parte with a judge or other official during a proceeding, in violation of Rule 3.5(b) of the Illinois Rules of Professional Conduct (2010); (b) engaged in 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 (c) engaged 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.

Count II of the Amended Complaint alleged that the Respondent knowingly made a false statement during her sworn statement to the ARDC on April 14, 2011, and in a letter she sent to the ARDC on June 4, 2011. Based upon the forgoing, Court II charged that the Respondent engaged in the following misconduct: (a) knowingly made a false statement of material fact in connection with a lawyer disciplinary matter, in violation of Rule 8.1(a)(1) of the Illinois Rules of Professional Conduct (2010); (b) engaged in dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010); (c) engaged in

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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 (d) engaged 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.

The Respondent filed an Answer to the Amended Compliant in which she admitted some of the factual allegations, denied others, and denied all of the charges of misconduct.

THE EVIDENCE

The Administrator presented the testimony of Fritz Levenhagen and Lindsay Rakers. The Administrator's Exhibits 1 through 12 were admitted into evidence. (Tr. 7). The Respondent testified in her own behalf and presented the testimony of Darren Keith Short and Terrence O'Leary. Respondent's Exhibits 1 through 7 were admitted into evidence. (Tr. 8, 54, 86).

Fritz Levenhagen

Mr. Levenhagen testified that he has been licensed to practice of law in Illinois since 1986, and that 80 to 90% of his practice consists of workers' compensation cases. (Tr. 20).

He represented Deanna Croghan in a workers' compensation case filed in 2008. The Respondent, who was then with the law firm of Hennessey and Roach, represented Walgreens, the employer, in that case. Croghan had a repetitive trauma claim, specifically a condition called thoracic outlet compression syndrome. He described the foregoing syndrome as a "very rare condition." He has handled hundreds of repetitive trauma cases, but only about eight thoracic outlet compression syndrome cases. Walgreens denied liability. Walgreen's claimed that Croghan's condition was the result of a car accident in 2003, which occurred five years before her work injury. Croghan's case is still pending. (Tr. 24-25, 27-28, 32-33, 46, 57).

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Croghan's case was assigned to Arbitrator Jennifer Teague by 2009, and she was still the arbitrator for the case in May 2010. Levenhagen said that he and the Respondent had appeared before Teague on the case many times, but they did not discuss the facts or the issues with Teague. He also said that in May 2010, it was not an older case, and Teague had made no effort to mediate the case. (Tr. 55-59)

On May 12, 2010, Levenhagen took the deposition of a medical expert, Dr. Thompson. The Respondent was present at the deposition, which commenced at 2 p. m. (Tr. 31-32, 50).

In February 2011, Levenhagen learned from a newspaper article that an attorney had sent Teague an e-mail on May 12, 2010, asking what a thoracic outlet syndrome case was worth. He subsequently obtained a copy of e-mails exchanged between the Respondent and Teague on May 12, 2010. (Tr. 34-35). In the first e-mail from the Respondent to Teague on that date, she asked "What do you think bilateral thoracic outlet syndrome is worth." The foregoing e-mail was sent at 1:12 p.m., less than an hour before the deposition of Dr. Thompson commenced. At 1:16 p. m., Teague replied "40 to 50 MAW [man as whole]??? Let me do a little checking?.. give me 10." Respondent replied to Teague "No hurry. She had full duty release, no problems and is actually better than before (the problem seems to have started following an auto accident)." The next e-mail from Teague to the Respondent was sent on the following day, May 13, 2010, and stated "I did some research in my old decisions. It seems I have written them anywhere from 20 MAW up to 45 MAW. Was there surgery?" The Respondent replied to Teague, "Yes surgery." Levenhagen voiced the opinion that the foregoing e-mail exchange was about Croghan's case. (Tr. 29-33, 36-37, 47-51; Adm. Ex. 5 at 3).

Levenhagen discussed the importance of some of the things mentioned in the e-mails from the Respondent to Teague on May 12, 2010. As to the prior "auto accident," he said "if the

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arbitrator believes that the condition was caused by the accident, my client [Croghan] loses her cases and gets zero." He also said that a "full duty release" is significant because "someone that has restrictions is probably entitled to more compensation than someone that has a full duty release." (Tr. 31-32).

Levenhagen said his reaction to the above e-mails was that it was "inappropriate and wrong for Ms. Nadenbush to contact arbitrator Teague directly about Ms. Croghan's case without my knowledge and inject her primary defense in the case in front of the arbitrator without me knowing it." (Tr. 35). He filed a report about this matter with the ARDC in May 2011. (Tr. 35-36).

Lindsay Rakers

Ms. Rakers testified that she has been a licensed attorney in Illinois sine 2002. She is also licensed in Missouri. In 2009, she represented Duane Pound in a workers' compensation case. At that time, she had been handling workers' compensation cases for less than year. The Respondent represented Pound's employer, Henderson Trucking. Jennifer Teague was the arbitrator assigned to that case. Pound was a truck driver who claimed injuries to his neck and back. Teague presided at a 19(b) hearing and granted temporary awards to Pound. Teague's decision in that regard (Resp. Ex. 7) had a typed date of March 10, 2010 and a stamped date of March 17, 2010. (Tr. 63-65, 77, 84-85, 89, 92-97). The case was ultimately settled in May 2010, and Teague approved the settlement agreement on July 1, 2010. (Tr. 81-83, 89; Resp. Ex. 2 at 15).

On January 29, 2010, Rakers sent an e-mail to the Respondent, pointing out that a "Dr. Chabot references Dr. Guatam Jha," when it apparently should have been a "Dr. Cruz." Rakers said she would object to the reference. The Respondent forwarded Rakers' e-mail to Teague and

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said "She is really starting to annoy me. Either let the report in or don't, but don't tell me I can admit it and then nitpick every line to find things to object to." Teague replied by e-mail to the Respondent, saying "all you have to do is object to going forward because you need a dep. That will cook her goose and she'll fall apart. She is annoying and a bad lawyer, I think. Not 100% on that, just a feeling." (Tr. 72-73; Adm. Ex. 7 at 3).

On February 8, 2010, Rakers sent an e-mail to the Respondent asking what amount of medical has been paid for Pound's back claim. The Respondent forwarded Rakers' e-mail to Teague, and made the comment "Make it stop." Teague replied "OMG- I assume you are trying to settle." The Respondent then replied to Teague "I haven't offered her anything yet. She wants medical which we are disputing." (Tr. 73; Adm. Ex. 7 at 5).

On February 17, 2010, Rakers sent a question to the Respondent. The Respondent forwarded Rakers' e-mail to Teague, and made the comment "Why does this have to be so painful?" (Tr. 74; Adm. Ex. 7 at 9).

On March 10, 2010, Teague sent an ex parte e-mail to the Respondent, stating that "Her [Rakers'] f'n exhibits- I can't figure out where the god damn records are and I am pissed!" The Respondent replied to Teague "Tell me about it!!! That was cluster trying to go through those and cite stuff." Teague relied to the Respondent "Oh yes, I know . . . that's why I was pitching a fit at the arbitration. She basically put in the records twice." (Adm. Exs. 8-1). Rakers testified that she had previously asked Teague about records, and thought that Teague had indicated she liked them loose. (Tr. 74-75, 79-80).

On March 31, 2010, Rakers sent an e-mail to the Respondent stating "I have authority to demand 30% MAW [man as whole]. Let me know." The Respondent forwarded Rakers' e-mail to Teague and stated "She's kidding right?" Teague replied "??." The Respondent then sent

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another e-mail to Teague and sated "I mean, it's a back sprain." Teague replied "minus like 25." Finally, the Respondent told Teague "That's what I was thinking." (Tr. 66-69, 87-89; Adm. Ex. 4 at 5).

Rakers testified that she did not give permission for the Respondent to forward Rakers' e-mails to Teague, and that she learned of the exchange of the above e-mails between the Respondent and Teague after the Pound case had settled. She was surprised by the e-mails. She talked with her "boss" at the law firm where she works and with an attorney at the ARDC about what her obligations were, in light of the e-mails. (Tr. 66-67, 69-71, 73, 76).

Darren Keith Short

Mr. Short testified that he is an attorney and has been handling workers' compensation cases for 20 years. In the workers' compensation case of Blakemore v. Walgreens, he represented Blakemore and the Respondent represented Walgreens. The arbitrator in that case was Jennifer Teague. (Tr. 170-72, 177).

On May 27, 2009, the Respondent sent an e-mail to Teague without sending a copy to Short. In her e-mail, the Respondent said "Keith Short refuses to discuss settlement with me and is pushing to finish the trial on 6/3. I don't have a problem with that, but can we get scheduled first." She further stated in the e-mail "I think I told you he demanded $50K, for full and final before lunch last trial day, then wouldn't accept it after lunch. Then he upped his demand to $80K, but said he hadn't talked to his client yet. WTF??." Teague replied in an e-mail to the Respondent, without a copy to Short, that "he's clearly jerking you around. You can go first on Wednesday, no problem." (Tr. 174-75; Resp. Ex. 1 at 1; Adm. Ex. 2 at 2).

Short said that he concurred in advance for the Respondent to contact Teague concerning scheduling, and was not offended that he did not receive a copy of the Respondent's e-mail to

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Teague. He also said he already knew everything that was mentioned in the e-mail. He acknowledged Teague was not previously aware that he increased his demand from $50,000 to $80,000. He further stated that he was not offended by Teague's reply to the Respondent. (Tr. 175-76, 182-84).

The Blakemore case was settled after one day of trial for the amount of $44,900. Short said that the above e-mails between the Respondent and Teague had nothing to do with how the case was resolved. (Tr. 177-79, 183).

Terrence O'Leary

Mr. O'Leary testified that he has been a licensed attorney in Illinois since 1972. He has known the Respondent since she was a child. (Tr. 186-87). He said the Respondent's reputation for truth and veracity is above reproach. (Tr. 186-87).

The Respondent

The Respondent testified that she graduated from law school in 1997 and was licensed to practice law in Illinois in November of the same year. She is also licensed in Missouri. She worked at the Illinois Environmental Protection Agency, the Illinois Attorney General's Office, and at a plaintiff's law firm in Granite City. She began working at the law firm of Hennessey and Roach in 2004, and became a partner. She was discharged by Hennessey and Roach in February 2011. She is divorced and has an eleven year old son. (Tr. 100-104).

The Respondent met Jennifer Teague in law school, and they became good friends. Teague became an arbitrator for the Workers' Compensation Commission. The Respondent represented employers in cases assigned to Teague. The Respondent and Teague occasionally went to lunch together following docket calls. They also frequently communicated in e-mails. (Tr. 111-13; Adm. Ex. 1).

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In February 2011, Teague informed the Respondent that a newspaper had obtained Teague's e-mails with the Respondent and other friends who were attorneys. The newspaper was going to publish an article about those e-mails. The Respondent immediately discussed the matter with a managing partner at her law firm. Later the same day, she had a telephone conversation about the e-mails with three managing partners. By that time, the managing partners had obtained the e-mails. On the following day, February 11, 2011, the Respondent was terminated from the law firm because of her e-mails with Teague. She said she has not been employed since than, and began receiving unemployment compensation about two months before this disciplinary hearing. Her loss of employment has been a financial hardship. (Tr. 103-108).

The Respondent described the workers' compensation proceedings in southern Illinois as informal. She said arbitrators act as an intermediary and a mediator in certain instances. When a case is tried, the arbitrator adjudicates the matter. Also, an arbitrator approves settlements.(Tr. 108-10).

The Blakemore v. Walgreens Matter

In May 2009, the case of Blakemore v. Walgreens was pending before Arbitrator Teague. The Respondent represented Walgreens, the employer, and attorney Keith Short represented Blakemore. After the case had been partially tried before Teague, the Respondent and Short discussed a possible settlement. It was not resolved on the day of the partial trial because the Respondent was unable to obtain settlement authority from her client. The Respondent and Short had a telephone conversation during which Short "was mad" because the Respondent "still did not have settlement authority," and he said "let's do trial." (Tr. 114-16).

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Soon after the above telephone conversation the Respondent sent an e-mail to Teague on the morning of May 27, 2009, without sending a copy to Short. In her e-mail, the Respondent said:

Keith Short refuses to discuss settlement with me and is pushing to finish the trial on 6/3. I don't have a problem with that, but can we get scheduled first? I have all those witnesses and I don't want to have to ask them to sit around all day again after they've already done it once. And I am not sure what Keith wants at this point. I think I told you he demanded $50K, for full and final before lunch last trial day, then wouldn't accept it after lunch. Then he upped his demand to $80K, but said he hadn't talked to his client yet. WTF??

Teague sent a responding e-mail, without sending a copy to Short, saying, in part, "He's clearly jerking you around. You can go first on Wednesday, no problem." (Tr. 114; Resp. Ex. 1 at 1).

The Respondent explained that Short was aware she was going to contact Teague to schedule the rest of the trial. She also said that Teague was already aware of everything that was stated in her e-mail. (Tr. 115-16, 120-21).

The case was settled, for $44,500 before the trial was resumed. The Respondent said it was not unusual for a claimant to demand a large amount, knowing that it would be compromised later. Teague approved the settlement on June 3, 2009. (Tr. 118-19; Resp. Ex. 1 at 3-4).

The Pound v. Henderson Trucking Matter

The Pound v. Henderson Trucking case was pending before Arbitrator Teague during January 2010 to mid-May 2010. Attorney Lindsay Rakers represented Pound, and the Respondent represented the employer. The case settled in May 2010. The Respondent described Rakers as a younger attorney who had less experience in workers' compensation cases than the Respondent. The Respondent said that Rakers frequently contacted her with various questions, and it got to the point that the Respondent became very frustrated with Rakers. Out of her

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frustration, the Respondent exchanged e-mails with Teague about Rakers, without sending Rakers a copy of such e-mails. (Tr. 122-23, 125, 136-37; Resp. Ex. 2 at 15).

On January 29, 2010, Rakers sent an e-mail to the Respondent, pointing out that a "Dr. Chabot references Dr. Guatam Jha," when it apparently should have been a "Dr. Cruz." Rakers said she would object to the reference. The Respondent forwarded Rakers' e-mail to Teague and said "She is really starting to annoy me. Either let the report in or don't, but don't tell me I can admit it and then nitpick every line to find things to object to." Teague replied by e-mail to the Respondent, saying "all you have to do is object to going forward because you need a dep. That will cook her goose and she'll fall apart. She is annoying and a bad lawyer, I think. Not 100% on that, just a feeling." (Tr. 124-25; Resp. Ex. 2 at 2). The Respondent said that the foregoing e-mails did not talk about the merits of the case. (Tr. 126).

On February 8, 2010, Rakers sent an e-mail to the Respondent asking what amount of medical has been paid for Pound's back claim. The Respondent forwarded Rakers' e-mail to Teague, and made the comment "Make it stop." Teague replied "OMG- I assume you are trying to settle." The Respondent then replied to Teague "I haven't offered her anything yet. She wants medical which we are disputing." (Tr. 127-29; Resp. Ex. 2 at 7).

On February 17, 2010, Rakers sent an e-mail to the Respondent, asking her opinion about Teague meant by having noted that claimant had the right to depose a certain person. The Respondent forwarded Rakers' e-mail to Teague, and made the comment "Why does this have to be so painful?" (Resp. Ex. 2 at 9, 13-31).

On March 10, 2010, Teague sent an e-mail to the Respondent, without sending a copy to Rakers, stating that "Her [Rakers'] f'n exhibits- I can't figure out where the god damn records are and I am pissed!" The Respondent replied to Teague "Tell me about it!!! That was cluster

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trying to go through those and cite stuff." The Respondent said that Teague was venting frustration with the exhibits. (Tr. 132; Resp. Ex. 2 at 10).

On March 31, 2010, Rakers sent an e-mail to the Respondent stating "I have authority to demand 30% MAW [man as whole]. Let me know." The Respondent forwarded Rakers' e-mail to Teague and stated "She's kidding right?" Teague replied "??." The Respondent then sent another e-mail to Teague and stated "I mean, it's a back sprain." Teague replied "minus like 25." The Respondent then told Teague "That's what I was thinking." (Tr. 132-33; Resp. Ex. 2 at 14).

The Respondent pointed out that there had been a 19(b) hearing, for temporary benefits, before Teague. That hearing was held on February 4, 2010, and Teague signed a decision for that matter on March 10, 2010. (Resp. Ex. 7). Thus, according to the Respondent, Teague, was aware of the claims in the Pound case and had found that Pound's' compensable injury was a sprained back. (Tr. 133-36). The Pound case was settled in May 2010. (Tr. 136-37, 139-40; Resp. Ex. 2 at 15).

The Croghan v. Walgreens Matter

The worker's compensation case of Croghan v. Walgreens was filed in 2008, and is still pending. The Respondent represented Walgreens, and attorney Fritz Levenhagen represented the claimant. In 2010, the case was before Arbitrator Teague. (Tr. 143-44, 146, 149-59, 194).

Croghan's claimed injury was thoracic outlet syndrome, which is a repetitive type injury. The Respondent said it is not as common an injury as a sprained back or carpel tunnel syndrome. (Tr. 144, 147). Walgreens disputed the claim on the ground that Croghan's injury was the result of an automobile accident. (Tr. 146, 194, 199-200). The Respondent acknowledged that, from 2008 through May 2010, there had not been any conversation about the case in front of Teague,

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except to continue the case. (Tr. 146, 157). Levenhagen scheduled the deposition of an expert witness, Dr. Thompson, at 2:00 p.m. on May 12, 2010. The Respondent attended the deposition. (Tr. 146-47).

At 1:12 p.m. on May 12, 2010, the Respondent sent an e-mail to Teague. The subject listed at the top of the e-mail was "question." In the e-mail, the Respondent asked "What do you think bilateral thoracic syndrome is worth." At 1:16 p. m., Teague replied "40 to 50 MAW [man as whole]??? Let me do a little checking?.. give me 10." Respondent sent another e-mail to Teague at 1:19 p.m., saying "No hurry. She had full duty release, no problems and is actually better than before (the problem seems to have started following an auto accident)." The next e-mail from Teague to the Respondent was sent at 8:49 a.m. on the following day, May 13, 2010. Teague's e-mail stated "I did some research in my old decisions. It seems I have written them anywhere from 20 MAW up to 45 MAW. Was there surgery?" The Respondent replied to Teague, "Yes surgery." Finally, Teague replied "I think 20/25 would probably be on par." (Tr. 148-49, 155-56; Resp. Ex. 3 at 1-2).

The Respondent acknowledged that, at the time she sent the above e-mail to Teague on May 12, 2010, she had the file in the Croghan case on her desk. (Tr. 154, 194). The Respondent maintained, however, that the question she asked Teague, as to what a bilateral thoracic syndrome is worth, was not related specifically to the Croghan case. She explained that "the best I can put together is that I was using the Croghan case to provide [Teague] with an example in order . . . to get an accurate range of value." (Tr. 154, 193, 195).

The Respondent acknowledged that some of the facts she relayed in her e-mail to Teague in May 2010 were actual facts in the Croghan case. Such facts included the employer's position

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that the injury followed "an auto accident;" there was a "full duty release, and there was "surgery." (Tr. 196-97, 199-200).

The Respondent gave a sworn statement to the ARDC on April 14, 2011 (Adm. Ex. 10), in which she stated that the her e-mail to Teague on May 12, 2010, was a general question and was not pertaining to a case she had in front of Teague. She testified that she did not make a connection between the above e-mail and the Croghan case when she gave her sworn statement. Thus, she said she believed she was truthful in her sworn statement. (Tr. 149-52, 197-98).

On June 4, 2011, the Respondent sent a letter to the ARDC (Adm. Ex. 11), in which she stated "as you know from prior review of my emails, this [Croghan] case was not the subject of any of the email correspondence between me and Ms. Teague." She said she believed the foregoing statement to be true at the time she made it. (Tr. 152). She explained "my intention by making that statement [in the letter] was that there was never an email sent saying, hey, this is about Deanna Croghan and here's what's going on, can you tell me what do you think this injury is worth." She acknowledged that her letter to the ARDC "could have been worded better." (Tr. 154-55). The Respondent further stated that she still does not believe her e-mails to Teague on May 12, 2010, specifically related to the Croghan case, but rather she was asking Teague a general question as the subject line of the e-mails stated. (Tr. 154).

By October 2011, when the Respondent gave a deposition in her disciplinary case, "it was clear that these e-mails, Respondent's Group Exhibit 3, could be taken as relating to Croghan." (Tr. 155).

Case No. 36 (Fisk case)

The Respondent testified that she represented the employer in the Fisk case, which was case number 36 on the Mt. Vernon docket of Arbitrator Teague. The claimant was represented

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by attorney Mark Hassakis. Mr. Hassakis' wife, Janet, worked in his law office. On October 28, 2010, at 9:27 a.m., Janet Hassakis sent an e-mail to the Respondent, with a copy to Teague, saying, in part, that "our goal would be to resolve the cases by year's end." The Respondent then sent an e-mail to Teague at 9:29 a.m., without sending a copy to Janet or Mark Hassakis. In her e-mail, the Respondent stated "That won't happen. It's already November. I have no records and no settlement demand. Not to mention, I've been waiting three months for a responses to an offer I made on another case. Think early spring." A few minutes later, at 9:31 a.m., Teague replied to the Respondent, without sending a copy to Janet or Mark Hassakis. Teague said in her e-mail "I think I will force a trial before early spring." (Tr. 161-63, 200; Res. Ex. 4 at 2).

The Respondent described the above exchange of e-mails with Teague as being "about scheduling." (Tr. 160).

The Respondent and Mark Hassakis were also opposing counsel, in a case before Teague in May 2009. On May 27, 2009, the Respondent sent an e-mail to Teague, in which she described Mark Hassakis as "an ass." Teague replied to the Respondent "yes, Mark is an ass." Hassakis was not sent a copy of either e-mail. (Tr. 201; Adm. Ex. 9 at 1-2).

As to her conduct, the Respondent testified that she did not believe, at the time, that her exchange of e-mails with Teague was improper or in violation of any ethical rule. However, she said she would now do things differently. (Tr. 113, 167). She also said she did not try to injure anyone or influence the outcome of any case. (Tr. 113). Finally, she said "I feel bad that I said those things," and she made "stupid mistakes." (Tr. 168).

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. Supreme Court Rule 753(c)(6); In re

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Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). This standard of proof requires a high level of certainty, which is greater than a preponderance of the evidence (i.e., more probably true than not true) but not as great as proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); In re Kakac, 07 SH 86, M.R. 23785 (May 18, 2010) (Review Bd. at 9). In determining whether the burden of proof has been satisfied, the Hearing Panel is to assess the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences from the evidence, and make factual findings based upon all of the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983 (1991).

Additionally, an admission in a pleading is a formal judicial admission that is binding on the party making it, may not be contradicted, has the effect of withdrawing the fact admitted from issue, and dispenses with the need for any proof of that fact. Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence to prove the facts so admitted. See In re Barry, 09 SH 5, M.R. 24439 (Mar. 21, 2011) (Hearing Bd. at 23); In re Hinterlong, 09 SH 46, M.R. 23811 (May 18, 2010) (Hearing Bd. at 9).

The evidence established that, in 2009 and 2010, the Respondent was a partner in the law firm of Hennessy and Roach, and represented employers in workers' compensation cases. Some of those cases were pending before Jennifer Teague, an arbitrator for the Illinois Workers' Compensation Commission. The Respondent and Teague were also good friends, socialized together, and frequently communicated by e-mail about personal matters. (Adm. Ex. 1). The misconduct charged in this case arises out of ex parte e-mails exchanged between the

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Respondent and Teague. Those e-mails pertained to cases pending before Teague and in which the Respondent represented one of the parties.

Count I

The Blakemore v. Walgreens Matter

In May 2009, the Blakemore v. Walgreens workers' compensation case was pending before Arbitrator Teague. The Respondent represented Walgreens, and attorney Darren Keith Short represented Blakemore. The Respondent admitted in her Answer that the following e-mails were exchanged between her and Teague as alleged in paragraphs 5 and 6 of the Amended Complaint.

On May 27, 2009, after part of the trial had been completed, the Respondent sent an ex parte e-mail to Teague, that is, without sending a copy thereof to Short. In her e-mail, the Respondent said that Short wanted to complete the trial on June 3d and that she had no problem with that. The Respondent also said in her e-mail: "Keith Short refuses to discuss settlement with me;" "I'm not sure what Keith is wanting at this point;" "I think I told you he demanded $50K . . . then wouldn't accept it after lunch;" "then he upped his demand to $80K, but said he hadn't talked to his client yet. WTF??" Teague responded in an ex parte e-mail, and said" "I think we should just finish the trial and you say F him," and "he's clearly jerking you around." (Amended Complaint, pars. 5 and 6).

Mr. Short testified he had agreed in advance that the Respondent could contact Teague about scheduling. He also said that, prior to the above e-mail, Teague was not aware of Short's demand for $80,000.

Rule 3.5(i) of the 1990 Illinois Rules of Professional Conduct, which was in effect in 2009, prohibited an attorney, in an adversary proceeding, from communicating "as to the merits

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of the cause with a judge or an official before whom the proceeding is pending." It is clear to us that, at the time the above e-mails were exchanged on May 27, 2009, there was an adversary workers' compensation proceeding pending and that Arbitrator Teague was "an official before whom the proceeding is pending." It is also clear that the Respondent's e-mail to Teague went far beyond scheduling, but addressed opposing counsel's conduct and demand. Her e-mail suggested, rather strongly, that the increase in opposing counsel's demand from $50,000 to $80,000 was without a reasonable basis. Her e-mail then ended with the cryptic comment "WTF??" Certainly the merits of a workers' compensation case include the amount of the award. The Respondent's criticism to the arbitrator about opposing counsel's demand, without his knowledge, went to the merits of the case. Thus, the Respondent violated Rule 3.5(i).

We also find that the above exchange of ex parte e-mails between the Respondent and Teague was prejudicial to the administration of justice. In her e-mail to Teague, the Respondent complained about her opposing counsel and portrayed him in a negative light. For example, the Respondent said Mr. Short refused to discuss settlement; he made a demand of $50,000, but then would not accept that amount; and he "upped his demand" without even talking with his client. Then, she concluded her e-mail with "WTF." In reply, Teague offered the Respondent advice about how to proceed, "finish the trial" and "say F him." Teague also made the negative comment about Mr. Short that "he's clearly jerking you around."

When an arbitrator and the attorney for one party make negative or otherwise disparaging remarks about the attorney for the other party, a serious question is presented as to the neutrality of the arbitrator and the overall fairness of the workers' compensation proceeding before that arbitrator. The Supreme Court has held that the administration of justice "means a fair and impartial tribunal," and anything that "compromises the fairness and impartiality of the tribunal .

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. . prejudices the administration of justice." In re Weinstein, 131 Ill. 2d 261, 269, 545 N.E.2d 725 (1989). The Court has also stated that "the administration of justice requires a tribunal that is impartial in appearance, as well as in fact." In re Lane, 127 Ill. 2d 90, 106, 535 N.E.2d 725 (1989). Because of the above e-mails, the proceedings before Arbitrator Teague were not "impartial in appearance."

The case of In re O'Sullivan, 2011PR00078, M.R. 24972 (Jan. 13, 2012), also involved an exchange of ex parte e-mails between an attorney for one party in a workers' compensation case and Arbitrator Teague. O'Sullivan, a friend of Teague, first informed Teague that the Illinois Attorney General, counsel for the opposing party, was "contesting compensability," and Teague replied "seriously????????." The attorney then replied "I think so too," and explained what she thought the "defense appears to be." The attorney engaged in conduct prejudicial to the administration of justice based upon the e-mails. (Petition to Impose Discipline on Consent at 3).

The Respondent testified that she did not intend to influence the outcome of any workers' compensation case, and argued there was no proof that any case was adversely affected by her conduct. As stated above, the administration of justice requires the appearance of impartiality and fairness, as well as the fact thereof. In In re Powell, 126 Ill. 2d 15, 533 N.E.2d 831 (1989), the respondent assisted a judge in obtaining a loan by having a client post the collateral for the loan. The respondent appeared before the judge on a motion for the disbursement of funds, which was granted. The case was later settled. The respondent contended that his conduct was not prejudicial to the administration of justice because "his client deserved to win on the merits" of the foregoing motion. The Supreme Court rejected the respondent's argument, stating:

We refuse to read this phrase so narrowly. The administration of justice requires a fair and impartial tribunal. When a party or his attorney performs favors for a

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judge before whom the attorney or his client is likely to appear, the fairness and impartiality of the tribunal is compromised and the administration of justice is prejudiced."

Powell, 126 Ill. 2d 126 Ill. 2d at 27.

In In re Alexander, 146 Ill. 2d 83, 585 N.E.2d 70 (1991), the respondent made a loan to a judge, a long-time friend. While the loan was outstanding, the judge appointed the respondent guardian ad litem in a case. The respondent was found to have engaged in conduct prejudicial to the administration of justice even though there was "no evidence anyone was prejudiced by [respondent's] conduct." The Court stated that "it is the appearance of impropriety and the fact that the integrity of the judiciary is impugned as a result of respondent's conduct which gives rise to a violation," and "the fact no one was prejudiced is not dispositive." Alexander, 146 Ill. 2d at 94-95.

In In re Cutright, 05 SH 106, the respondent prepared tax returns for a judge, without charging the judge for such work. When appearing before the judge, the respondent did not disclose the foregoing work to opposing counsel or litigants. There was no showing that any ruling by the judge was based on his relationship with the respondent. Nevertheless, the Hearing Board stated that the "appearance of impropriety is blatant in such a situation," and found that the respondent's conduct was prejudicial to the administration of justice. (Hearing Bd. at 35). The Hearing Board's findings were affirmed by the Review Board (Review Bd. at 5) and the Supreme Court In re Cutright, 233 Ill. 2d, 474, 481-83, 910 N.E.2d 581 (2009).

We also note the case of, In re Greanias, 01 SH 117, M.R. 19079 (Jan. 20, 2004), in which the respondent filed frivolous lawsuits against Commissioners of the Industrial Commission and attorneys appearing before them. There was no reasonable factual or evidentiary basis for the allegations in the lawsuits. By filing the lawsuits, the respondent engaged in conduct prejudicial to the administration of justice. The Hearing Board pointed out

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that "[b]y publicly charging fraud and corruption by the Commissioners of the Industrial Commission and attorneys who practice before that Commission, the Respondent acted to destroy public confidence in the Industrial Commission, the legal profession, and the administration of justice." Greanias, 01 SH 117 (Hearing Bd. at 44-45, 57, 65-66). The Supreme Court approved the Hearing Board Report.

Consequently, the Respondent's ex parte communications with Arbitrator Teague impugned the fairness, impartiality, and integrity of workers' compensation proceedings before Teague, and acted to destroy public confidence therein. As a result, the administration of justice was clearly prejudiced.

The Pound v. Henderson Trucking Matter

Pound v. Henderson Trucking was a workers' compensation case pending before Teague from January to June 2010. The Respondent represented Henderson Trucking, and attorney Lindsay Rakers represented Pounds. The Respondent admitted in her Answer that the following e-mails were exchanged between her and Teague as alleged in paragraphs 7, 8, and 15 through 19 of the Amended Complaint.

On January 29, 2010, Rakers sent an e-mail to the Respondent, pointing out a mistake in a deposition and indicating she would object to the mistaken reference. Without Rakers' knowledge or consent, the Respondent forwarded Rakers' e-mail to Teague and said "She is really starting to annoy me. Either let the report in or don't, but don't tell me I can admit it and then nitpick every line to find things to object to." Teague replied "all you have to do is object to going forward because you need a dep. That will cook her goose and she'll fall apart. She is annoying and a bad lawyer, I think."

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On February 8, 2010, Rakers sent an e-mail to the Respondent asking about the amount of medical that had been paid for Pound's back claim. Without Rakers' knowledge or consent, the Respondent forwarded Rakers' e-mail to Teague, and made the comment "Make it stop." Teague replied "OMG- I assume you are trying to settle."

On February 17, 2010, Rakers sent another question to the Respondent. Without Rakers' knowledge or consent, the Respondent forwarded Rakers' e-mail to Teague, and made the comment "Why does this have to be so painful?"

On March 10, 2010, Teague sent an ex parte e-mail to the Respondent, complaining about Rakers' "f'n exhibits- I can't figure out where the god damn records are and I am pissed!" The Respondent replied to Teague "Tell me about it!!! That was cluster trying to go through those and cite stuff." Teague relied to the Respondent "Oh yes, I know . . . that's why I was pitching a fit at the arbitration. She basically put in the records twice."

On March 31, 2010, Rakers sent an e-mail to the Respondent stating "I have authority to demand 30% MAW [man as whole]. Let me know." Without Rakers' knowledge or consent, the Respondent forwarded Rakers' e-mail to Teague, and stated "She's kidding right?" Teague replied "??." The Respondent then sent another ex parte e-mail to Teague, stating "I mean, it's a back sprain." Teague replied "minus like 25." Finally, the Respondent told Teague "That's what I was thinking."

Rule 3.5(b) of the Illinois Rules of Professional Conduct, which became effective on January 1, 2010, prohibits an attorney from communicating ex parte "during the proceeding" with the judge "or other official" unless authorized to do so by law or court order. A Comment to the Rule states that "[d]uring the proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding."

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It is clear to us that the above ex parte communications were exchanged between the Respondent and Teague during a workers' compensation proceeding, at which Teague was serving in an official capacity as the arbitrator. The ex parte communications were not authorized by law or court order and even discussed the potential award to be made by Teague. Consequently, the Respondent clearly violated Rule 3.5(b).

We also find that the Respondent engaged in conduct that was prejudicial to the administration of justice. As discussed above in the Blakemore v. Walgreens matter, when an arbitrator and the attorney for one party communicate ex parte and make negative or otherwise disparaging remarks about the attorney for the other party or discuss the merits of the case, there is a serious question about the neutrality of the arbitrator and the overall fairness of the worker's compensation proceedings before that arbitrator. The administration of justice "means a fair and impartial tribunal" and "requires a tribunal that is impartial in appearance, as well as in fact." Weinstein, 131 Ill. 2d at 269; Lane, 127 Ill. 2d at 106.

In the above, ex parte e-mails exchanged from January 29, 2010 to March 31, 2010, in the Pound case, both the Respondent and Teague complained about Ms. Rakers, the attorney for the other party, criticized her conduct, made disparaging remarks about her, and discussed the possible value of the case for Rakers' client. As a result, public confidence in the fairness, impartiality, and integrity of workers' compensation proceedings before Teague was compromised, and, the administration of justice was clearly prejudiced. See Powell, 126 Ill. 2d at 27; Alexander, 146 Ill. 2d at 94-95; O'Sullivan, 2011PR00078 (Petition to Impose Discipline on Consent at 3).

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The Croghan v. Walgreens Matter

The worker's compensation case of Croghan v. Walgreens was filed in 2008, and is still pending. The Respondent represented Walgreens, and attorney Fritz Levenhagen represented the claimant. The case was before Arbitrator Teague in 2010. Croghan's claim was based upon a thoracic outlet syndrome injury. Both Levenhagen and the Respondent described thoracic outlet syndrome as a rare injury. (Tr. 24; Adm. Ex. 10 at 1). Walgreens disputed the claim on the ground that Croghan's injury was the result of an automobile accident. From the time the case was filed, through May 2010, there had been no conversation about the case in front of Teague, except to continue it. The Respondent admitted in her Answer that the following e-mails were exchanged between her and Teague as alleged in paragraph 10 of the Amended Complaint.

Attorney Levenhagen scheduled a deposition of an expert witness, Dr. Thompson, at 2:00 p.m. on May 12, 2010. The Respondent attended the deposition. (Tr. 146-47). At 1:12 p.m. on May 12, 2010, while the file in the Croghan case was on her desk, the Respondent sent an ex parte e-mail to Teague, asking "what do you think bilateral thoracic syndrome is worth." At 1:16 p. m., Teague replied "40 to 50 MAW [man as whole]??? Let me do a little checking?.. give me 10." Respondent sent another e-mail to Teague at 1:19 p.m., saying "No hurry. She had full duty release, no problems and is actually better than before (the problem seems to have started following an auto accident)." The next e-mail from Teague to the Respondent was sent at 8:49 a.m. on the following day. Teague's e-mail stated "I did some research in my old decisions. It seems I have written them anywhere from 20 MAW up to 45 MAW. Was there surgery?" The Respondent replied to Teague, "Yes surgery." Finally, Teague replied "I think 20/25 would probably be on par."

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The Respondent testified that "I still don't feel the original e-mail itself, the question, what do you think this is worth, related specifically to this [Croghan] case." The Respondent explained that someone in her office asked her about the value of a thoracic outlet syndrome injury, and she decided to send an e-mail to Teague and asked her. She further explained that "the best I can put together is that I was using the Croghan case to provide [Teague] with an example in order . . . to get an accurate range of value." (Tr. 154, 193, 195; Resp. Ex. 5 at 20-21).

Contrary to the Respondent's testimony, the evidence clearly and convincingly established that the above e-mails from the Respondent to Teague on May 12 and 13, 2010, pertained specifically to the Croghan case. When she sent the first e-mail to Teague on May 12, 2010, asking Teague what a bilateral thoracic syndrome injury is worth, the Respondent had the file for the Croghan case on her desk and was certainly looking at it, in light of the fact that a deposition in that case was to be taken within an hour. Her contention that, at about the same time, someone in her office had asked her about the value of a thoracic outlet syndrome injury is an unlikely coincidence. A bilateral thoracic syndrome injury is a rare injury, but was the injury claimed in the Croghan case. The Respondent's second e-mail to Teague on May 12, 2010, said that "she" had a "full duty release," and that the "problem seems to have started following an auto accident." Deana Croghan is a woman, she had received a full duty release, and the employer, Respondent's client, disputed the claim contending that Croghan's condition resulted from a car accident. The Respondent's final e-mail to Teague on that date said that the person had "surgery," which was also a fact in the Croghan case. Furthermore, when attorney Levenhagen subsequently read the foregoing e-mails in February 2011, he recognized them as being about the Croghan case. Thus, we find that the Respondent was knowingly and

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intentionally inquiring about the Croghan case in her exchange of e-mails with Teague on May 12 and 13, 2010.

We find that the Respondent violated Rule 3.5(b) of the Illinois Rules of Professional Conduct (2010), which prohibits an attorney from communicating ex parte "during the proceeding" with the judge "or other official" unless authorized to do so by law or court order. It is clear to us that the above ex parte communications were unauthorized and were exchanged between the Respondent and Teague during the Croghan workers' compensation proceeding, at which Teague was serving in an official capacity as the arbitrator.

We also find that the Respondent engaged in conduct that was prejudicial to the administration of justice. The administration of justice "means a fair and impartial tribunal" and "requires a tribunal that is impartial in appearance, as well as in fact." Weinstein, 131 Ill. 2d at 269, Lane, 127 Ill. 2d at 106. When an arbitrator and the attorney for one party communicate ex parte and discuss the facts and possible value of a pending case, there is a serious question about the neutrality of the arbitrator and the overall fairness of the worker's compensation proceedings before that arbitrator. We agree with attorney Levenhagen's testimony that it was "inappropriate and wrong for Ms. Nadenbush to contact arbitrator Teague directly about Ms. Croghan's case without my knowledge and inject her primary defense in the case in front of the arbitrator without me knowing it."

Case No. 36 (Fisk Case)

Case number 36, the Fisk Case, was a workers' compensation case before Arbitrator Teague in 2009 and 2010. The Respondent represented the employer, and attorney Mark Hassakis represented the claimant. The Respondent admitted that she and Teague exchanged the

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following e-mails pertaining to attorney Hassakis, as set out in paragraphs 11, 12 and 20 of the Amended Complaint.

On October 28, 2010, at 9:27 a.m., Janet Hassakis, the wife and employee of Mark Hassakis, sent an e-mail to the Respondent, with a copy to Teague, stating, in part, that "our goal would be to resolve the cases by year's end." The Respondent then sent an ex parte e-mail to Teague at 9:29 a.m., that is, neither Janet nor Mark Hassakis was sent a copy. In her e-mail, the Respondent stated "that won't happen. It's already November. I have no records and no settlement demand. Not to mention, I've been waiting three months for a response to an offer I made on another case. Think early spring." A few minutes later, at 9:31 a.m., Teague replied to the Respondent by ex parte e-mail, saying. "I think I will force a trial before early spring."

Based upon the above e-mails, we find that the Respondent violated Rule 3.5(b) of the Illinois Rules of Professional Conduct (2010), which prohibits an attorney from communicating ex parte "during the proceeding" with the judge "or other official" unless authorized to do so by law or court order. It is clear to us that the above ex parte communications were exchanged between the Respondent and Teague during a workers' compensation proceeding, at which Teague was serving in an official capacity as the arbitrator, and were not authorized by law or court order.

We also find that the Respondent engaged in conduct that was prejudicial to the administration of justice. In her e-mail to Teague, the Respondent made disparaging comments about opposing counsel by indicating she had not received records or a settlement demand from him, and that she had been waiting three months for a response to an offer she made to him in another case. As discussed above in the Blakemore v. Walgreens matter, when an arbitrator and the attorney for one party communicate ex parte and make negative or otherwise disparaging

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remarks about the attorney for the other party, a serious question arises about the neutrality of the arbitrator and the overall fairness of the worker's compensation proceeding before that arbitrator. The administration of justice "means a fair and impartial tribunal" and "requires a tribunal that is impartial in appearance, as well as in fact." Weinstein, 131 Ill. 2d at 269; Lane, 127 Ill. 2d at 106.

On May 27, 2009, the Respondent sent an e-mail to Teague, in which she described Mark Hassakis, as "an ass." Teague replied to the Respondent "yes, Mark is an ass." Hassakis was not sent a copy of either e-mail. By making disparaging comments to the arbitrator about counsel for the opposing party, the Respondent engaged in conduct that was prejudicial to the administration of justice.

Finally, one of the charges of misconduct in Count I is that the Respondent engaged 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. (Complaint, pars. 21c and 22c). In the recent opinion of In re Thomas, 2012 IL 113035, par. 92, the Supreme Court stated:

Supreme Court Rule 770 is not itself a Rule of Professional Conduct. Rather, it is contained in article VII, part B, of our rules, which governs "Registration and Discipline of Attorneys." Rule 770 is titled "Types of Discipline" and provides that "[c]onduct of attorneys which violates the Rules of Professional Conduct contained in Article VIII of these rules or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute shall be grounds for discipline by the court." Ill. S. Ct. Rule 770 (eff. Apr. 1, 2004). The rule then lists eight levels of discipline ranging from disbarment to reprimand. Thus, one does not "violate" Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct. We conclude that based on his violations of Rules 5.5(a), 8.4(a)(4), and 8.4(a)(5), respondent is subject to discipline by this court pursuant to Rule 770.

Thus, based upon the holding in Thomas, we conclude that the Respondent did not "violate" Rule 770 as charged in the Complaint.

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In summary, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct: (1) in an adversary proceeding, communicated ex parte as to the merits of the cause with an official before whom the proceeding is pending, in violation of Rule 3.5(i) of the Illinois Rules of Professional Conduct (1990), by reason of her conduct in the Blakemore v. Walgreens matter, paragraphs 5 and 6 of the Amended Complaint; (2) communicated ex parte with an official during a proceeding, in violation of Rule 3.5 (b) of the Rules of Professional Conduct (2010), by reason of her conduct in the Pound v. Henderson matter, paragraphs 7, 8, and 15 through 19 of the Amended Complaint, and in the Croghan v. Walgreens matter, paragraphs 9 and 10 of the Amended Complaint; (3) engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Rules of Professional Conduct (1990), by reason of her conduct in the Blakemore v. Walgreens matter, paragraphs 5 and 6 of the Amended Complaint, and in the Fisk matter, paragraph 20 of the Amended Complaint; and (4) engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Rules of Professional Conduct (2010), by reason of her conduct in the Pound v. Henderson matter, paragraphs 7, 8, and 15 through 19 of the Amended Complaint, and in the Croghan v. Walgreens matter, paragraphs 9 and 10 of the Amended Complaint.

Count II

Paragraphs 23 through 25 in Count II of the Amended Complaint allege that the Respondent knowingly answered a question falsely during her sworn statement to the ARDC on April 14, 2011.

During her sworn statement, Administrator's counsel referred the Respondent to an e-mail on the "Bottom of page 9," and asked "Question, this is general?" The Respondent answered "correct." Administrator's counsel then asked "this is not a case you have in front of

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Teague?" and the Respondent replied "no." (Tr. 151; Adm. Ex. 10). The Amended Complaint alleges that the foregoing answer was knowingly false because the e-mail shown to the Respondent pertained to the case of Croghan v. Walgreens, which was pending before Teague. At the disciplinary hearing, the Respondent testified that she did not make a connection between the e-mail shown to her and the Croghan case at the time of her sworn statement.

The evidence does not show what e-mail the Respondent was shown during her sworn statement. The 2-pages of the sworn statement that are in evidence (Adm. Ex. 10) show that Administrator's counsel referred the Respondent to the "bottom of page 9." However, we do not know what page 9 was being referred to or what was on that page 9. Paragraph 23 of the Amended Complaint refers only to a single e-mail as being shown to the Respondent at her sworn statement, and says that e-mail is "described in Paragraphs Nine and Ten" of the Amended Complaint. Paragraphs 9 and 10 of the Amended Complaint pertain to the e-mails in the Croghan v. Walgreens matter, discussed in Count I, but mention three e-mails, two sent by the Respondent and one sent by Teague on May 12, 2010.

As discussed in Count I, it is clear that the Respondent's exchange of e-mails with Teague on May 12, and 13, 2010, when considered together, pertain to the Croghan case. However, if only one of the e-mails was shown to the Respondent during her sworn statement, we find it reasonably possible that the Respondent did not recollect, on the spur of the moment, the context in which that e-mail was sent. There were no follow-up questions and no other related e-mails were apparently shown to her. Thus, the evidence was insufficient to prove by clear and convincing evidence that the Respondent knowingly gave a false answer during her sworn statement.

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The Amended Complaint charges in paragraphs 26 through 29 of Count II that the Respondent knowingly made a false statement in a letter she sent to the ARDC on June 4, 2011.

On June 2, 2011, Administrator's counsel sent a letter the Respondent requesting further information about the Croghan case, and enclosed the complaint that attorney Levenhagen made against her. Levenhagen complained that the ex parte e-mails exchanged between the Respondent and Teague on May 12 and 13, 2010, pertained to the Croghan case and were inappropriate. (Tr. 35-36). In her response to the ARDC, on June 4, 2011, the Respondent said:

Mr. Levenhagen is accusing me of discussing the Deanna Croghan case with Ms. Teague. As you know from prior review of my e-mails, this case was not the subject of any of the e-mail correspondence between me and Ms. Teague.

(Adm. Ex. 11)

We find that the Respondent's statement in the above letter that the Croghan case was not the subject of any e-mails between her and Teague was false and she knew it was false. We find it impossible to believe that, if the Respondent had reviewed the e-mail correspondence between her and Teague on May 12 and 13, 2010, she would not know it pertained to the Croghan case. On the other hand, if she did not review the e-mails, following the receipt of Levenhagen's complaint and the letter from Administrator's counsel, then she knowingly and purposefully misrepresented to the ARDC that she had reviewed the e-mails and had a basis for making the affirmative representation that there was no correspondence pertaining to the Croghan case. See In re Thomas, 2012 IL 113035, pars. 87-90; In re Yamaguchi, 118 Ill. 2d 417, 425-26, 515 N.E.2d 1235 (1987); In re Montalvo, 98 SH 11, M.R. 16865 (Sept. 22, 2000) (Review Bd. at 12).

We also find that the making of a false statement to the ARDC during an investigation is prejudicial to the administration of justice. It is necessary for Administrator's counsel to perform additional work due to an attorney's false representation during a disciplinary investigation.

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Therefore, we find that that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in paragraphs 26-29, 30(a), 30 (b), and 30(c) of Count II of the Amended Complaint: (a) knowingly made a false statement of material fact in connection with a lawyer disciplinary matter, in violation of Rule 8.1(a)(1) of the Illinois Rules of Professional Conduct (2010); (b) engaged in dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c); and (c) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d).

We find that the charges of misconduct based upon paragraphs 23 through 25 in Count II of the Amended Complaint were not proved by clear and convincing evidence. We also conclude, based upon the decision in, In re Thomas, 2012 IL 113035, par. 92, discussed in Count I, that the Respondent did not "violate" Rule 770 as charged in paragraph 30(d) of the Amended Complaint.

RECOMMENDATION

The purpose of the attorney disciplinary system is not to punish the attorney for his or her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961 (2006). In determining the appropriate sanction, we must consider the nature and seriousness of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000); Gorecki, 208 Ill. 2d at 361.

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Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994).

In this case the Administrator requested a sanction of suspension for at least six months. (Tr. 221). The Respondent contended that a suspension is not warranted. (Tr.226).

The Respondent's misconduct is serious. As proved in Count I, she knowingly and improperly exchanged with Arbitrator Teague ex parte e-mails that pertained to cases pending before Teague and in which the Respondent represented one of the parties. In their ex parte e-mails, they criticized and otherwise made other disparaging comments about the Respondent's opposing counsels, and discussed the merits of pending cases. By doing so, the Respondent acted to prejudice the administration of justice in four separate workers' compensation cases. Also, as proved in Count II, the Respondent knowingly made a false statement in a letter she sent to the ARDC.

A basic requirement for maintaining public confidence in a legal system, including workers' compensation proceedings, is that the presiding official, such as an arbitrator, be truly impartial and fair to all parties and counsel. As discussed previously, the Supreme Court could not have made it more clear or definite, when it stated "if the administration of justice means anything, it means a fair and impartial tribunal," and anything that "compromises the fairness and impartiality of the tribunal . . . prejudices the administration of justice;" and that "the administration of justice requires a tribunal that is impartial in appearance, as well as in fact." In re Weinstein, 131 Ill. 2d 261, 269, 545 N.E.2d 725 (1989); In re Lane, 127 Ill. 2d 90, 106, 535 N.E.2d 866 (1989). An attorney has a duty to protect the integrity of the legal system (See In re

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Gottlieb, 109 Ill. 2d 267, 270, 486 N.E.2d 921 (1985)); however, the Respondent's misconduct damaged the public's trust in the legal system.

The Respondent testified that she did not believe, at the time, that her exchange of e-mails with Teague was improper or in violation of any ethical rule. In cases in which attorneys made loans to a judge, the Supreme Court said that "common sense and sound judgment should have guided the respondent in his dealings with [the judge]." Weinstein, 131 Ill. 2d at 270; In re Alexander, 146 Ill. 2d 83, 96, 585 N.E.2d 70 (1992). The Respondent, an attorney with about 12 years of experience, failed to be guided by "common sense and sound judgment" in her communications with Arbitrator Teague.

The Supreme Court has also emphasized the seriousness of an attorney providing false information to, or failing to cooperate with, the ARDC. See In re Bell, 147 Ill. 2d 15, 39, 588 N.E.2d 1093 (1992); In re Brady, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976). In In re Mendelson, 95 CH 339, M.R. 12894 (Nov. 26, 1996), for example, the Review Board said "false statements by an attorney constitute serious misconduct, and this is particularly true when an attorney makes false statements to the ARDC." Mendelson, 95 CH 339 (Review Bd. at 12).

There is aggravation in this case. The Respondent's misconduct did not consist of a single incident or single lapse of sound judgment. Rather her improper exchange of ex parte e-mails with the arbitrator involved four different cases over a lengthy period of time, from May 2009 to October 2010. Also, the Respondent did not show she was sorry or remorseful for her misconduct and the adverse affect it has had on the legal profession or the Illinois Workers' Compensation Commission. In fact, we found many of her responses to be glib in that regard. The Respondent also failed to demonstrate that she fully understands the nature or seriousness of

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her misconduct. At most, she ultimately acknowledged that some of her comments in the e-mails were "inappropriate" and "less than professional."

In response to an inquiry from a Panel Member, the Respondent said "There have been multiple newspaper articles about not just this situation but the work comp system in general. And yes I think it does cast a negative light." She further responded "I understand . . . from where you sit as a non-lawyer and as someone who's reading this outside the box and outside of, you know, newspaper articles, it does look bad. I don't disagree with you. It does look bad." (Tr. 206, 208). In In re Armentrout, 99 Ill. 2d 242, 252, 457 N.E.2d 1262 (1983), the Supreme Court stated the following in considering the appropriate sanction.

It is clear, too, that the inevitable effect of the widespread publicity regarding respondents' misconduct and the ensuing criminal proceedings was to bring the legal profession into disrepute. While the immediate and major impact is upon those directly involved, the ripples, as with a stone cast into a pond, affect the whole.

Additionally, the Respondent was not candid in her testimony by insisting that the question she asked Teague in the e-mail on May 12, 2010, about what a bilateral thoracic syndrome is worth, was not related specifically to the Croghan case. (Tr. 154, 193-95). There was clear and convincing evidence to the contrary. In Gorecki, 208 Ill. 2d at 366, the Supreme Court stated that "a lack of candor before the Hearing Board is a factor that may be considered in aggravation."

There is also mitigation in this case. The Respondent has been licensed to practice law in Illinois since 1997, and has no previous discipline. An attorney who has known her for many years testified favorably as to her reputation for truthfulness and veracity. Further, we found no proof that the Respondent acted with a corrupt motive or with the intent to obtain any favorable ruling by her ex parte e-mails with the arbitrator. See In re Topper, 135 Ill. 2d 331, 349-50, 553 N.E.2d 306 (1990) ("respondent did not act with corrupt or dishonest motive and was not

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attempting to bribe [the judge] to insure a favorable ruling" when he made a loan to the judge). We also consider in mitigation that the Respondent was discharged from her employment at a law firm, and has "suffered substantial financial and professional loss." In Armentrout, 99 Ill. 2d at 256.

We considered the cases discussed below in determining the appropriate sanction in this case.

In In re O'Sullivan, 2011PR00078, M.R. 24972 (Jan. 13, 2012), the Supreme Court allowed a Petition to Impose Discipline on Consent, and imposed a censure. The respondent's misconduct arose out of her exchange of ex parte e-mails with Arbitrator Jennifer Teague. The e-mails pertained to the merits of a workers' compensation case pending before Teague, in which the respondent represented the claimant. In the e-mails, the respondent informed Teague that the Attorney General, who was representing the employer, was contesting compensability. Teague replied "seriously" and "I cannot believe they are bringing this on themselves." Respondent then replied "I think so too," and went on to explain what the "defense appears to be." In mitigation, the respondent was licensed to practice in Illinois in 1999 and had no prior discipline; five character witnesses were prepared to testify as to her good reputation for honesty and integrity; she fully cooperated; and she expressed regret for her misconduct. (Petition to Impose Discipline on Consent at 2-4).

In In re Barringer, 2011PR00079, the Hearing Board Report was filed on June 14, 2012. The hearing panel found that Barringer engaged in conduct prejudicial to the administration of justice based upon her ex parte e-mails with Arbitrator Jennifer Teague. In one matter, Barringer made disparaging comments to Teague about a claimant acting pro se and, in another matter, improperly communicated ex parte with Teague and made disparaging comments about

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opposing counsel. Barringer, similar to the Respondent in this case, did not recognize or fully understand her misconduct. Also, as in the case before us, Barringer had no prior misconduct and presented one character witness. Barringer's misconduct did not include making any false statement, as in the case before us. The hearing panel recommended that Barringer be censured and be required to successfully complete the Attorney Registration and Disciplinary Commission Professionalism Seminar within one (1) year of the entry of the Supreme Court's final order of discipline. The Hearing Board's recommendation is pending for final order of the Supreme Court.

In In re Stevenson, 90 CH 351 (Feb. 4, 1991), a reprimand was imposed by the Hearing Board. While representing a party before the Industrial Commission, the respondent had an ex parte conversation with the commissioner assigned to the case, in regard to a continuance requested by the respondent. Subsequently, the respondent wrote a letter, in which he said the commissioner "is a long-time member of my workers' compensation committee at the Illinois Manufacturer's Association and a good friend." The respondent acknowledged that his letter implied that he was "able to influence improperly a tribunal or public official." There was "no evidence that [respondent's] conduct improperly influenced the Commission's decision in the workers' compensation matter." The respondent had no prior discipline during his 40 years of practicing law.

In In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008), cited by the Respondent, the respondent intentionally failed to disclose material facts to a tribunal for the purpose of obtaining a favorable ruling, and then she knowingly made a false statement to the ARDC. (Hearing Bd. at 37). The respondent's conduct toward the tribunal was not self-serving and did not involve a corrupt motive, but rather she "acted out of overzealous representation that clouded her

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judgment." Her false statement to the ARDC was self-serving, but was not planned in advance. Rather, "on the spur of the moment [she] acted to protect herself without thinking about the wrongfulness of making a false or misleading statement to the ARDC." Finally, the respondent recognized she made serious mistakes, was apologetic, and she her conduct was "a slap in the face to the Illinois Judiciary." (Hearing Bd. at 37-38). The respondent was suspended for 90 days and was required to successfully complete a professionalism course within six months.

In In re Cosgrove, 01 CH 76, M.R. 19629 (Sept. 27, 2004), cited by the Administrator, a censure was imposed. The respondent was an assistant state's attorney assigned to a courtroom that had a call of about 200 misdemeanor and traffic cases each day. Prior to a call, the judge presiding told the respondent that a judge friend had called about a certain case on the call, the Cress overweight truck matter, and asked the respondent to "look at the case and see what he could do, SOL it or whatever." When the Cress case was called, the respondent stated, falsely, "I don't think I'm going to be able to meet my burden of proof in this matter, Motion State SOL." The judge granted the motion. In mitigation, the respondent had a "limited opportunity to reflect on the proper course of conduct and determine how to respond" to the judge; the misconduct was an isolated act; he had no prior discipline; he acknowledged his misconduct and expressed remorse; and his misconduct "already had a significant adverse impact upon him." (Review Bd. at 13-14). Unlike in Cosgrove, the Respondent in the case before us had ample opportunity to reflect on her actions over the 17 months in which she exchanged ex parte e-mails with Teague.

In In re Bemis, 938 P.2d 11201 (Ariz. 1997), cited by the Administrator, the attorney represented a party in a domestic relations case and his motion to vacate a judgment was denied. When opposing counsel failed to draft the order for the court, the respondent did so. The order he prepared went far beyond the court's rulings, and "was sarcastic in tone and worded to make the

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judge look bad." When the judge refused to sign the order, the respondent attempted to speak with the judge ex parte. In a separate case, the respondent also sought to speak with a judge ex parte after the judge issued a certain order. It was found that the respondent's attempts to speak with the judges ex parte were "negligent rather than knowing." The respondent thought, incorrectly, "that ex parte communications are improper only when their purpose is to gain an unfair advantage." It was also found that the respondent's preparation of the proposed order was "negligent, careless, and sloppy, but not intentional." The respondent was not previously disciplined, but "still fails to recognize the wrongful nature of his conduct." The respondent was censured and placed on probation for one year, with conditions that he attend a professionalism course and work with a practice monitor.

In In re Ragatz, 429 N.W.2d 488 (Wis. 1988), also cited by the Administrator, the respondent had ex parte communications with a judge in a pending case. In doing so the respondent made a conscious effort not to include opposing counsel and "intended to affect the outcome of a proceeding." A suspension of 60 days was imposed.

In In re Wilder, 764 N.E.2d 617 (Ind. 2002), also cited by the Administrator, the respondent had a conflict of interest when he represented a certain client and, in a separate case, had an impermissible ex parte meeting with a judge. A suspension of three days was imposed.

After considering the nature of the Respondent's misconduct, the aggravating and mitigating factors, the cases discussed above, and the purpose of the disciplinary system, we conclude that a suspension is necessary to safeguard the public and to maintain the integrity of the legal profession. We also believe it is necessary for the Respondent to successfully complete a professionalism course.

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Therefore, we recommend that the Respondent, Caryn H. Nadenbush, be suspended from the practice of law for a period of 90 days and be required to successfully complete the Attorney Registration and Disciplinary Commission Professionalism Seminar within one (1) year of the entry of the Supreme Court's final order of discipline.

Respectfully Submitted,

Leo H. Konzen
Randall B. Rosenbaum
Albert O. Eck, Jr.

CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on July 6, 2012.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois