Filed November 27, 2013
In re Ross Lee Haith, II
Commission No. 2009PR00139
Synopsis of Review Board Report and Recommendation
This is the second time this matter was considered by the Review Board. The Court remanded this matter to the Hearing Board for the purpose of hearing evidence in mitigation and aggravation of Respondent's misconduct and evidence and argument regarding the appropriate sanction to be recommended to the Court.
The underlying conduct arises out of Respondent's representation of a client in a post-dissolution matter. The Administrator charged Respondent in a one-count complaint with filing frivolous pleadings in an effort to delay the matter, making false statements in pleadings, and making false statements about the integrity of several judges. Respondent did not appear at his first disciplinary hearing. In its initial report, the Hearing Board concluded that Respondent engaged in the misconduct alleged by the Administrator. The Hearing Board recommended that Respondent be suspended for six months and until further order of Court with reinstatement conditioned on Respondent's completion of the ARDC professionalism seminar. The Review Board affirmed the findings of misconduct but recommended that the case be sent back to the Hearing Board for a hearing on the sanctions issue. The Court entered an order adopting the recommendation of the Review Board.
On remand, the Hearing Board conducted a hearing on the sanctions issue. The Respondent chose not to testify, but he called a number of character witnesses in mitigation. After hearing the evidence presented by the Respondent, the Hearing Board recommended that Respondent be suspended for six months and until further order of the Court.
Upon review, Respondent challenged the sanction recommendation. The Review Board considered the evidence in mitigation. The Review Board noted that it was troubled that Respondent's conduct occurred over several years and that Respondent provided no assurances that he could conform his conduct to appropriate standards. Accordingly, the Review Board also recommended that Respondent be suspended for six months and until further order of Court with the further condition that he be required to complete the ARDC Professionalism Seminar as a condition of reinstatement.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
ROSS LEE HAITH, II,
Commission No. 2009PR00139
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator charged Respondent in a one-count complaint with advancing a claim he knew was unwarranted under existing law in violation of Rule of Professional Conduct ("Rule") 1.2(f)(2); filing motions when he knew there was no basis for doing so in violation of Rule 3.1; using means having no substantial purpose other than to delay or burden a third person, in violation of Rule 4.4; and making false statements of material fact in motions before a court in violation of Rules 3.3(a)(1), 8.4(a)(4), and 8.4(a)(5).
In 2010 there was a hearing on the charges. Neither the Respondent nor his attorney appeared. As explained in more detail below, the Hearing Board found that the Respondent engaged in the misconduct alleged and recommended that he be suspended for six months and until further order of the Court. (C. 165-189).
The Review Panel affirmed the findings of misconduct and recommended that the case be sent back to the Hearing Board for a hearing on the sanction. (C. 362-377). The Court entered an order adopting the recommendation of the Review Panel. (C.481). On remand the Hearing Board had a hearing on the sanctions issue. After reviewing all the evidence it again recommended that the Respondent be suspended for six months and until further order of the
Court. The Respondent has filed exceptions. For the reasons explained below, we agree with the Hearing Board's recommendation.
The evidence shows that the Respondent's misconduct involves repeatedly filing motions with no factual or legal basis that needlessly prolonged litigation, engaging in tactics that unnecessarily required the opposing party, the trial court and the Attorney General to expend time and resources and making decisions demonstrating a total lack of professional judgment and responsibility. Although this misconduct has been summarized in two Hearing Board reports and one Review Panel report, we are going to briefly summarize it here. In our view, a detailed recitation of the misconduct is essential to evaluating the sanction recommendation. Our summary will borrow from the prior reports in this matter.
The misconduct occurred in post-decree proceedings in the matter of Alfred Smith v. Geneva Smith, 84 D 8635 (Circuit Court of Cook County). On November 25, 1986, the court entered a judgment of dissolution of marriage which ordered Alfred to make permanent maintenance payments to Geneva of $325 two times a month. The judgment further provided that Alfred and Geneva would each receive fifty percent of Alfred's Commonwealth Edison pension when Alfred began receiving it.
After Alfred retired, Geneva's attorney filed a post-decree petition for a rule to show cause and to enforce the judgment for dissolution, contending that Geneva had not received any maintenance from Alfred after his retirement and had received no portion of his pension payments. Judge Raymond Figueroa (Judge 1) presided over the matter.
Alfred's attorney, Luther Spence, filed a motion to terminate or modify Alfred's maintenance obligation. Respondent worked for Luther Spence at that time and appeared in court on behalf of Alfred. Geneva filed a motion to strike the motion, asserting that the petition
did not include any affidavits or facts indicating that the maintenance obligation should be modified. The court granted Geneva's motion.
Respondent filed a motion to substitute Judge Figueroa for cause. He attached his affidavit to the motion alleging that Judge Figueroa was rude and abrupt with Respondent and failed to consider his arguments. The motion did not attach transcripts of any proceedings before the judge. Chief Judge Timothy Evans transferred the matter to another judge (Judge 2) who denied Respondent's motion on the basis that Respondent had failed to meet his burden of proof. Judge Figueroa then recused himself, and the matter was transferred to Judge Jordan Kaplan (Judge 3).
Respondent left the employment of Luther Spence and filed a motion to substitute as counsel for Alfred in the Smith case. The motion was denied by Judge Kaplan because the motion did not have a consent signed by the client and by Luther Spence. Respondent then filed a motion to substitute Judge Kaplan for cause, alleging that Judge Kaplan had not read his motion and had engaged in "intentional deceit" by not allowing Respondent to file a substitute appearance for Alfred without the signatures of Alfred and attorney Spence. The motion attached a lengthy affidavit by Respondent, alleging that Judge Kaplan had told Respondent that he was requiring the signatures of the client and Mr. Spence for Respondent's own protection and that Judge Kaplan had "intentionally misled" him and had engaged in "intentional deceit." The motion further accused Judge Kaplan of "blatant discrimination" in his treatment of Respondent. This motion was assigned to Judge Michele Lowrance (Judge 4) who denied the motion.
Respondent then filed a motion to substitute Judge Kaplan as a matter of right. At the time of the proceedings, the law allowed one substitution of judge without cause as a matter
of right. Judge Lowrance granted Respondent's motion and the case was then assigned to Judge Elizabeth Rivera (Judge 5).
The Respondent then filed a "Petition to Vacate Permanent Maintenance Order Entered on November 25, 1986." In the first petition Respondent stated, "The court entered an order on November 25, 1986 for Alfred Smith to pay Geneva Smith permanent maintenance of $650.00 from the time the order was entered until December of 1999." This statement was false. The order did not state that the maintenance payments would end in December 1999. Indeed, the December 1999 date was not mentioned anywhere in the order. Respondent also inaccurately stated, "the November 25, 1986 order stated that maintenance was to be paid up to the time Alfred Smith retired, then a portion of his pension benefits would become due and payable to Geneva Smith." In fact the Order did not state that maintenance was to be paid up to the time of Alfred's retirement. Finally, Respondent also falsely stated, "According to the November 25, 1986 Order, Geneva Smith was never due both maintenance payments and pension benefits."
Geneva opposed the petition and filed a petition for attorney fees pursuant to Supreme Court Rule 137. Judge Rivera denied the petition filed by Respondent, finding that Respondent had made false statements in his petition. Following the entry of that order, Respondent filed a motion to reconsider. Judge Rivera denied the motion for reconsideration and sanctioned Respondent under Supreme Court Rule 137, allowing Geneva's petition for attorney fees. Judge Rivera stated in her order, "The court additionally finds that Alfred's Petition was interposed for the improper purposes of causing unnecessary delay, and needlessly increasing the cost of litigation, and that this pleading was signed in bad faith." The case was then transferred to Judge Charles Winkler (Judge 6).
In his next move the Respondent filed a second petition, which sought to vacate the 1986 judgment as a "misapplication of law." The petition failed to allege "legal disability,
duress, or fraudulent concealment" as required under the "misapplication of law" precedent. Accordingly, on March 3, 2003, Judge Charles Winkler entered an order denying the petition. Respondent filed a motion for reconsideration. The Respondent also filed a motion requesting that Judge Winkler voluntarily recuse himself from the case. Respondent alleged that Judge Winkler's comments in court showed that the judge "had no intention of weighing the merits of the arguments listed in petitioner's 2-1401 motion" and that the judge's "overriding intent was not to overrule any rulings or previous judges." Judge Winkler denied respondent's motion for reconsideration.
Judge Winkler ordered Alfred to immediately commence the sale of his home in Bolingbrook since he had not made the required payments to Geneva. Alfred did not comply thus forcing Geneva to file a motion for entry of a Judge's Deed, alleging that Alfred had not taken any steps to sell the property. On November 14, 2003, Judge Winkler entered an order granting until November 28 to respond to Geneva's motion. The Respondent never filed a response to the motion for entry of a Judge's Deed on behalf of Alfred. Instead Respondent issued a subpoena to Judge Winkler to compel Judge Winkler to testify about the case before the Presiding Judge. [The Hearing Board specifically highlighted this subpoena as "part of Respondent's frivolous course of conduct intended to delay the implementation of Judge Winkler's order." (C. 182).] Two days later, Respondent filed a 131 paragraph motion seeking to substitute Judge Winkler for cause, alleging that the judge's actions toward him were discriminatory based on Respondent's race and alleged that the judge's actions were a "conscious and deliberate attempt?to unlawfully deny" access to the courtroom.
The Illinois Attorney General's Office was required to file a motion to quash the subpoena to Judge Winkler. It noted that judicial immunity barred Judge Winkler from testifying. When the Respondent's motion for substitution for cause was denied, Respondent
then filed a motion for substitution of judge as a matter of right under 735 ILCS 5/2-1001. In the motion, Respondent wrote that the motion was "the first request for substitution by the petitioner." Respondent knew that he was limited to one substitution of judge as a matter of right, and that his statement was false. Respondent's motion was denied. Thereafter, Geneva's counsel filed another motion for sanctions against Respondent pursuant to Supreme Court Rule 137.
Judge Winkler ultimately granted a Judge's Deed to Geneva and ordered Alfred to vacate the home in Bolingbrook. The case was then transferred to Judge Mark Lopez (Judge 7) who granted Geneva's motion for sanctions and entered a judgment against Respondent for $10,299.65. Judge Lopez found that Respondent had filed a petition that was not well grounded in fact nor warranted by existing law, and did not raise any good faith arguments for the extension, modification, or reversal of existing law. He also found that Respondent's motions for substitution of judge were brought in bad faith and needlessly increased the cost of the litigation to Geneva.
Respondent filed a motion to reconsider Judge Lopez' order. The motion was denied. In addition, Respondent filed a yet another motion for substitution for cause. Respondent alleged that Judge Lopez had made false statements in the sanctions order, and had discriminated against him. Following a hearing before Judge Steele (Judge 8), Respondent's motion was denied. Respondent filed a motion to reconsider and that motion too was denied. The case was then transferred back to Judge Lopez.
The Illinois Appellate Court entered an order affirming the three Rule 137 sanctions orders against Respondent. (A.Ex. 33). The court noted that the trial court had "suffered through a nightmare" due to Respondent's willingness to act "in contravention of court orders, the rules of the court, and codes of professional conduct." (A.Ex. 33 at 2). The court
found Respondent's accusations against the judges to be completely unfounded and unprofessional. (A.Ex. 33 at 17).
Respondent's Conduct in this Case
1. The First Hearing.
The hearing was scheduled for September 9, 2010. The Respondent requested a continuance because he stated he needed time to coordinate character witnesses. His motion was granted and the hearing on the Administrator's complaint was scheduled for Monday, November 8, 2010. On November 1, 2010 Charles Allen filed an appearance for the Respondent. He also filed a motion for a continuance indicating a scheduling conflict. The motion was not accompanied by an affidavit as required by Commission Rule 272.
On November 3, 2010 the motion was denied. On November 8, 2010 neither Allen nor the Respondent appeared for the hearing. Attempts were made to reach Allen and Respondent. But these attempts were unsuccessful and the hearing proceeded in their absence.
During a recess in the hearing, counsel for the Administrator reported that he received a garbled message from Allen. Because he could not understand the message, he immediately attempted to call Allen. He was unsuccessful but he did leave a voicemail that the hearing had commenced and that either he or the Respondent should immediately contact the ARDC.
At the hearing, Judge Lopez testified that Respondent's repeated filing of motions for substitution for cause forced the opposing party to appear and defend the allegations, and also placed a unwarranted burden on the judicial system. It forced Judge Lopez to direct that neither party would be allowed to file any further post decree pleadings without leave of court. Such an order was unusual, but Judge Lopez testified he wanted to have greater ability to control pleadings by Respondent, who seemed determined not to conclude the litigation. Judge Lopez
further testified at hearing that Respondent's conduct needlessly prolonged the litigation. He estimated that 90-95% of his time on the Smith case was spent dealing with meritless accusations by Respondent.
On December 7, 2010, Allen filed a motion to withdraw as counsel for Respondent. In the motion, Mr. Allen stated that when he learned on November 3, 2010 that his motion to continue the hearing had been denied, he arranged for a conference call on November 5, 2010 between himself, Respondent and Respondent's former counsel, James Taylor. They discussed the hearing date of November 10, 2010, and, according to Mr. Allen, Respondent agreed during the call "to facilitate [Mr. Taylor's] effort to cover at the hearing." Allen stated that the next time he heard from Respondent was November 8, 2010 at approximately 9:00 a.m. Respondent said he was at a hospital and could not appear for a hearing. Mr. Allen then called Mr. Taylor and learned that Respondent had not talked to Mr. Taylor since the November 5, 2010 phone call.
On December 8, 2010 Respondent filed a motion to vacate the Hearing Board's order finding misconduct. He stated that he was at the emergency room of the Hines VA Hospital from 8:15 a.m. to noon on November 8, 2010. He stated he was diagnosed with bronchitis, and was given medication and sent home. He stated he "was on bed rest until November 19, 2010". (C. 144). The Administrator filed an objection to the motion arguing that Respondent failed to file any medical records in support of his claims. On January 3, 2011, the Chair allowed Allen's motion to withdraw, but denied Respondent's motion to vacate the November 8, 2010 order.
On March 8, 2011, the Hearing Board issued a Report and Recommendation finding that all of the charges of the Administrator's Complaint had been proven and recommending that Respondent be suspended from the practice of law for six months and until
further order of the Court, with reinstatement conditioned on Respondent's completion of the ARDC professionalism seminar.
2. The First Review Board Report.
Respondent filed exceptions, alleging that the Hearing Board erred in proceeding in his absence; in finding that Respondent's failure to attend the hearing aggravated his misconduct; and in recommending a suspension. In addition, he requested that his medical record be reviewed to confirm his inability to attend the November 8, 2010 hearing and that the hearing be reconvened in order to provide him with the opportunity to fully respond. This Board found that the Hearing Board correctly went forward with the hearing, affirmed the findings of misconduct, but recommended remanding the matter to the Hearing Board stating:
In this case, Respondent claims he should receive at most a censure, a resolution that is clearly out of the question. The Hearing Board felt a suspension until further order of the Court was appropriate. It may be. The Administrator suggests that a suspension of six months with professionalism training would be adequate. The Administrator also seems concerned that the Hearing Board put too much weight on the Respondent's failure to appear at the hearing.
The Hearing Board's sanction recommendation does appear to be based, at least in part, upon Respondent's failure to appear for his disciplinary hearing. We believe that such a sanction of suspension, including until further order of the Court, may still be appropriate. We are troubled that Respondent may have deliberately engaged in a continuing pattern of delay. We are also concerned that his statements regarding his illness, particularly his statement about being on bed rest, was apparently false. In our view, a lawyer who conducts himself as he did in the underlying case and this disciplinary case poses a risk to clients and needlessly complicates the legal process. However, without the benefit of a more complete record regarding the evidence in both aggravation and mitigation of Respondent's misconduct, we do not have the evidence before us with which to make a fair and complete assessment of the appropriate sanction recommendation in this matter.
In May 2012, the Court remanded the matter for the purpose of hearing evidence in mitigation and aggravation and argument regarding the appropriate sanction.
3. The Second Hearing.
Respondent did not testify at the hearing and offered no explanation regarding his misconduct or his failure to appear at his first hearing or to even make sure the hearing panel was contacted. However, his medical records were attached as an exhibit to his motion to vacate and were placed under seal. Those records reveal that he went to the Emergency Department of Hines VA hospital on Monday, November 8, 2010 at about 8:35 a.m. He was given physical, laboratory and x-ray examinations all o which were normal. The only finding was "a dry cough." At 12:05 p.m. he was discharged in "good" condition with no written prescriptions or instructions. There is no mention of bed rest. So the clear inference is the Respondent's statement made in his motion on December 8, 2010 that he was on bed rest until November 19, 2010 pursuant to doctor's orders is not true.
While the Respondent chose not to testify at the sanction hearing, he presented five character witnesses. Judges Anthony Young, Pamela Hill-Veal and William Stuart Boyd each testified that Respondent's demeanor was respectful when he appeared in their courtrooms and never filed frivolous motions. The Hearing Board, who was in the best position to judge the witnesses' demeanor, viewed Respondent's character testimony as "modest, at best" and accorded it minimal weight as mitigation. We give deference to, and agree with, the Hearing Board's assessment of the character testimony.
Attorney Howard Brookins testified that he has known Respondent for fifteen years. He said he had never seen the Respondent act in an unprofessional manner. But also acknowledged that he never had been in a case or matter in which the Respondent represented a client and that he had never discussed the Respondent's reputation with others.
Congressman Danny Davis testified that he had known the Respondent for about a decade. He explained that the Respondent helped Davis with "expungement summits" where attorneys help Davis' constituents get criminal convictions expunged. The Hearing Board noted that Congressman Davis failed to provide any details regarding the time expended by Respondent or the exact nature of Respondent's involvement in the summits.
On March 19, 2013, the Hearing Board issued its second Report and Recommendation. The Hearing Board again recommended that Respondent be suspended for six months and until further order of the Court. The Hearing Board concluded that the evidence introduced at his second hearing did not abate their concerns about Respondent's ability to conform his conduct to the rules. They also noted that Respondent never addressed the discrepancy between Respondent's medical records and his statement that he was on complete bed rest. The Hearing Board stated, "even if Respondent's absence and subsequent delay in providing information to this panel were due to legitimate medical issues, we cannot ignore the fact that he made no effort at the time of the hearing to ensure that he had representation, nor did he contact the clerk's office regarding his illness and had he done so, the hearing may have been continued to a time when he could participate and these remand proceeding would have been avoided." (C. 607-608).
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, 981(2006). In determining the appropriate sanction, this Board considers the nature 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, 1200 (2003).
Like the Hearing Board, we are troubled by the fact that the Respondent's conduct was carried out over several years. The reckless allegations were part of a pattern of conduct. Precedent supports a suspension for such conduct. See, e.g., In re Samuels, 126 Ill.2d 509, 535 N.E.2d 808 (1989)(pattern of misconduct weighed in favor of a suspension); Cf., In re Chiang, 07 CH 67 (Review Bd., Jan. 30, 2009), recommendation adopted, No. M.R. 23022 (May 18, 2009)(suspension stayed in part by a period of probation where the respondent's false statements about the integrity of judges were more limited and were born of incompetence and unfamiliarity with the area of law). Like the Hearing Board, we conclude that a period of suspension is warranted.
We also agree that the suspension should be until further order of the Court. The remand provided the Respondent the opportunity to explain his conduct and provide some assurances that he can conform his conduct to appropriate standards. This he did not do. Instead he would have us assume that he will. Unfortunately, there is no basis for such an assumption. Like the Hearing Board, we conclude that the Respondent was gaming the system. His answers to the Complaint were not forthright, his failure to show up for the hearing and his failure to follow-up promptly after he did not show up, are clear indications that he does not value his professional responsibilities. We are also troubled by the motion he filed after the first hearing in which he suggested he was discharged to bed rest for ten days when in fact, he was discharged in good condition, with no instructions and physical findings no worse than a "dry cough."
This type of active disregard of this process is not something that precedent shows should be tolerated. See, In re Spiegel, 2011 PR00045 (Hearing Bd., Feb. 22, 2012) at 12, affirmed, (Review Bd., Dec. 27, 2012), approved and confirmed, No. M.R. 25942 (May 20, 2013) (failure to reply to pleadings and arriving late to the hearing considered in aggravation); In re Paden, 04 CH 116 (Review Bd. Oct. 5, 2007), recommendation adopted, No. M.R. 22089
(May 19, 2008) (respondent's attempt to delay the hearing by claiming she was ill noted in aggravation).
The Respondent had an opportunity to demonstrate that he appreciated the seriousness of misconduct and that he could be trusted to handle client matters in compliance with the rules. He took a pass on that opportunity. In our view the suspension should be until further order of the Court. When the suspension has ended, he will have an opportunity to demonstrate his bona fide interest in being a lawyer.
We affirm the Hearing Board's findings and recommend to the Court that Respondent, Ross Lee Haith, II, be suspended for six months and until further order of the Court with the further condition that he be required to complete the ARDC Professionalism Seminar as a condition of reinstatement.
Jill W. Landsberg
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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office onNovember 27, 2013.
Kenneth G. Jablonski, Clerk of the