Filed February 4, 2013
In re Robert E. Kinchen
Commission No. 2011PR00067
Synopsis of Hearing Board Report and Recommendation
The Administrator's two-count complaint against Respondent involved his representation of Talana Williams against the Cook County Forest Preserve District. The Administrator charged that Respondent represented Williams in connection with an employment matter in which Respondent had participated personally and substantially while employed by the Forest Preserve District, filed pleadings on behalf of Williams at a time when his name had been removed from the master roll of attorneys in Illinois, used the name of another attorney (without that attorney's knowledge) to file two lawsuits, misled two courts regarding the other attorney's involvement in the cases, and engaged in dishonest conduct.
The Hearing Board found that Respondent represented Williams in connection with a matter in which he had participated personally and substantially as a public officer or employee and that he engaged in conduct prejudicial to the administration of justice, but found that the remaining charges of unauthorized practice of law, false statements to a tribunal and dishonest conduct were not proved by clear and convincing evidence.
The Hearing Board recommended that Respondent be censured for the misconduct that was proved.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
ROBERT E. KINCHEN,
Commission No. 2011PR00067
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on July 11, 2012 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of Lon M. Richey, Chair, Rebecca J. McDade and Mark Fitzgerald. Gina M. Abbatemarco represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Robert E. Kinchen appeared and was represented by Mitchell C. Ex.
On June 27, 2011 the Administrator filed a two-count Complaint against Respondent and on June 14, 2012 a First Amended Complaint was filed. Both counts of the Amended Complaint (hereinafter "Complaint") involve Respondent's representation of Talana Williams against the Cook County Forest Preserve District. Counts I and II alleged Respondent represented Williams in connection with an employment matter in which Respondent had participated while employed by the Forest Preserve District and filed pleadings at a time when his name had been removed from the master roll of attorneys in Illinois. Count II further alleged Respondent used the name
of another attorney, without that attorney's knowledge, to file the lawsuits on behalf of Williams, and by doing so intended to mislead two courts regarding the other attorney's involvement in the case.
Respondent admitted he represented Williams in two suits against the Forest Preserve District after he was no longer registered to practice in Illinois, and admitted signing or affixing another attorney's name to the complaints. He denied he was personally and substantially involved in Williams' employment issues when he worked for the Forest Preserve District, denied engaging in the unauthorized practice of law, denied signing another attorney's name to pleadings without authority, denied making any misrepresentations to the Court, and denied all charges of professional misconduct.
The Administrator called Respondent as a witness, presented the testimony of Mazie Harris, Paul Dahlquist, Talana Williams, and Dennis White, and offered ten exhibits which were admitted into evidence. Respondent testified on his own behalf, called Pia Davis, Talana Williams and George Ashford as witnesses, and presented three exhibits which were admitted into evidence.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Evidence Considered
In March 2004 Respondent became chief legal counsel for the Cook County Forest Preserve District and in that position supervised the attorneys and support staff in the legal
department. The department attorneys handled litigation and other matters and gave legal advice to the human resources department. Respondent denied handling matters involving the EEOC or Department of Human Rights. With respect to employee discipline issues, Respondent supervised individuals who oversaw the disciplinary process, and personally made two recommendations of discipline regarding employees in his department. (Tr. 154-58).
While serving as chief counsel, Respondent was told by the head of the finance department that Talana Williams, an employee who had been working in the finance department since 2005, would be moved to the legal department to separate her from another employee with whom she had an altercation. Respondent had previously heard about the altercation from his secretary. Williams believed everyone knew the circumstances surrounding her move. (Tr. 83, 89, 107, 162, 200)
When Williams began working in the legal department in April 2006, Respondent was her direct supervisor. Williams' duties included research projects, performing cost assessments, and determining how to find sponsors for the Forest Preserve. Her position was then included in the 2007 budget for the legal department, which Respondent helped to prepare. Williams stated Respondent was aware of her performance as an employee during the time he supervised her. (Tr. 84, 86-89, 102, 160-64; Adm. Exs. 1, 10).
On or about December 19, 2006, Respondent prepared a memo to the human resources department in which he summarized the circumstances surrounding Williams' transfer and his discussions with the chief financial officer regarding Williams' position change as it related to the budget. In his memo he concluded that any action taken by the Forest Preserve District which resulted in William's termination could be viewed as retaliation, and advised that a solution should be found that did not involve terminating Williams. Respondent testified the
latter statement was not "legal advice" because it was not directed to a client. Regarding the typewritten words "CONFIDENTIAL ATTORNEY CLIENT" on the first page of the memo, Respondent stated the designation was part of the template he used to draft the document. (Tr. 165-68; 219-20; Adm. Ex. 1).
Respondent continued to serve as chief counsel of the Forest Preserve District until June 7, 2007, after which he moved to Arkansas. After Respondent's departure, Dennis White became chief counsel and continues to serve in that position. White testified he is responsible for providing legal advice and counsel to the president and commissioners of the Forest Preserve District and to the department heads and other staff employees. He is in charge of the legal department, which consists of four other attorneys and seven or eight staff members. In his role as chief attorney, White has been involved in employee disciplinary matters and termination proceedings, and he submits an annual budget. He is Talana Williams' direct supervisor. (Tr. 87, 102-103, 125-28, 155, 169).
Shortly after White began work with the Forest Preserve District, he became aware of the circumstances surrounding Williams' transfer to the legal department. At that time Williams did not have a job description and was not performing any particular duties, but White tried to find appropriate duties for her. White was aware that Williams had asserted numerous claims against the Forest Preserve District. (Tr. 127-29, 147).
In the fall of 2009, Williams obtained Respondent's telephone number and contacted him regarding problems she was having with White. Williams believed, as a budget matter, White wanted her out of the legal department so he could bring in a paralegal. Williams advised Respondent she was being harassed and she hoped Respondent could represent her. She turned to Respondent for representation because she knew him, trusted him and felt comfortable talking
to him about her personal circumstances. Williams had also discussed her employment issues with attorney Maize Harris, a friend from college. (Tr. 88, 90-91, 101, 107-109, 121).
Respondent recalled Williams contacted him in 2009 because the human resources director of the Forest Preserve District had circulated a memo with information regarding Williams' personal medical information without her consent. Subsequently, she told him of attempts to terminate her employment. Respondent agreed to represent Williams and in October 2009, he wrote a letter on Williams' behalf to the human resources director asserting a violation of Williams' privacy rights and proposing a settlement of the matter. (Tr. 169-70, 195-96; Adm. Ex. 2).
Respondent acknowledged he never advised Williams he would not represent her because he had previously been her direct supervisor, and never contacted the Forest Preserve District for consent to represent Williams. Williams confirmed that Respondent did not advise her of any conflict, and stated they had no fee agreement other than the fact Williams would be paying for court costs. (Tr. 89, 173).
In December 2009 Respondent filed a suit on behalf of Williams against the Forest Preserve District in the United Stated District Court for the Northern District of Illinois. The complaint, which asserted causes of action for creation of a hostile work environment, discriminatory treatment on the basis of race, and interference with a contract of employment, included factual allegations relating to Williams' assault by a co-worker in 2005, her move to the legal department, and the inclusion of her position in the 2007 legal department budget. Respondent acknowledged each of those events occurred when he was the chief legal counsel of the Forest Preserve District; he had summarized Williams' transfer in his December 2006 memo; and the budget move occurred when he was Williams' supervisor. He noted that the allegations
were intended as background information to show how Williams' came to work for the legal department, and denied they were the basis for any of her claims or were asserted to show any pattern of conduct. He stated Williams' claims related to attempts by White, and the Forest Preserve District as White's employer, to terminate her employment. (Tr. 173, 179-80, 197-99, 219-20; Adm. Ex. 5).
When Respondent was asked if he had any concerns about suing his former employer on behalf of a former employee, he stated he reviewed information provided by Williams and concluded her claims did not relate to any issue he had been involved in while working for the Forest Preserve District. He noted that during his tenure as chief counsel, Williams never raised an issue that she was harassed because of a hostile work environment and, when he supervised Williams, he never participated in any matters that had anything to do with the allegations in the complaint. Respondent denied that his December 2006 memo relating to Williams' transfer to the legal department had anything to do with the claims he asserted on her behalf. Respondent also understood, based on conversations with two other attorneys who also represented former employees against the County and the Forest Preserve District, that the Forest Preserve District deemed the passage of two years to be sufficient. When Respondent was asked if he was concerned he might be called as a witness in Williams' cases, he stated any information he had would be background and not relevant to any of her claims. He considered that issue, however, when he later decided he could no longer represent Williams. In June 2010 he advised the court in he would not be representing Williams and his subsequent motion to withdraw was granted in January 2010. (Tr. 170-71, 173, 199-200; Adm. Ex. 1).
Williams testified the allegations regarding White's conduct in 2007 and 2008 had nothing to do with Respondent, who was no longer employed by the Forest Preserve District at
that time. Likewise, she felt the allegations of wrongdoing were unrelated to her transfer to the legal department or to the altercation that precipitated that move, although those facts are set forth in the federal complaint. Williams stated that everyone, including Respondent, was aware of those circumstances. (Tr. 104-108, 114-15; Adm. Exs. 3, 5).
White acknowledged the information in Respondent's December 2006 memo was not related to any claim Williams was making or to any events in 2008 or 2009, but he was concerned Respondent would raise an issue of a pattern of retaliation against Williams. He noted that Williams' federal court complaint repeated the claims of assault she had made against a co-employee in 2005, and that Respondent's 2006 memo referenced those claims. White did not know if those claims were generally known among Williams' co-workers, but felt certain the claims were known in the finance department. White stated he never had a conversation with Respondent regarding the 2006 memo and, to his knowledge, no one else at the Forest Preserve District authorized the disclosure of the December 2006 memo. (Tr. 131-33, 140-42, 144, 148; Adm. Exs. 1, 5).
White noted that Respondent's representation of Williams raised some eyebrows. The Forest Preserve District did not seek Respondent's disqualification from the lawsuits, however, because White wanted the cases dismissed and did not want to spend time or money fighting over a disqualification issue. In White's opinion, Williams filed the lawsuits because she did not want to do the work she was assigned. (Tr. 130, 134, 142).
B. Analysis and Conclusions
Rule 1.11(a) states that "a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after disclosure." Respondent's
representation of Williams is undisputed, as is the fact that he did not seek or receive consent from the Forest Preserve District for his representation. The focus of our inquiry, therefore, is whether he represented her in a matter in which he participated "personally and substantially" as an employee of the Forest Preserve District.
The Administrator advised us that no Illinois cases have interpreted the language of 1.11(a), and we have not found any such cases. The District of Columbia Board on Professional Responsibility recently examined D.C. Bar Rule 1.11 and interpreted the phrase "participated personally and substantially" as follows:
?Substantial participation' means the employee's involvement must be of significance to the matter or create a reasonable appearance of such significance. A single act of approving or participating in a critical step may be substantial if the act is of significance to the matter. This requires more than official responsibility, knowledge, perfunctory involvement, or involvement in only administrative or peripheral issues.
In re White, No. 292-04 (Bd. Prof. Resp. 2009), aff'd in relevant part, 11 A.3d 1226 (D.C. 2011), cert. denied, 131 S. Ct. 2941 (2011). Participation does not have to be in a "lawyer" capacity. See ABA Model Rules of Professional Conduct, Rule 1.11 and comments thereafter; Filippi v. Elmont Union Free Sch. Dist. Bd. of Ed., 722 F. Supp.2d 295 (E.D.N.Y. 2010).
Although Respondent was not involved in any controversy between Williams and Dennis White (as Respondent had left the Forest Preserve District by the time those issues arose), he was involved with William's employment matters during his tenure as chief counsel of the District. In that capacity, he was familiar with Williams' employment history, had discussions with the chief financial officer regarding budgeting for her position, and directly supervised her work after she joined the legal department. As the ranking legal officer, he also would have been privy to the District's views on litigation and the handling of employee disputes and discipline. In his December 2006 memo to the human resources department, Respondent discussed the
reasons for Williams' transfer, expressed his opinion that she had not done anything to warrant termination, advised that such action could be viewed as a retaliatory measure, and recommended that a solution be found that did not involve Williams' termination.
We conclude that Respondent's knowledge of a memo that was favorable to Williams, as well as his familiarity with the thought processes, priorities and vulnerabilities of the Forest Preserve District in relation to Williams, could have affected his decision to bring suit on her behalf and could have provided an advantage in his litigation and/or settlement strategy. We note that, in drafting the federal court complaint, Respondent included allegations relating to Williams' transfer to the legal department and the reasons for the transfer. While he testified the allegations were included as background information only, we believe a reasonable person could infer a pattern in the way Williams was treated by the District.
We believe Respondent was shortsighted in failing to anticipate at the outset of his representation of Williams that her former situation could become an issue in subsequent litigation or in potential settlement discussions. He acknowledged he ultimately withdrew from representing Williams in federal court, in part, because of concerns that he might be called as a witness. Respondent's recognition of a potential problem regarding his representation of Williams is telling and, in our minds, further cements the nexus between Williams' earlier employment issue and the cause of action asserted in her lawsuit.
Having considered Respondent's actions relating to Williams both before and after his departure from the Forest Preserve District, we conclude he undertook representation of Williams in connection with a matter in which he was personally and substantially involved as Chief Counsel of the Forest Preserve District. We find therefore the Administrator proved by clear and convincing evidence that Respondent violated Rule 1.11(a).
A. Evidence Considered
Respondent was admitted to the Michigan bar in 1981, to the Illinois bar in 1991, and to the Northern District of Illinois general and trial bar in 1991. After practicing in Michigan and Illinois, Respondent moved to Arkansas in 2007 and became a sole practitioner focusing on domestic relations, property litigation and employment litigation. (Tr. 150, 155, 181-82, 184, 189).
Respondent acknowledged he was removed from the Illinois master roll of attorneys in 2008 for failure to pay his registration dues, but denied receiving a February 2008 written notification of that fact. At some point in 2008 he inquired about his status and learned he was not registered. He stated he had not intended to give up his Illinois license but when he learned he was no longer on the master roll, he decided to concentrate on his admission to the Arkansas bar. (Tr. 151-52, 189).
Respondent was admitted to practice law in Arkansas in April or May of 2008 and has completed all continuing legal education requirements for that state. He has not submitted any certification to show he has completed his continuing legal education requirement for Illinois because he was not aware continuing legal education was a requirement for attorneys who practiced outside Illinois. (Tr. 152, 154).
When Respondent agreed to represent Talana Williams in 2009 for the purpose of writing a letter to the Forest Preserve District on her behalf, he was not listed on the Illinois master roll of attorneys. Respondent was a member of the Arkansas bar at the time and did not believe his status as an out-of-state attorney prevented him from sending the letter. (Tr. 195-96, 219, 221; Adm. Ex. 2).
Respondent recalled advising Williams he was not licensed in Illinois and would have to use local counsel to practice in Illinois. Respondent understood that, as a member of the trial bar of the Northern District of Illinois, he could try cases in federal court without seeking the court's permission as long as he had local counsel. With respect to Illinois state courts, he understood he would have to file a motion to practice pro hac vice and secure local counsel. (Tr. 153-54, 173-74, 190-91).
Williams confirmed that Respondent told her he was not authorized to practice in Illinois and would need local counsel. When Respondent could not locate anyone to serve as local counsel, Williams suggested her friend Maize Harris, and provided Respondent with Harris' contact information. When Respondent filed the federal suit on behalf of Williams, he signed his own name and Harris' name electronically to the complaint. (Tr. 90, 92, 174, 202; Adm. Ex. 5).
Several months after the federal complaint was filed, Harris filed a motion to withdraw from the case. At the hearing on Harris' motion, the court advised Respondent he would have to seek local counsel if he were going to continue to represent Williams but did not sanction Respondent for not having local counsel appear on the case. Respondent informed the court he would no longer be representing Williams and six months later he was granted leave to withdraw from the federal case. Respondent explained that the order allowing his withdrawal was delayed because Williams took a long time to find substitute counsel. (Tr. 38, 172-73, 180, 207-208; Adm. Exs. 5, 6).
B. Analysis and Conclusions
After agreeing to represent Williams, Respondent sent a demand letter to the human resources director of the Forest Preserve District in October 2009, and then in December 2009 he filed an action on her behalf in the federal district court for the Northern District of Illinois. We
do not find that the actions taken by Respondent in 2009 constituted the unauthorized practice of law.
At the time Respondent sent the demand letter and filed the lawsuit, his name had been removed from the Illinois master roll of attorneys for failure to pay his registration dues. Rule 5.5(a) prohibits an attorney from practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction, and Supreme Court Rule 756(b) states that an attorney who is not listed on the master roll is not entitled to practice law in Illinois. Respondent was, however, a member of the Northern District of Illinois trial bar and general bar, and had been for a number of years. As such, he was authorized to practice before that court.2 He was also required to abide by the local rules of that court, one of which requires nonresident attorneys to designate - at the time an initial notice of pleading is filed - local counsel upon whom service of papers may be made. See N.D. Ill. LR83.15. The person listed as local counsel is required to file an appearance in the case.
At the time Respondent filed the federal complaint on behalf of Williams, he listed the name and address of Chicago attorney Maize Harris, along with his own name and address, on the signature page of the complaint. He did not specifically designate Harris as local counsel, and she never filed an appearance in the case.
We regard Respondent's failure to comply with the local rules as a procedural error rather than an attempt to practice in a jurisdiction where he was not authorized to do so. We note that he did not hold himself out to his client or to the court as being registered to practice in Illinois. We further note that the federal judge, when informed of Respondent's error in including Harris' name on the complaint, advised him to secure local counsel but did not reference any unauthorized practice of law or impose any sanctions against him.
With respect to Respondent's October 2009 demand letter to the human resources director, we do not regard that single correspondence as sufficient to constitute the unauthorized practice of law when Respondent's subsequent actions reflected efforts to secure local counsel in accordance with procedures for out of state attorneys. We distinguish this case from one cited by the Administrator wherein the Hearing Board, in an opinion approved by the Supreme Court, determined that an Illinois attorney who sent a demand letter in connection with a Michigan case had engaged in the unauthorized practice of law. In re Golden, 99 CH 65, M.R. 17964 (Mar. 22, 2002). In Golden, the demand letter was part of a two-year string of activities, including the drafting of a will and appearances in court and at a mediation conference, engaged in by an attorney who was not licensed in Michigan and had not sought to be admitted pro hac vice despite being advised by a judge to do so.
We note that the 2010 version of Rule 5.5 (governing conduct after January 1, 2010) includes a new provision allowing out-of-state attorneys to provide legal services, on a temporary basis, that are reasonably related to a potential proceeding if the lawyer is authorized to appear in such proceeding or reasonably expects to be so authorized. Admittedly, that new provision was not in effect at the time Respondent sent his demand letter, but the rationale for allowing the temporary provision of services reinforces our decision that Respondent's sending of the demand letter under the circumstances of this case did not constitute the unauthorized practice of law.
A. Evidence Considered
We consider the evidence previously summarized in sections I and II.
B. Analysis and Conclusions
We find that Respondent's conduct in representing a client in a matter in which he was involved when he was an employee of the Forest Preserve District was prejudicial to the administration of justice. We have determined that Respondent should not have participated in or filed the federal lawsuit on behalf of Williams. Had he advised Williams in the fall of 2009 that he could not represent her, she could have sought the assistance of another attorney at that time. Instead, Respondent brought suit on her behalf and then months later, when his actions in the case became an issue, he sought to withdraw from the matter. The ruling on his motion was delayed for another several months while Williams attempted to secure alternative representation. The time invested by the court to consider Respondent's withdrawal, as well as the delay in the proceedings brought about by Respondent's departure from the case, was prejudicial to the administration of justice.
The Illinois Supreme Court has stated "Rule 770 is not itself a Rule of Professional Conduct" and "one does not 'violate' Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." In re Thomas, 2012 IL 113035 par. 92. Accordingly, based on the wording of the allegation in the Complaint before us, we find no violation of Rule 770.
A. Evidence Considered
We consider the facts and evidence outlined above in section I, along with the following evidence.
Following Respondent's filing of the federal lawsuit on behalf of Williams in December 2009, he continued to represent her in that matter until he was allowed to withdraw in January 2011. In addition, in February 2010 he filed an action on behalf of Williams against the Forest Preserve District in the Circuit Court of Cook County. The state court complaint alleged that Dennis White created a hostile working environment for Williams, and had allowed the intentional disclosure and dissemination of her confidential medical information without her consent. The complaint did not include factual allegations relating to Williams altercation with a co-worker or her transfer to the legal department. (Tr. 196, 198; Adm. Ex. 3, Resp. Ex. 1).
B. Analysis and Conclusions
In Count I we found that Respondent engaged in conduct which violated Rule 1.11 of the 1990 professional rules. In Count II the Administrator repeats that charge and further charges a violation of Rule 1.11 under the 2010 rules. After January 1, 2010, Respondent continued to represent Williams in the federal lawsuit and also filed a state court action on her behalf. While the state court complaint did not include allegations relating to Williams' 2006 transfer to the legal department, the asserted causes of action were based on her employment issues, just as they were in the federal action. For the reasons we found that Respondent violated Rule 1.11 in Count I, we also find that he violated that rule as to Count II.
A. Evidence Considered
We consider the evidence summarized in sections I, II, and V above, as well as the following evidence.
With respect to the state court action filed by Respondent on behalf of Williams in February 2010, Respondent signed his own name to the complaint as well as Maize Harris's name. Respondent testified he also prepared a "Motion for Pro Hac Vice Appearance" in which he represented he would be using Maize Harris as local counsel. The motion further stated that Respondent was licensed to practice law in Illinois in 1991 but then moved to Arkansas in 2007 and is no longer licensed in Illinois. When asked if he took any steps after 2007 to pay his registration fees in Illinois, Respondent recalled speaking to someone about the fees, but did not pay them or report any MCLE credits. He was not aware of any requirement that an out-of-state attorney has to pay past dues or satisfy Illinois MCLE requirements in order to appear before an Illinois court pro hac vice. He pointed out if that were the case, a pro hac vice motion would not be needed. Respondent did not provide Harris with a copy of the motion or discuss it with her, nor did Williams recall providing a copy of the motion to Harris. (Tr. 94, 174, 192, 201, 215-17, 221-22; Adm. Ex. 3; Resp. Ex. 2)
Respondent testified he mailed his pro hac vice motion, along with Williams' complaint, a summons, and a draft order allowing his motion, to the clerk of the Circuit Court of Cook County on or about February 15, 2010 and requested in a cover letter that the clerk return file-stamped copies to him. He identified a copy of the motion with a file-stamp of February 24, 2010 and a copy of the order stamped with a calendar and docket number. The order is not signed by a judge, nor did Respondent ever receive a signed order. Because the order lacked a
signature, which Respondent believed was a mistake, he was not certain his motion had been approved. Given his uncertainty and the fact the defendant had not been served, he took no further action with respect to his pro hac vice motion. Ultimately, the case was dismissed for want of prosecution. (Tr. 192-94, 214; Adm. Ex. 3, Resp. Exs. 1-3).
B. Analysis and Conclusions
In Count II the Administrator charges a violation of Rule 5.5 relating to conduct which occurred after January 1, 2010. We previously found as to Count I that Respondent did not engage in the unauthorized practice of law by sending a demand letter and filing a lawsuit in federal court. Likewise, we do not find that his continued participation in the federal action during 2010 was a violation of the rules.
Respondent's filing of the state court action in February 2010 on behalf of Williams requires a somewhat different analysis. As of February 2008 Respondent was no longer registered to practice law in Illinois, as his name had been removed from the master roll for failure to pay his registration dues. On April 14, 2008 he became licensed to practice in Arkansas. Illinois Supreme Court Rule 707, entitled "Pro Hac Vice," states that an attorney from any other jurisdiction in the United States "may in the discretion of any court of this State be permitted to participate before the court in the trial or argument of any particular cause in which, for the time being, he or she is employed."
The evidence showed that when Respondent transmitted Williams' state court complaint to the clerk of the court for filing in February 2010, he also included a "Motion for Pro Hac Vice Appearance" and a proposed order allowing his motion, and requested that file-stamped copies of the documents be returned to him. He provided us with a copy of his motion which bore the clerk of the court's file stamp, and a copy of the order which was stamped with the case number
and calendar assignment but was not signed by a judge. Neither the motion nor the order was included in the official case file submitted by the Administrator, but no allegations were asserted that those documents were fraudulent in any respect.
We find Respondent was following the procedures set up for out-of-state attorneys to practice law in Illinois. His motion disclosed that he had been admitted to practice in Illinois at one time but no longer was licensed here. The Administrator did not cite to any rule or statute which states that an out-of-state attorney who had once been registered in Illinois must continue to satisfy Illinois registration requirements in order to appear pro hac vice, nor are we aware of any such rule. While the absence of a judge's signature on Respondent's proposed order is troubling, we accept his testimony that he was unclear as to whether the motion was approved and was waiting until the defendant was served before pursuing the matter further. We conclude, therefore, that the Administrator did not prove by clear and convincing evidence that Respondent engaged in the unauthorized practice of law by filing the state court action on behalf of Williams.
A. Evidence Considered
Mazie Harris, an attorney licensed in Illinois in 2005, testified she was contacted by Talana Williams in 2009 or 2010 regarding Williams' work-related problems at the Cook County Forest Preserve. Thereafter, Harris received another call from Williams requesting permission to give Harris' number to an attorney who was not licensed in Illinois. Approximately five minutes after speaking with Williams, Harris was contacted by Respondent who was in Chicago trying unsuccessfully to file documents in the Circuit Court of Cook County. Harris instructed Respondent to call back after he ascertained the correct procedures for proceeding pro hac vice. Harris denied agreeing to serve as local counsel in the state court action, and never discussed
being local counsel in a federal case. She acknowledged she never told Respondent not to list her name on the state or federal court complaint as local counsel, but believes an attorney knows not to use another attorney's name. She did not recall having any further contact with Respondent. (Tr. 21-27, 43, 58).
Talana Williams recalled contacting Harris and believes Harris agreed to act as local counsel in the state and federal court litigation. Williams stated she advised Respondent and Harris to call each other, but they had trouble connecting and therefore Williams acted as their "go-between" and answered questions between the two of them. Williams stated she was trying to be helpful because neither attorney was charging her a fee. She recalled having many conversations with each of the attorneys, and telling Respondent that Harris was agreeable to serve as local counsel. (Tr. 93-94, 112, 119-20).
Respondent recalled Williams telling him that Harris had agreed to act as local counsel in both the state and federal actions. He attempted to reach Harris, but did not believe they ever spoke. According to Respondent, all of his conversations were with Williams. Respondent did not recall being told by Harris that she could not commit to being local counsel until he determined the procedures for doing so. He stated he and Harris never discussed Williams' claims, communication with Williams, a division of responsibilities, court appearances, or fees. (Tr. 174. 201, 217-18).
Respondent signed Harris' name, either by hand or electronically, to both the federal and state court complaints he filed on behalf of Williams. On the state court complaint he wrote his initials after Harris' name to denote he was signing in a representative capacity. He acknowledged he did not receive authority directly from Harris to use her name on either complaint. While he did not send copies of the complaints to Harris, he stated he did give copies
to Williams to give to Harris. Williams did not recall providing Harris with a copy of the state or federal court complaint, nor did she recall Harris giving approval for Respondent to sign her name to any documents. With respect to Respondent's pro hac vice motion filed in state court naming Harris as local counsel, Respondent did not provide Harris with a copy of that motion, nor did he discuss it with her. (Tr. 94, 174-75, 201-202, 215; Adm. Ex. 3, Resp. Ex. 2).
Eventually Harris received a card from the Circuit Court of Cook County regarding a status hearing in Williams' case. When she investigated, she discovered the complaint listed her as Williams' attorney. Harris denied signing the complaint, giving anyone authority to sign her name to it, or authorizing Respondent to list her as local counsel. (Tr. 27-18, 30, 52, 57; Adm. Ex. 3).
Harris was upset and contacted Williams, who referred her to Respondent for information. Harris attempted to reach Respondent and left a message asking him to contact her, but did not hear from him. Harris then filed a motion to withdraw from the case and sent a copy of the motion to Respondent and Williams. Although Harris' motion stated that she "granted [Respondent] permission to represent plaintiff pro hac vice, provided that he find out and adhere to the proper court procedures," Harris explained that she did not actually "grant" or deny Respondent permission to appear pro hac vice, but merely directed him to ascertain the correct procedures. (Tr. 28-31, 44-45; Adm. Ex. 3).
When Respondent learned of Harris' motion to withdraw, he telephoned a Chicago attorney and friend, George Ashford, and requested that Ashford appear in state court on the motion. Ashford then asked attorney Paul Dahlquist to handle the matter. Respondent recalled speaking to Dahlquist and asking him to attend the hearing and advise the Court that the
defendant had not been served. Respondent believed he informed Dahlquist of Harris's motion to withdraw. (Tr. 176, 204, 206, 236).
Harris testified she appeared in court on June 2, 2010 for the hearing on her motion to withdraw. The court granted her motion and the case was dismissed for want of prosecution. (Tr. 32-33, 50-51; Adm. Ex. 3).
After the state court case was dismissed, Respondent advised Williams she could re-file her case. Respondent did not re-file a complaint on her behalf because he was concerned about Harris' assertion that she had not agreed to act as local counsel and he decided he should not be part of the case. He told Williams he could no longer represent her and advised her she would have to find new counsel. Respondent stated he was never sanctioned by the state court judge for any of his actions. (Tr. 97, 106, 119, 177, 206-208).
Shortly after the hearing in state court, Harris learned her name was also on a federal court complaint filed on behalf of Williams. Harris denied giving anyone permission to insert her name on the complaint and stated she was not admitted to the Northern District of Illinois bar in 2009. Harris testified she filed a motion to withdraw in the federal case but when asked to review the federal court file, she could not locate the motion. She identified her state court motion in the file and assumed it was attached as an exhibit to her motion in the federal case. When Harris' motion was heard by the court on June 24, 2010, Respondent participated by telephone but provided no explanation for his use of Harris's name. (Tr. 35, 37-38, 47-50, 55, 57, 180-81, 207; Adm. Ex. 5, 6).
Respondent testified he never intended to make any misrepresentation to a judge. He stated if he could go back, he would not agree to represent anyone without having the agreement
in writing. He also believes that allowing his client to choose local counsel and handle the communications with Harris was one of the worst mistakes he ever made. (Tr. 210-11).
B. Analysis and Conclusions
The Administrator alleged that Respondent, in affixing Maize Harris' name to the December 2009 federal court complaint, intended to mislead the court into believing that Harris would be fulfilling the duties of local counsel as required under Local Rule 83.15 when, in fact, he knew Harris had not agreed to serve as local counsel or take any action in the matter.3 Similarly, the Administrator charged that Respondent, by signing Harris' name to the February 2010 state court complaint, intended to mislead that court into believing Harris would be acting as local counsel on behalf of Williams when he knew she had not agreed to serve in that capacity.
We find the charges of making false statements to a tribunal were not proved by clear and convincing evidence. According to both Williams and Respondent, Williams told Respondent that Harris had agreed to act as local counsel. We were not presented with any evidence that would have alerted Respondent that Williams was mistaken or not credible in making that representation. Respondent did not recall any direct conversations with Harris; rather, he allowed Williams to act as the "go-between" or at least understood that Williams was acting in that capacity. He now admits that allowing Williams to choose local counsel and handle the communications with Harris was a mistake. We conclude that Respondent exercised poor judgment in this matter and, while we find that circumstance to be troubling, we further find that his actions were nothing more than that. We believed him when he stated he did not intend to make any misrepresentation to a judge.
In making our finding we have not overlooked Harris' unequivocal statement that she did not agree to act as local counsel. We do not doubt Harris' veracity but, simply put, our analysis is focused on Respondent's understanding of the situation and his intent rather than on Harris' state of mind. We do note, however, that Harris recalled having a conversation with Respondent in which he requested that she serve as local counsel. She directed him to ascertain the procedures for doing so, but neither accepted or refused his request at that time or any other time. In a motion to withdraw filed in the state court action Harris stated she "granted" Respondent permission to represent Williams pro hac vice provided he ascertained and adhered to the applicable court procedures. In our view, Harris' testimony and statement to the court establishes that she had at least contemplated assuming the role of local counsel, and may have given that impression to Respondent as well.
Given Williams' unambiguous recollection of her conversation with Respondent regarding Harris' participation in the lawsuits, Respondent's understanding of Harris' role, and the lack of finality in Harris' statement to Respondent, we do not conclude that the charge of making a false statement to a court was proved by clear and convincing evidence.
A. Evidence Considered
We consider the evidence summarized in VII above.
B. Analysis and Conclusions
In considering Rule 8.4(a)(4), the Supreme Court has emphasized that each case is unique and the circumstances surrounding the attorney's conduct must be taken into consideration. See Thomas, 2012 IL 113035; In re Mulroe, 2011 IL 111378 (2011); In re Cutright, 233 Ill. 2d 474, 489, 910 N.E.2d 581 (2009). Generally, a finding of dishonesty requires "some act or
circumstances that showed that the respondent's conduct was purposeful." Cutright, 233 Ill. 2d at 489.
For the reasons we found Respondent did not make false representations to a state or federal court, we also find he did not engage in dishonesty, fraud, deceit or misrepresentation with respect to those entities. Similarly, we find he did not engage in dishonest conduct with respect to Maize Harris. We saw no evidence to implicate Respondent in any clandestine activity or any intent to use Harris' name without her authority. While he acknowledged he did not send copies of his pleadings to her, we do not take that omission as proof that he was attempting to conceal his actions from her. He certainly knew that the complaints listing her name and address were a matter of public record and further, he would have known that the court and opposing counsel would send notifications to her.
The fact that Harris had to take action to withdraw from two lawsuits in which she was not a voluntary participant is unfortunate. We cannot conclude, however, that Respondent perpetrated any type of fraud on Harris. As with the charge of false statements made to a tribunal, we find that his use of Harris' name without her authority was a mistake that resulted from receiving incorrect information from his client.
A. Evidence Considered
We consider the evidence previously summarized.
B. Analysis and Conclusions
We previously found that Respondent's conduct in 2009 of representing a client in a federal matter in which he was involved when he was an employee of the Forest Preserve District was prejudicial to the administration of justice. The same reasoning holds true for his
filing of the 2010 complaint in state court. Both Williams and the court invested time in that proceeding, which ultimately was dismissed for want of prosecution. Had Respondent declined representation, Williams could have sought assistance from another attorney at the outset of her action.
We also find that Respondent's actions with respect to his unauthorized use of Harris' name, while not dishonest or fraudulent, was prejudicial to the administration of justice. Harris was forced to file motions to withdraw in both cases, which motions required attention by the courts and use of judicial resources.
The Illinois Supreme Court has stated "Rule 770 is not itself a Rule of Professional Conduct" and "one does not 'violate' Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." Thomas, 2012 IL 113035 par. 92. Accordingly, based on the wording of the allegation in the Complaint before us, we find no violation of Rule 770.
EVIDENCE OFFERED IN MITIGATION AND AGGRAVATION
Respondent testified he has cooperated with the Administrator in this matter, volunteers with a group that seeks solutions for local health issues and teen problems, serves on the board and drafted bylaws for a nonprofit organization which assists parents of children with disabilities, serves on the board of the Arkansas Health Education Clinic, and handles the legal work for his church. He estimated that his pro bono activities occupy between five and ten hours per month. (Tr. 185-88, 209).
Respondent acknowledged he did not apologize to Maize Harris during the federal court status hearing or at any other time. After listening to Harris testify, he realizes he has not paid enough attention to the affect his actions have had on other people. He regrets not reaching out to Harris a long time ago and advising her that he believed, based on his conversations with Williams, she had agreed to act as local counsel. (Tr. 178, 211).
Respondent stated he would not practice law in a jurisdiction other than Arkansas unless he had a written agreement with local counsel. (Tr. 210).
Pia Davis worked with Respondent at the Forest Preserve District and has maintained a friendship and social contact with him. Davis stated Respondent is upstanding in the way he conducts himself. She acknowledged she has not spoken to any attorney regarding Respondent's reputation for truthfulness and veracity. (Tr. 224, 228).
George Ashford, an associate general counsel with AT&T with an "of counsel" license in Illinois, met Respondent thirty years ago when they were both associates at a law firm in Detroit, Michigan. They have maintained a professional and social relationship since that time. (Tr. 229-31).
Ashford testified Respondent's work product was excellent, as were his relationships with both clients and colleagues. Ashford has spoken to other attorneys in Detroit and Chicago about Respondent and has never heard any negative comments relating to his character, honesty, or integrity. He noted that when they were in Detroit, Respondent volunteered his services in the legal and social community. (Tr. 232-33).
Williams denied suffering any harm as a result of Respondent's handling of her case, and does not believe the case would have progressed any faster if she had not used his services. She testified her current attorney incorporated her state court lawsuit into the federal case, which is still pending. (Tr. 111, 113, 122).
Maize Harris testified if she had not discovered Respondent's use of her name on the complaints he filed on behalf of Williams, she might have been exposed to allegations of malpractice. She stated Respondent has never explained his actions or apologized to her. (Tr. 39-40).
Harris further testified that when she appeared in court on June 2, 2010 to present her motion to withdraw from the state court action, she learned the motion had been called before she arrived. The judge then informed her that a man had answered the call and identified himself as Maize Harris. At the judge's instruction, Harris drafted an order stating her motion to withdraw was granted, fraud had been committed on the court, and the case was dismissed for want of prosecution. (Tr. 32-33, 50-51; Adm. Ex. 3).
Paul Dahlquist, an attorney in Illinois since 1972, testified he handled defense work for AT&T on a contract basis from 2000 to 2011. In 2009 and 2010 his work was supervised by George Ashford. On the morning of June 2, 2010, Dahlquist learned from Ashford that Respondent, an attorney who was out of town, needed to obtain a continuance in a case pending in the Circuit Court of Cook County. Dahlquist telephoned Respondent and was told the case was up for status and the defendant had not been served. Dahlquist denied that Respondent
mentioned Maize Harris, any motion to withdraw, or the fact he was not authorized to practice law in Illinois. Dahlquist consulted the court's website and learned Harris was counsel of record. (Tr. 61, 64-70, 73-74).
Dahlquist attended the hearing as requested, identified himself to the court, stated he was appearing for an attorney who was out of town, and asked for a continuance. After his request was granted, Dahlquist prepared an order continuing the matter and listing Maize Harris as the attorney for the plaintiff. He provided Harris' address and phone number, which he had obtained from the website or from the call sheet outside the courtroom. Dahlquist denied representing to the judge that he was Maize Harris. (Tr. 69-72; Adm. Ex. 3).
When Dahlquist was contacted by the ARDC sometime later, he learned Harris had appeared in court on June 2, 2010 and a second order was entered. When Dahlquist reviewed the subsequent order, he was shocked to see that it referred to a fraud perpetrated on the Court. He denied any fraudulent activity. In April 2011 Dahlquist reviewed the court file and saw the motion to withdraw filed by Harris. (Tr. 75-78; Adm. Ex. 3).
The Administrator reported that Respondent has not been the subject of any prior orders or opinions imposing discipline.
Having concluded Respondent engaged in some of the misconduct charged in the Complaint, we must determine the appropriate discipline. In so doing, we consider the purpose of these proceedings is not to punish, but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). Attorney discipline also has a deterrent value in that it impresses
upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906, 912 (1994).
In arriving at the appropriate discipline, we consider those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526, 535 (1991). In mitigation, Respondent cooperated in these proceedings, has not been previously disciplined, and presented two witnesses who testified to his good character. We further consider Respondent's testimony, as corroborated by one of the witnesses, that he has a history of participating in community activities and providing pro bono work. See In re Clayter, 78 Ill. 2d 276, 399 N.E.2d 1318 (1980). In addition, we found no evidence that the proven misconduct resulted from corrupt or dishonest motives. See In re Samuels, 126 N.E.2d 509, 535 N.E.2d 808, 816 (1989); In re Kink, 92 Ill. 2d 293, 442 N.E.2d 206, 210 (1982).
In aggravation, we may consider any harm or risk of harm that was caused by Respondent's conduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care"). We have previously discussed the fact that Respondent's actions were prejudicial to the administration of justice as his involvement in Williams' case resulted in extra court proceedings and a delay in the progression of the case. We find no other harm to Williams, however, since she testified her case was not jeopardized in any way. Apparently her new attorney is pursuing her federal case and has incorporated the state court allegations into the federal action. We also previously discussed the fact that Respondent's actions with respect to his unauthorized use of Harris' name was prejudicial to the administration of justice. With respect to that misconduct, we recognize the additional harm to Harris herself in having to
expend time and resources to bring two motions to withdraw, as well as the risk of liability by having her name appear on pleadings as counsel of record without her knowledge.
We heard testimony from Harris regarding the possibility that a fraud was perpetrated in relation to Respondent's request that Paul Dahlquist appear on his behalf in the Williams case. We do not view that evidence as aggravating, and draw no conclusions of dishonesty from Harris' testimony that a person appeared in court claiming to be her. Dahlquist testified credibly that after being asked to obtain a continuance in Williams' case, he appeared in court for that purpose, identified himself, and then listed Harris's name on the court order because he had determined she was the attorney of record in the case. Likewise, we do not conclude that Dahlquist was the victim of any dishonesty or that any harm resulted to him from his involvement in the matter. Although Dahlquist did not recall Respondent telling him about Harris's motion to withdraw, we see no reason why Respondent would intentionally hide that fact as Dahlquist would have learned of the motion at the hearing, had Harris not been late. We note that Dahlquist did not testify that he suffered any adverse consequences as a result of appearing in court for Respondent, or from the entry of an order which made reference to a fraud on the court. He was not named in the order and did not even know of its entry until months later.
The Administrator has urged us to recommend a suspension of six months. That suggestion was premised on the assumption we would find all of the charges in the Complaint proved, which we have not done. We found only that Respondent engaged in a conflict of interest by representing a client in a matter in which he was involved while employed by the Forest Preserve District in violation of Rule 1.11(a), and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) and Rule 8.4(d).
Counsel for the Administrator pointed us to a disciplinary case from the District of Columbia which focuses on Rule 1.11. In In re White, 11 A.3d 1226 (D.C. 2011), a violation of that rule was found where an attorney agreed to represent a client in a matter in which the attorney had been actively involved while working for a government agency. Aggravating factors included the attorney's dishonesty, her inability to recognize ethical problems, and her contemptuous behavior during the proceedings, while the only mitigating circumstance was a lack of prior discipline. The misconduct and aggravating factors warranted a six month suspension with a condition that the attorney be required to prove her fitness before being reinstated. The Administrator also cited to In re Nelson, 02 CH 12, M.R. 19657 (Nov. 17, 2004) a case involving a government attorney who took confidential documents from personnel files and used them to support a discrimination suit against her employer. The attorney was suspended for 90 days for revealing a client confidence, engaging in a conflict of interest and engaging in dishonest conduct. Although the foregoing cases are instructive, we believe the aggravating factors in White and the finding of dishonesty in Nelson distinguish those cases from the present case.
Conflict of interest cases outside the context of government employment also provide us with guidance. In cases where harm to the client was not severe and no dishonesty was found, sanctions have been minimal. For example, In re Graham, 04 SH 118, M.R. 20244 (Sept. 26, 2005) an attorney was censured on consent for representing a hospital and then representing a client against the hospital in violation of Rule 1.9(c). In In re Hines, 2011PR00055 (Nov. 4, 2011) an attorney represented a client and one of the client's businesses. After the client died, the attorney represented two clients who asserted claims against his former client's estate. The attorney was reprimanded pursuant to a joint stipulation of the parties. In In re Beller, 02 CH 71,
M.R. 19302 (May 17, 2004), the attorney was censured for successive representation of an employee and employer in an immigration matter relating to the employee.
Based on the facts in this case and our review of applicable precedent, we conclude a censure is the appropriate sanction for Respondent's misconduct. In our opinion, Respondent does not pose any threat to his future clients and therefore should not be removed from practice. Although he erred in agreeing to represent Williams against the Forest Preserve District, his misconduct was limited to that one client matter, he did not engage in any intentionally deceptive misconduct, and he has not been previously disciplined. We are confident a censure will protect the public and remind attorneys of their professional obligation to avoid conflicts of interest.
Accordingly, and for the reasons stated, we recommend that Respondent Robert E. Kinchen be censured.
Lon M. Richey
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 February 4, 2013.
Kenneth G. Jablonski, Clerk of the
1 As to Count I the Administrator charged violations of the 1990 Rules of Professional Conduct which governed attorney conduct prior to January 1, 2010, and therefore we focus on Respondent's conduct prior to 2010. To the extent that Count I also includes some allegations relating to Respondent's conduct in 2010, we note that those allegations, and charges of
misconduct related thereto, are also asserted in Count II and we address them in our discussion of that count.
2 According to the local rules of the Northern District of Illinois, an attorney need not be admitted to practice in Illinois in order to be a member of the federal bar; rather, an applicant for admission must be a member in good standing of the bar of the highest court of any state of the United States or of the District of Columbia. See N.D. Ill. LR83.10.
3 The 1990 version of Rule 3.3 states that an attorney shall not make a statement of material fact or law to a tribunal which the lawyer knows "or reasonably should know" is false. The Administrator did not include the quoted language in her charge, however, and that language is not part of the 2010 version of the rule. We analyze the charge as presented by the Administrator.