Filed December 9, 2013

In re Samuel J. Cahnman
Respondent-Appellee

Commission No. 2009PR00118

Synopsis of Review Board Report and Recommendation
(December 2013)

This matter arises out of the Administrator's three count Complaint charging Respondent with misconduct. The Hearing Board concluded that Respondent engaged in misconduct only with respect to one count that charged Respondent with misconduct in making statements to a judge in a court proceeding as to how Respondent had received a page from the judge's personal appointment book. The Hearing Board concluded that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) with respect to his statements to the judge and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5). However, the Hearing Board concluded that Respondent did not make a false statement of material fact to a judge in violation of Rule 3.3(a)(1) as alleged by the Administrator, because Respondent's statement to the judge was not material within the meaning of the Rule. The Hearing Board recommended that Respondent be censured.

Upon review, the Administrator sought reversal of the finding that Respondent did not violate Rule 3.3(a)(1). The Respondent sought reversal of the findings that Respondent violated Rules 8.4(a)(4) and 8.4(a)(5) and requested that the Complaint be dismissed. The Review Board affirmed the finding of the Hearing Board that Respondent violated Rule 8.4(a)(4). The Review Board reversed the finding that Respondent violated Rule 8.4(a)(5) in light of the recent Court opinion in In re Karavidas, 2013 IL 115767 (Nov. 15, 2013). The Review Board recommended that Respondent be censured.

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

In the Matter of:

SAMUEL J. CAHNMAN,

Respondent-Appellee,

No. 3121596.

Commission No. 2009PR00118

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

SUMMARY

This matter arises out of Respondent's conduct in taking a Sangamon County judge's personal appointment book, making a copy of a page from the book and attaching it to a motion, and then being less than candid when asked by the judge how he obtained the appointment book page.

The Hearing Board concluded that, as a result of Respondent's actions as set forth above, Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5). However, the Hearing Board concluded that Respondent did not make a false statement of material fact to a judge in violation of Rule 3.3(a)(1) as alleged by the Administrator, because Respondent's statement to the judge was not material within the meaning of the Rule. The Hearing Board recommended that Respondent be censured.

The Administrator asks this Board to reverse the finding that Respondent did not violate Rule 3.3(a)(1), although the Administrator is not seeking a sanction recommendation more severe than a censure. The Respondent asks this Board to reverse the findings that

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Respondent violated Rules 8.4(a)(4) and 8.4(a)(5) and dismiss the Complaint. We affirm the finding of the Hearing Board that Respondent violated Rule 8.4(a)(4). We reverse the finding that Respondent violated Rule 8.4(a)(5) in light of the recent Court opinion in In re Karavidas, 2013 IL 115767 (Nov. 15, 2013). We recommend to the Court that Respondent be censured.

THE HEARING BOARD'S FACTUAL FINDINGS

At the time of Jeanne and David Samuel's divorce, David, a doctor, was ordered to pay Jeanne certain amounts for child support. David moved to Louisiana after the divorce and in 2004, he filed a petition in Sangamon County for relief from his obligation of support. No further action was taken on the petition and in 2006, his counsel withdrew. In 2007 Jeanne filed a motion to establish an arrearage in the payments due from David. In February 2007, the Hon. Charles Gramlich held a hearing on Jeanne's motion. Because David's motion was no longer properly before the court, he advised David, who was pro se, to set his motion within thirty days. He then entered a judgment for arrearage against David for approximately $86,000.

In September 2007, the court ruled that David's motion to reduce child support "was either usurped by Judge Gramlich's order setting arrearage?or it was abandoned by Dr. Samuel." David then retained Respondent to represent him in modifying his support. David informed Respondent that he believed that he had set a hearing date before Judge Gramlich for March 1, 2007 but alleged that counsel for Jeanne had an ex parte communication with Judge Gramlich resulting in a cancellation of the March 1 hearing date.

Respondent investigated his client's allegations by checking the court file, which contained no notice of hearing for March 1. Respondent knew that the judges in Sangamon County maintained personal appointment books and he wanted to see if Judge Gramlich's appointment book reflected a hearing on David's matter for March 1.

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The appointment book was kept on the desk of Shirley Vinson, a receptionist for five judges in Sangamon County who had been employed in that capacity for twenty years. Vinson worked in an area that was not open to the public but that could be accessed by attorneys through a courtroom. In 2007, all hearings were scheduled by hand as the courthouse was not yet automated. Accordingly, Vinson kept the judges' appointment books on her desk. The appointment books were not public and also contained personal appointments for the judges. Attorneys could not schedule matters themselves in the books; only Vinson would write hearing information in the appointment books. While occasionally attorneys might look at an appointment book with Vinson in order to schedule a hearing, she generally kept the book closed on her desk and attorneys were not allowed access to the book.

Respondent never asked Vinson for permission to make a copy of a page from Judge Gramlich's appointment book and she never gave him permission to do so. No attorney had ever made such a request to her and if an attorney had made such a request she would have consulted the judge in question. While there was a copy machine near her desk, if she was at her desk she would have seen someone making a copy.

Judge Gramlich testified that he considered the appointment book to be his personal book. Respondent never asked the judge for permission to copy a page from the book.

Respondent testified that he asked Vinson to look at the appointment book to see if a hearing had been set for March 1, 2007. They looked at the book together. The book showed the case name on the page for March 1, but there was a line through the case name. Respondent testified that he then took the book to the copy machine and he copied the page. He acknowledged it was possible he copied the page while Vinson was on the phone or was otherwise occupied.

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On July 11, 2008, Respondent filed a motion in the Samuel matter alleging that his client had scheduled a hearing for March 1, but that, on information and belief, the hearing was unilaterally canceled by an ex parte communication from the opposing attorney to the court. In support, Respondent attached a copy of the page from Judge Gramlich's appointment book. At the hearing on the motion, on July 18, Judge Gramlich looked at the motion and the exhibits. He was surprised to see the page from his personal appointment book, and asked Respondent where he obtained the page. According to Judge Gramlich, Respondent replied, "something to the effect that Shirley gave it to me" or "I got it from Shirley." Respondent admitted in his Answer to the Administrator's Complaint that "Respondent told Judge Gramlich that Vinson had given him a copy of the March 1, 2007 calendar page."

Judge Gramlich was surprised at Respondent's representation. Following his court call, he talked to Vinson. Vinson was "incredulous" and denied giving Respondent a copy of the page of the appointment book or any prior knowledge that he had copied the page.

Following an additional hearing, Judge Gramlich issued an order finding Respondent in indirect criminal contempt, and noting that Respondent's conduct "impeded, embarrassed, and obstructed the court." While he acknowledged that that language "might have been a bit of overkill" he added that misleading the court does impede the implementation of justice. The judge fined Respondent $100, ordered Respondent to provide a written apology to the judge and to Vinson, and ordered Respondent from using the copy machine without prior permission from the Court Administrator. Respondent appealed the contempt order. The Appellate Court vacated the fine and modified the contempt from indirect criminal contempt to indirect civil contempt.

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WHETHER RESPONDENT VIOLATED RULE 8.4(a)(4)

The Hearing Board concluded that Respondent violated 8.4(a)(4) by intentionally misrepresenting how he had obtained the copy of the page from the appointment book. While there was insufficient evidence to find that Respondent knowingly made an affirmative false statement since the Hearing Board did not know the exact words that were spoken by Respondent, the Board concluded that the statement made to the court was calculated to deceive.

We will not disturb the Hearing Board's factual findings unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). To be against the manifest weight of the evidence, the opposite conclusion must be clearly evident. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). In this case, the opposite conclusion is not clearly evident. The Hearing Board was in the best position to assess the witnesses' demeanor and credibility and we give appropriate deference to the Hearing Board's assessment of Respondent's intent when he made the statements to the court. In re Spak, 188 Ill.2d 53, 719 N.E.2d 747, 754 (1999).

Respondent contends that, as a matter of law, given that the Administrator did not prove Respondent knowingly made an affirmative false statement, he cannot be found to have violated Rule 8.4(a)(4). However, the Court has long held that an attorney violates Rule 8.4(a)(4) by any conduct, statement or omission that is calculated to deceive including "the suppression of truth or the suggestion of what is false." See, e.g., In re Yamaguchi, 118 Ill.2d 417, 426, 515 N.E.2d 1235 (1987). Respondent's conduct clearly falls within the meaning of the Rule.

Respondent also contends that the Hearing Board erred in refusing to consider Respondent's polygraph evidence. We will not reverse decisions regarding the admissibility of evidence unless the Hearing Board abused its discretion. The Hearing Board did not abuse its

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discretion. There is no precedent for allowing such evidence in a disciplinary proceeding Moreover, the Illinois Supreme Court has previously held that evidence of the results of a polygraph examination was inadmissible in an administrative hearing. See, Kaske v. City of Rockford, 96 Ill.2d 298, 450 N.E. 2d 314, cert denied, 464 U.S. 960 (1982) and this Board has previously refused to consider such evidence. In re Feinberg, 90 CH 240 (Review Bd., Aug. 13, 1993).

WHETHER RESPONDENT VIOLATED 8.4(a)(5)

An attorney's conduct is prejudicial to the administration of justice if it has an adverse impact on a judicial proceeding. In re Storment, 203 Ill.2d 378, 399, 786 N.E.2d 963 (2002). In this matter, the hearing on the issue of child support was sidelined by Respondent's actions. The Hearing Board found that as a result of Respondent's misrepresentation to the Judge Gramlich, contempt proceedings were initiated and conducted, an order of contempt was issued and appealed and the Appellate Court considered Respondent's contempt order. Accordingly, we agree that Respondent's actions had an adverse impact on a judicial proceeding.

However, in the Administrator's Complaint in this matter the Administrator failed to clearly and unambiguously plead what specific acts of the Respondent had a prejudicial effect on the administration of justice. Pursuant to the Court's decision in In re Karavidas, 2013 IL 115767 par. 97(Nov. 15, 2013), we must therefore overturn the Hearing Board's finding that Respondent violated Rule 8.4(a)(5).

WHETHER RESPONDENT VIOLATED RULE 3.3(a)(1)

Rule 3.3(a)(1) of the 1990 Rules of Professional Conduct, the rule in effect at the time of Respondent's actions, provided, "In appearing in a professional capacity before a tribunal, a lawyer shall not make a statement of material fact or law to a tribunal which the

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lawyer knows or reasonably should know is false." The Court has never defined materiality for the purposes of Rule 3.3(a)(1). However, this Board has previously stated that material as set forth in Rule 3.3(a)(1) means that the fact must be of some consequence. In re Geleerd, 07 CH 31 (Review Bd., Nov. 22, 2010), at p. 12, recommendation adopted, No. M.R. 24359 (March 21, 2011).

In In re Geleerd, the issue before this Board was whether the respondent had falsely represented to the court in a medical malpractice matter that his two experts had been "engaged". This Board refused to split hairs over the meaning of "engaged" as the respondent had stated that he had two experts "on board." A majority of this Board found Geleerd's statement to be truthful. The Board then went on to say that the statement was not material because Respondent's precise representation was not of any consequence to the issue the judge was deciding. In In re Meyer, 01 SH 81 (Review Bd., Apr. 15, 2004), Administrator's petition for leave to file exceptions denied, No. M.R. 19491 (Sept. 24, 2004), the attorney was charged with a violation of Rule 4.1, which prohibits an attorney from making a statement of material fact or law to a third person that the attorney knows is false. Meyer told an insurance adjuster that he would have his client sign a release although he did not intend to have his client sign the release. This Board concluded that Meyer's statement was false but it was not material because the client had already signed the settlement check with the insurance company and the failure to execute the release did not harm the inquiring insurance company.

Like in Geleerd, Respondent's representation was not of any consequence to the modification issue before the court. We agree with the Hearing Board finding that Respondent's misrepresentation to the court was not material because the manner in which Respondent

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obtained the page from the appointment book would not have affected Respondent's motion for modification of the child support.

The Administrator suggests that a narrow interpretation of materiality will somehow open the door to attorneys to make false statement to judges that do not concern the legal issue then before the court. Given the change in the language of the rule in 2010, this scenario seems unlikely to occur.

RECOMMENDED SANCTION

In recommending a sanction we are mindful that the purpose of the attorney disciplinary system is not to punish the attorney for his 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). A Hearing Board's recommendation as to a sanction is entitled to deference when the Board assessed the attorney's demeanor in connection with its recommendation. In re Schencker, 95 CH 704 (Review Bd., Dec. 30, 1997), approved and confirmed, No. M.R. 14598 (March 23, 1998). The Hearing Board recommended a sanction of a censure. Although we overturned one finding of the Hearing Board, we must look at Respondent's conduct as a whole. In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051, 1061 (1989)("When sanctioning respondent, however, we do not count the number of ethical rules which he violated concurrently by the same conduct, and increase the severity of the sanction the higher the number. Instead, we analyze and pass judgment upon the unethical nature of respondent's conduct as a whole.") We conclude that the Hearing Board's is just and appropriate given the purposes of discipline. Respondent's misrepresentation to the court, and his attempt to suggest malfeasance by a court employee, warrants a sanction.

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A sanction of a censure is also consistent with precedent. In In re Meyer, 01 SH 81 (Review Bd., Apr. 15, 2004), Administrator's petition for leave to file exceptions denied, No. M.R. 19491 (Sept. 24, 2004), as set forth above, although this Board found the attorney's statement to be immaterial, like the Hearing Board in this matter, the attorney was found to have violated Rule 8.4(a)(4) and 8.4(a)(5) as a result of his misleading statement to the insurance adjuster. The attorney was censured. See also, In re Stern, 124 Ill.2d 310, 529 N.E.2d 562 (1988)(Respondent censured for his conduct in backdating a letter pertaining to the date when he obtained certain health insurance. He showed the letter to opposing counsel, but stopped short of using it to his advantage and did not use it in a court proceeding).

CONCLUSION

We affirm the findings of facts of the Hearing Board. We affirm the conclusion of the Hearing Board that Respondent violated Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct. We overturn the Hearing Board's finding that Respondent violated Rule 8.4(a)(5). We recommend that Respondent, Samuel J. Cahnman, be censured.

Respectfully submitted,

Johnny A. Fairman, II
Keith E. Roberts, Jr.
Benedict Schwarz, II

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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on December 9, 2013.

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

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_______________________________
1
The Hearing Board also apparently found that Respondent violated Supreme Court Rule 770 as the Board separately found that Respondent engaged in conduct tending to defeat the administration of justice or to bring the courts or the legal profession into disrepute. In January 2012, the Illinois Supreme Court stated in the case of In re Thomas, 2012 IL 113035 (Jan. 20, 2012), that an attorney who commits misconduct does not "violate" Supreme Court Rule 770. See also, In re Karavidas, 2013 IL 115767 ? 86 (Nov. 13, 2013). In light of the Court's decision in Thomas, we do not find that Respondent violated Supreme Court Rule 770.

2 The 2010 Rule 3.3(a)(1) removes the materiality threshold from the rule, and provides, "A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."