Filed January 9, 2018
In re Deborah Crouse Cobb
Commission No. 2016PR00066
Synopsis of Hearing Board Report and Recommendation
The Administrator filed a one-count Complaint against Respondent on June 30, 2016. The Complaint charged that Respondent failed to provide competent representation to a client in an adoption matter; had a conflict of interest; failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation; and failed to withdraw from the representation of a client where the continued representation would result in a violation of the Rules of Professional Conduct.
The Hearing Board found that all of the charges of misconduct were proved and recommended that Respondent be suspended from the practice of law for sixty (60) days.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
DEBORAH CROUSE COBB,
Commission No. 2016PR00066
REPORT AND RECOMMENDATION OF THE HEARING BOARD
SUMMARY OF THE REPORT
We found that Respondent failed to provide competent representation to her clients in an adoption case by being unprepared for a court hearing and failing to prepare her clients for the hearing. We also found that Respondent had a conflict of interest by representing clients in the adoption case while also representing, in other matters, an adoption agency that was the respondent in the adoption case with interests adverse to her clients. We also found a conflict of interest where Respondent's sister testified on behalf of the adoption agency and adverse to her clients at the hearing in the adoption case. We also found that Respondent failed to explain the conflict of interest and that she was unprepared for the court hearing to her clients in order for them to make informed decisions about her representation. Finally, we found that Respondent failed to withdraw from representing the clients in the adoption case where her continued representation violated the Rules of Professional misconduct. We recommend that Respondent be suspended for 60 days.
The hearing in this matter was held on June 14, 2017, at the Springfield offices of the Attorney Registration and Disciplinary Commission, before a Panel of the Hearing Board consisting of John L. Gilbert, Chair, Stephen R. Pacey, and Ted Eilerman. Denise Church appeared on behalf of the Administrator. The Respondent appeared in person and was represented by Gary Meadows.
The Administrator filed a one-count Complaint against the Respondent on June 30, 2016. The Complaint charged that Respondent failed to provide competent representation to a client in an adoption matter; had a conflict of interest; failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation; and failed to withdraw from the representation of a client where the representation would result in a violation of the Rules of Professional Conduct.
The Respondent filed an Answer to the Complaint, in which she admitted some of the factual allegations, denied others, and denied all of the charges of misconduct.
The Complaint alleged that Respondent: 1) failed to provide competent representation to a client; 2) represented a client when the representation will be directly adverse to another client; 3) represented one or more clients where there is a significant risk that the representation will be materially limited by the lawyer's responsibility to another client, a former client or a third person or by a personal interest of the lawyer; 4) failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; and 5) failed withdraw from the representation of a client where the
representation will result in a violation of the Rules of Professional Conduct, in violation of Rules 1.1, 1.4(b),1.7(a)(1), 1.7(a)(2), and 1.16(a)(1) of the Illinois Rules of Professional Conduct (2010).
The Administrator presented the testimony of Gregory Warren and Janet Warren. The Administrator's Exhibits 1 through 22 were received into evidence. (Tr. 25, 238). The Respondent testified on her own behalf and presented the testimony of Kathleen Hogan Morrison, Susan Wolk, Lyn Kuttin, Duane Bailey, Dan Way and Carrie Carpenter. Respondent's Exhibits 1 through 15 were received into evidence. (Tr. 28).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. See Supreme Court Rule 753(c)(6); In re Edmonds, 2014 IL 117696, par. 35. This standard of proof requires a high level of certainty, which is greater than a preponderance of the evidence (i.e., more probably true than not true) but not as great as proof beyond a reasonable doubt. In re D.T., 212 Ill. 2d 347, 362, 818 N.E.2d 1214 (2004); Bangaly v. Baggiani, 2014 IL App (1st) 123760, par. 206. In determining whether the burden of proof has been satisfied, the Hearing Panel is to assess the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences from the evidence, and make factual findings based upon all of the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126 (1999); In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560 (2004). A Hearing Panel is not required to be "na?ve or impractical in appraising an attorney's conduct," or "be blind to the intent apparent from the evidence." Discipio, 163 Ill. 2d 515, at 524, 645 N.E.2d
906 (1994); In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818 (1988); In re Morask, 2010PR00136, M.R. 26061 (Sept. 25, 2013) (Review Bd. at 14).
An admission of fact in a pleading is a formal judicial admission that is binding on the party making it and dispenses with the need for any proof of that fact. Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the allegations in a complaint it is unnecessary for the Administrator to present evidence to prove the allegations so admitted. See In re Walker, 2014PR00132, M.R. 28453 (Mar. 20, 2017) (Hearing Bd. at 3); In re Duebbert, 2013PR00127, M.R. 27475 (Sept. 12, 2015) (Hearing Bd. at 5).
I. Respondent is charged with failing to provide competent representation to a client, in violation of Rule 1.1 of the Illinois Rules of Professional Conduct (2010).
We find that the Administrator proved Respondent failed to provide competent representation to her clients Janet and Gregory Warren in an adoption case in that she was unprepared for a court hearing and failed to prepare her clients for the hearing.
B. Admitted Facts and Evidence Considered
We considered the following facts that were admitted in the Respondent's Answer.
In the summer of 2012 Janet and Gregory Warren spoke to Respondent about their wish to adopt a baby. The baby was expected to be born in August 2012 and the biological mother of the baby was a niece of Janet. It was anticipated that the baby would be born with non-prescribed drugs in his system. The Respondent's sister Susan Wolk, who worked for Family Choices a private agency that provided adoption services, was also present at the meeting. The Warrens disclosed to Respondent and Susan their prior substance abuse issues and that Gregory was involved in an incident in 1990 that resulted in an indicated finding by DCFS of sexual abuse. Respondent and Susan told the Warrens that if the baby was born with drugs in his system DCFS
would be alerted by the hospital and DCFS would not approve the Warrens as adoptive parents based on their past. Respondent told the Warrens that if the baby was born drug positive Family Choices was likely the only agency that would give them a chance to adopt the baby. Respondent explained to the Warrens that if DCFS took responsibility for the baby, the baby would never be placed with the Warrens, but that if the baby was given to Family Choices, Family Choices may be willing to give them a recommended home study.
The Respondent agreed to represent the Warrens in the adoption proceeding. The Warrens and Family Choices agreed that Family Choices would provide adoption services to the Warrens.
On August 4, 2012, the biological mother gave birth to a male named J.W. The biological parents wanted the Warrens to adopt J.W. On August 8, 2012 the biological parents signed a temporary care agreement by which Family Choices obtained custody of J.W. and placed him with the Warrens. On about October 9, 2012, the biological parents signed surrenders of their parental rights to Family Choices.
On January 4, 2013, Respondent filed a Petition for Adoption in the Circuit of St. Clair County, Case No. 13-AD-01, on behalf of Janet and Gregory Warren. The petition noted that the Warrens were aunt and uncle of the biological mother. After January 2013, the Warrens met with the appointed guardian ad litem (GAL), Lorri Mott, completed their drug evaluations, and submitted to psychological evaluations by Dr. James Reid.
On November 18, 2013, GAL Mott set the adoption case for a case management conference to be held in court on November 22, 2013. Prior to the court proceeding, Mott told Respondent that Mott had received the psychological evaluations for the Warrens; that Mott had discussed them with the judge; and that a hearing was set to discuss the evaluations. Based on
Mott's statements, Respondent assumed there was "something wrong or bad in the evaluations." Prior to the November 22, 2013, court proceeding Respondent did not obtain a copy of the evaluations or discuss the evaluations with the Warrens. At the November 22, 2013, court hearing, the Warrens were present along with J.W., who was then over one year old. Also present were Respondent, Susan, and GAL Mott. At the conclusion of the hearing, the judge dismissed the Warrens' adoption petition and ordered J.W. immediately removed from the courtroom and from the care of the Warrens.
We also considered the testimony of the following witnesses.
Janet Warren testified that she is 48 years of age and is married to Greg Warren. They have five children living in their household. The Warrens are the natural parents of four of the children, and they have the other child under a guardianship agreement. The ages of the children are 7, 8, 14, 15 and 17. One of the children was born with a birth defect and was "medically fragile for three years." Janet has been the primary caretaker of that child, with the assistance of nurses who came to their home. Janet was a cosmetologist for 10 years, but then stayed home after she and Greg had children. All of their children are home schooled. Their family attends services at the Delhi Baptist Church, usually three times a week. (Tr. 64-66, 71-72, 114).
Previously, Janet and Greg wanted to adopt a child named Joseph, who was the son of Janet's niece. Joseph lived with her and Greg for a short period. However, DCFS said no to the adoption and removed Joseph from their home because of an earlier, 1990, sexual abuse incident by Greg involving a stepdaughter. (Tr. 66, 117).
In June 2012, after Joseph was removed from them, Janet and Greg went to see the Respondent. They met with Respondent alone for a few minutes and then Susan, who worked at Family Choices, joined them. They first discussed the situation with Joseph, and Respondent told
them there was nothing she could do for them in that matter. Janet then told them about another possible adoption by her and Greg. Janet said another niece wanted Janet and Greg to adopt her child (J.W.) who was to be born in August.
Janet and Greg discussed with Respondent and Susan their past drug problems and the fact that Greg had an indicated finding for sexual abuse with a girl named Stephanie in 1990. The incident with Stephanie occurred before Janet and Greg were married. Stephanie told Janet about the incident, and Greg admitted it to Janet. Both Stephanie and Greg told Janet there was only a single incident. Also, at the meeting, Greg talked about his current use of Tramadol. Janet did not recall if either Respondent or Susan asked about the dosage of Tramadol Greg was taking. After Janet and Greg had disclosed the information about their past, Respondent told them they would need evaluations because of their past problems and that if they tested "low risk" there would not be a problem. Both Janet and Greg were agreeable to the evaluations. Janet said she knew that she and Greg would test low risk because of the way they have been living their lives for "multiple years." They also knew that the evaluations had to be done in order to complete the adoption. (Tr. 67-74, 81, 110-11, 114-18).
Janet said that during the above meeting both Respondent and Susan were very positive. Respondent did not tell them there would be a "problem" or that the adoption would be an "uphill battle." Janet explained that if she was told it would be an uphill battle, "[w]e would not have gone forward having just lost Joseph. We wouldn't have even hired them if we would have gotten any negative feedback at all." Janet acknowledged that Respondent did not "guarantee" the adoption of J.W., but Respondent "just talked very positive about it." After the meeting with Respondent and Susan, Janet and Greg were excited about the chance of adopting the baby. (Tr. 69-73, 109, 118).
J.W. was born heroin addicted. The doctor told Janet that she was able to take care of him based upon her having previously cared for a "medically fragile child." The doctor also gave Janet instructions regarding how to take care of J.W. Janet described her care of J.W. For example, she had to give him medicine on a regular basis, including during the night. He was subject to seizures, and Janet had his bed next to her. He often cried during the night and it was "very hard to console him." She did not get a lot of sleep during the two months that J.W. was going through withdrawal. (Tr. 77-79).
The first time Respondent told the Warrens that the evaluations needed to be completed by a certain date was in letter she sent to them on June 23, 2013. (Adm. Ex. 11). In the letter, Respondent said the final hearing was set for September 20, 2013. Janet was surprised when she read the letter. Janet noted that, in the letter, Respondent referred to Greg as "Roger" and incorrectly stated that the Warrens had not met with the GAL. Prior to the letter, Respondent did not mention any deadline. Janet added that Respondent "always" deferred to Susan, and Susan "was hard to get a hold of." (Tr. 82-83).
After receiving the above letter, Janet made an appointment with Gateway to get the evaluations completed. Janet called the office of Respondent and Family Choices and asked a secretary named Tanya if Gateway would be acceptable to do the evaluations. Janet explained that "early on" when she called that office, she did not know "who worked for whom." She later learned that Tanya worked for both Respondent and Family Choices. (Tr. 83-84).
Janet said that prior to the June 23, 2013, letter from Respondent, she made "numerous" telephone calls and asked for Respondent or Susan to "call me back and that seldom happened." Because she did not receive calls back, Janet just "popped into their offices." She recalled that she popped into their offices two times prior to receiving the June 23, 2013, letter. On one
occasion, Janet went to the offices to make a payment of $3,000. Susan spoke with her and told to make the check payable to Family Choices. (Tr. 84-85, 107).
Janet noticed what she believed was a complete change in the demeanor of Respondent and Susan in October 2012 after Janet's niece signed the final surrenders. She mentioned, as an example, that one time when she popped into their offices and was trying to speak with Susan about the evaluations and Gateway, Susan was "very short and just curt, and not very nice." Susan said "we told you what you needed to do" in a "very hateful" manner. Respondent was present but "just allowed it" and "was just no help." (Tr. 85-87).
After the Warrens had gone to Gateway for an evaluation, Janet made an appointment with a psychologist whose office was in Well Springs. When she got there, an intake person asked her questions and was typing information into the computer. Later, the psychologist called Susan and told her he would not do an evaluation because the Warrens lied. Susan called Janet and "basically chewed me out and said I lied." Janet replied that she did not lie and had no reason to do so. Janet said there must have been a miscommunication. (Tr. 87-89).
Susan told Janet to go to a psychologist in Charleston and Susan was going to provide Janet with the phone number of the psychologist. Over a month later, possibly two months, Susan called Janet and told her the psychologist in Charleston was retired. Susan then told Janet to call Washington University. Janet did so the same day and was able to get appointments for her and Greg with Dr. James Reid. (Tr. 91).
On September 17, 2013, Janet received an e-mail from Susan. In that e-mail (Adm. Ex. 14), Susan said the letters Janet obtained from Gateway were not sufficient. That e-mail also stated that the adoption of J.W. was "an uphill battle." Janet said this was first time that either Susan or Respondent told her or Greg the adoption would be an "uphill battle." Susan also stated
in the e-mail that she was waiting for the report of Dr. Reid and that his report needed to go to Susan. The Warrens subsequently met with Dr. Reid. (Tr. 92-93, 107).
After receiving the above e-mail, Janet went to the offices hoping to speak only with Respondent. However, Susan was also present. Among the things Janet wanted to talk with Respondent about was the intake matter from Well Springs. Janet tried to explain the Well Springs matter, but Respondent did not seem to listen and was "very sarcastic." Respondent said to Janet "you get what you pay for." (Tr. 89-90, 93-94).
Janet was asked if she told Susan that she (Janet) watched Greg "carefully" or was "vigilant about Greg around girls or the children." Janet replied that Susan mentioned something about Janet trusting Greg and Janet replied to Susan "I've never seen anything from my husband towards my kids." Janet was also asked if she called the Respondent's/Family Choices offices and asked a secretary whether she had to be "truthful with an evaluator." Janet replied that both Susan and Respondent had told her to be totally honest and Janet made the inquiry because she was thinking about whether she needed to mention an incident that happened when she was a teenager where there was no police report made. Janet did not know whether the matter was relevant because it was so far in her past. (Tr. 94-95).
Janet received and read the report of Dr. Reid. (Adm. Ex. 17). Janet said that Respondent never asked her for a copy of that report. (Tr. 96).
A court hearing in the adoption matter was set for November 22, 2013, before Judge Stephen Rice. Janet said the hearing was referred to as a status hearing and Janet thought it was "like an update of some sort." Respondent did not meet with Janet to prepare for the hearing in anyway. In fact, Janet had no communication with Respondent about the hearing. A couple of days before that court proceeding, Respondent's secretary, Sandra, called and told Janet to bring
J.W. to the court proceeding. Janet asked if she could also bring her older children to court, and Sandra said not to do so. Also, prior to the hearing Janet was not aware that the Guardian Ad Litem was against the adoption. (Tr. 96-97, 103, 119).
Susan testified at the hearing on November 22, 2013, and Janet did not agree with some of the things Susan said in regard to Dr. Reid's evaluations. When Susan "was misconstruing things," Janet looked at Respondent and asked if she had read the evaluations of Dr. Reid. Respondent replied no. Respondent asked Susan a couple of questions and then Janet and Greg gave statements. Janet said she was not prepared to make a statement. Janet felt that Respondent was not representing her and was "saying things that were not true also." For example, from what Respondent said to the judge it sounded like the child involved in the sexual abuse incident with Greg in 1990 was removed from their home, which was not true. It was another child, Joseph, who was removed from their home in about 2012. Janet thought Respondent was "putting us in the worst possible light." (Tr. 98. 99-102, 110).
When the hearing was concluded Judge Rice said he was dismissing the Warren's adoption petition and ordered the Warrens to give up J.W. immediately. Susan gave Janet an hour with the child, and then he was taken from the Warrens. (Tr. 103-104).
Janet further testified that she and Greg "weren't represented at all from the legal profession [and it] resulted in the most horrible pain I have ever experienced." She also said that this matter "horribly affected our children." (Tr. 107-108).
On cross-examination Janet acknowledged she first used drugs briefly when she was 14 years of age. After that she resided in a mental health facility in Kansas for a while. After being discharged, Janet returned to Illinois. She did not use drugs then for "quite a few years" and went to beauty school. From the age 21 to age 30 she used marijuana and alcohol. She also used
cocaine for a period of time. She said she never used Vicodin. Janet was still using drugs when she first met Greg, and Greg was also using drugs. (Tr. 112-14).
Greg Warren testified that he and his wife Janet reside in Brighton, Illinois. They have four children together. Additionally, a nephew through marriage also lives with them. Janet is a stay at home mother and the children are home schooled. Greg also has an adult son and he adopted a step-daughter named Stephanie, who is now an adult. Greg works at Keller Construction as a contractor and heavy equipment operator. He previously had his own contractor business for about ten years. He has been a member of the Delhi Baptist Church for about ten years. (Tr. 30-32, 42).
He was aware that there were problems in regard to the proposed adoption of the baby named J.W. One of the problems was an incident involving him and his stepdaughter Stephanie in about 1991, when Stephanie was eleven years old. The incident was reported to DCFS and DCFS made a founded report against Greg. Later Stephanie made other allegations against him, but no founded report was issued. Greg was not prosecuted for any conduct with Stephanie. Greg said he discussed the incident involving Stephanie in detail with Dr. James Reid and it is in Dr. Reid's report. (Adm. Ex. 17 at 6). Susan never asked him for any contact information for Stephanie. (Tr. 33-34, 43, 55-57).
Another issue in the proposed adoption was the prior drug use by him and Janet. This is also detailed in Dr. Reid's report. (Tr. 34-35; Adm. Ex 17 at 5). Greg began using amphetamines in high school and also began drinking alcohol. After high school he began to use cocaine until about 1992 or 1993. He has had health problems with his back for many years. He used Vicodin and became addicted to it. About ten years ago, his doctor took him off Vicodin, and prescribed Tramadol for his back pain. His current prescription is for 400 milligrams of
Tramadol per day. (Tr. 35, 52-54). Greg said the last time he used a nonprescription drug was about 25 years ago. Both he and Janet stopped using illegal drugs before they were married. Janet was aware of Greg's drug use and the founded finding in the incident with Stephanie. (Tr. 34, 36).
The Warrens previously wanted to adopt a baby named Joseph. However, they were unable to do so after DCFS opposed the adoption. The decision by DCFS was based upon the previous finding of sexual abuse against Greg. (Tr. 36-37).
Greg and Janet met with Respondent one time prior to the birth of J.W.. Susan was also present for at least part of the meeting. During the meeting, the Warrens discussed their prior drug use. Greg said he mentioned his use of Tramadol at either this first meeting or at a second meeting shortly after J.W. was born. Also, at the first meeting, Greg discussed the incident involving Stephanie. Greg and Janet signed some documents; however, he did not read the documents, saying that he trusted Respondent and Susan." (Tr. 37-39, 41, 50, 58).
Prior to the hearing in November 2013, Greg was unaware that Family Choices was not going to support the Warrens adoption of J.W.. He received Dr. Reid's evaluation (Adm. Ex. 17 at 1-13) and thought it was "on point and very good." In the evaluation, Greg was described as low risk for re-offending on the sexual abuse issue and for relapse on drug use. When he, Janet, and J.W. went to court on November 22, 2013, he thought it was "an update on the adoption process with Judge Rice." Greg never met with Respondent to prepare for the hearing. At the hearing, Susan made some unfavorable comments about Greg and Janet. Greg said he expected a lawyer to "stand in for you and help you as a partner," but Respondent did not do so at that hearing. Greg made a statement at the hearing, but "had no idea" how to rebut the issues Susan had spoken about. He expected Respondent to make an objection or do something after he was
"blind-sided with the whole procedure." Respondent could have said she had not read Dr. Reid's reports and needed "some more time." (Tr. 44-47, 50).
At the conclusion of the hearing, Judge Rice dismissed the Warrens' adoption petition and J.W. was removed from them that day. Greg has not seen J.W. since then. Greg said he was "totally shocked" and that it felt like "someone took part of my life away." (Tr. 47-48).
Greg and Janet had one subsequent meeting with Respondent. She told them she wouldn't blame them if they wanted to get a different attorney. The Warrens did hire another attorney and there was further litigation which was not successful. (Tr. 48-49).
On cross-examination Greg was asked the following question and gave the following answer.
Q. If [Respondent]in the moment, at the time of the hearing, believed that it was likely to make things worse if she started trying to cross-examine Susan, for example, or started arguing with the judge more, do you have any reason to believe she's wrong in that opinion?
A. I do have a reason to believe she would be wrong just because she didn't read the report from Dr. Reid. She had no idea what he had said that was good.
Respondent testified that she is 63 years of age and has practiced law for more than 30 years. She handled her first adoption case in 1986 and within 10 years her entire practice consisted of adoption matters. She has handled about 150 to 200 adoption cases each year. She described Family Choices as a child welfare agency that can do home studies for adoption cases. She explained the contents of a home study. There are other private agencies in her area that also do home studies for adoptions. Family Choices was formed in about 2003. Respondent said that about 70% of her adoption cases involved DCFS, about 10% involved no agency because there
were relative adoptions, about 10% or less involved Family Choices, and about 10% involved other private agencies, such as Lutheran Family Services. (Tr. 124-26). She is still doing mostly adoption work and plans to continue her practice for at least a few more years. (Tr. 124-26, 142-43, 169).
Respondent's first contact with Janet and Greg Warren occurred after Janet called and made an appointment to meet with Respondent in 2012. At their meeting, the Warrens first discussed the matter in which a child of a niece of Janet had been placed with the Warrens and then in a few weeks the child was removed by DCFS. Respondent understood that the decision by DCFS to remove the child from the Warrens was based upon the fact that Greg Warren, some years earlier, had a founded allegation for sexual abuse. Greg told Respondent that about 12 years earlier he had "molested his stepdaughter [Stephanie]." He went on to disclose that he "touched her inner thigh, that when he had figured out what he was doing wrong, he immediately withdrew, and that nothing else happened." Greg also told her "he felt self-loathing after this" incident with Stephanie. Respondent acknowledged that she was aware that Greg felt "very bad about what happened with Stephanie." (Tr. 179). Respondent then told the Warrens that there was nothing she could do for them in the foregoing matter. She said she was not aware of any case in which DCFS had placed a child in a home where someone in that home had a history of sexual abuse. (Tr. 133-37, 179).
The Warrens then mentioned to Respondent that they were interested in adopting another child. The child (J.W.) was to be born in August 2012 and the mother was another niece of Janet. They told Respondent that the mother was a heroin user and the child might be born drug positive. Respondent then took a short break from talking to them, went to her computer, and checked records pertaining to Greg. She found that no criminal charges had been filed against
him and he was not on the sexual predator list. Respondent then asked Greg what was going on with him at the time of the abuse incident. He told her that he was using drugs heavily, he was high at the time, and he was in the process of divorcing his ex-wife. Greg also told Respondent about the prescription drug he was currently taking. After considering Greg's background, Respondent thought if she could prove that Greg was not a risk to a child, there was "a good chance of winning this case." (Tr. 137, 138, 139, 171-172).
Respondent explained to the Warrens that if the baby was born drug negative, they could do a private adoption without involving any agency as a placement entity. She also told them that if the baby tested drug positive, the hospital was required to inform DCFS, and an agency would have to be involved. She then discussed with them the possibility that Family Choices might agree to work with them in this case. Respondent said she disclosed to the Warrens that her mother was director and her sister, Susan, was a caseworker for Family Choices. Respondent asked the Warrens if it was okay for Susan to come into the meeting, and the Warrens agreed. When Susan came into the room, Respondent introduced her to the Warrens as a caseworker for Family Choices and told them it was possible Family Choices would agree to take the case. During this meeting, Susan did not say whether Family Choices would be willing to assist the Warrens. (Tr. 139-141).
Respondent advised the Warrens that she would take their case if they did a home study and if Greg had a psychological evaluation showing he was low risk for recidivism. She also told Greg she wanted a drug evaluation showing that he was not likely to use drugs again. The Warrens appeared receptive to her conditions. (Tr. 142-43). Respondent told the Warrens she was "going to hypothetically pass this by the Presiding Judge [Judge Heinz] in Family Court of St. Clair County, to see if a judge would . . . give [their case] consideration." Respondent did
speak informally with the judge. She said when she detailed the hypothetical history, the judge looked "a little strange." Ultimately, the judge said "he would give that case a fair hearing." (Tr. 145-46).
The Warrens did not hire Respondent at the first meeting. Respondent identified a text message, dated July 9, 2012, she wrote on her firm's posting system. (Resp. Ex. 1). The message says she consulted with the Warrens for one hour. Respondent said she met with the Warrens on that same date or shortly before. (Tr. 147-48).
The next time Respondent heard from Janet Warren was on Saturday, August 4, 2012, when Janet telephoned her from the hospital. Janet told her the baby had been born and tested drug positive. Respondent replied that she would get Susan and they would come to the hospital, which they did. Upon arriving at the hospital, Respondent was introduced to the birth mother, her mother, and the birth father. Respondent discussed the fact that an agency would have to be involved because the baby was drug positive. The birth mother signed temporary care or custody papers to Family Choices. If she had not done so, DCFS would have taken temporary custody of the baby. (Tr. 148-52).
While still at the hospital, Respondent spoke with Janet alone. They discussed the terms of Respondent's representation. Janet decided to pay Respondent a flat fee of $3,000 plus expenses, rather than an hourly fee, for the proposed adoption. Respondent also told Janet, either at this meeting or their next meeting, that she needed to identify the people who would do the evaluations, and to look at her insurance policy to figure out who her insurance company would pay to do the evaluations. (Tr. 152-54).
After the birth parents signed surrenders in October 2012, the child the Warrens sought to adopt became available for adoption. Thereafter, Respondent filed a Petition for Adoption on
behalf of the Warrens. (Adm. Ex. 9). Lorri Mott was appointed GAL in the case. Respondent noted that Lorri died shortly after the hearing in November 2013. (Tr. 156).
After the petition was filed, Respondent had contact with Janet, but not with Greg. Janet came to Respondent's office three or four times, and made a number of phone calls. Respondent said that "mostly" her secretary would report that Janet had called and what the secretary told Janet. During one of Janet's visits to the office, Respondent again told her to "contact her insurance and find out who was covered by her insurance." Janet did not say anything about expecting Respondent to tell her who to see for the evaluations until after Respondent sent a letter to Janet in June 2013. (Adm. Ex. 11). In the letter, Respondent told Janet that they "need to get going" on the evaluations because Judge Rice had set the matter for final hearing on September 20, 2013. This was the first time Respondent told the Warrens that the evaluations had to be done by a certain time. After receiving the letter, Janet came back to Respondent's office and asked about who was going to do the evaluations. Respondent reminded Janet about expecting her to look at her insurance. Respondent also suggested that Janet look at Gateway or TASC, but Respondent did not know if they would work with her. Respondent denied that she ever told Janet that "you get what you pay for." (Tr. 157-59, 172).
At some point, Susan told Respondent that a potential evaluator said that Janet had lied. Susan did not say that Janet lied. Respondent did not do anything in regard to the potential evaluator because at that time the Warrens were getting a different evaluator. (Tr. 173-74).
On about November 18, 2013, the GAL set the Warren adoption matter for a Case Management Conference on November 22, 2013. (Adm. Ex. 16). A couple of days before the case management setting, Respondent's secretary informed her that Family Choices had received the evaluation reports prepared by Dr. Reid. (Adm. Ex. 17). Respondent did not receive a copy
of them because the Warrens had not signed a waiver for her to do so. Respondent then "said something" to Susan about the evaluations being back, and Susan said "yes, Lorri says not to talk to you." Respondent replied "okay." (Tr. 159). Thereafter, Respondent did not talk with Susan about this case. (Tr. 176, 197-98). Also, Respondent did not ask the Warrens for a copy of Dr. Reid's evaluations. When asked why she did not do so, Respondent replied "I didn't think to ask them about it." (Tr. 160, 176, 186, 193, 196-97).
Based upon the above conversation with Susan and the fact that Lorri had set the case for status, Respondent believed there was something "problematic" or "bad" in the evaluations prepared by Dr. Reid, and it was something "we were going to need to address." (Tr. 159-60, 196).
Respondent explained that she did not feel it necessary to read Dr. Reid's evaluations prior to the court hearing because the case was set for only a "case management" hearing. Respondent explained that "we've had glitches and hiccups in cases before, and we set a conference, we sit down, we talk about it, and we figure out what to do to fix it." (Tr. 160). Respondent acknowledged that it was her "thinking going into the [case management] hearing that [she] would hear what the issues were, and [she] would be given a chance to either try to fix it, or resolve it, or talk to people about what they thought." (Tr. 160). She said the matter was set for a case management hearing, which "is not an evidentiary hearing" and "we're not there for evidence." She was relying on it being a status hearing because "[w]e were not set to do anything else." (Tr. 160-161, 177, 191-92, 196, 198).
Respondent went to court on November 22, 2013. She acknowledged that she never had the evaluation reports prepared by Dr. Reid (Adm. Ex. 17) at the time of this court proceeding. (Tr. 160, 177, 186, 193, 196-97). When Judge Rice asked Respondent what the problems were,
Respondent made an opening statement. (Adm. Ex. 18 at 4-7). The judge then swore everybody in and let them start talking. Respondent said that was not unusual for Judge Rice. (Tr. 161-62, 193).
Susan testified and expressed her concerns about the placement of the child with the Warrens. At one point Susan said Greg never apologized to Stephanie but brought her a bike. At that time, Respondent noticed a reaction from Judge Rice. (Tr. 162-63, 178-79). Susan also said she had "grave concern" about the fact that both Janet and Greg "were sexually molested as children repeatedly; however, when his daughter stated he had molested her on more than one occasion it was immediately stated she had been lying." (Tr. 181). Judge Rice made the comment that "when the abuse occurred with the adoptive daughter both parents believed the daughter was lying." Susan replied "[a]ccording to this report, and the judge noted the "report came from their own words." Respondent acknowledged that she did not clarify for the judge that the Warrens did admit one incident of abuse. (Tr. 182-83).
Susan further testified she had grave concern about Greg's use of Tramadol. Respondent acknowledged that Susan doesn't really have the credentials that Dr. Reid has when it comes to being able to analyze abuse issues." Respondent acknowledged she did not bring out the foregoing point at the hearing. (Tr. 184-85). Respondent acknowledged that she was not prepared to address the alleged multiple touchings of Stephanie because she did not know that Stephanie had "alleged multiple touchings." (Tr. 179-80).
Respondent said that, during the hearing, she was thinking she would have "to show Judge Rice that this was an okay placement." She said she was also thinking they were going to have an evidentiary hearing and she would "have to get the man who had done the psychologicals to come in to testify because the report showed he [Greg] was low risk for
recidivism, and the report showed some other issues with this family that I was unaware of before that, issues I wouldn't have considered particularly germane other than the fact that both Lorri and Susan were considering them germane." Respondent said it was her thinking that, instead of cross-examining Susan and going over the same things again, to "basically try to get out of there, revamp, and come back on a motion to reconsider." (Tr. 164-66).
The Warrens were given an opportunity to speak at the hearing and they did so. Respondent thought Janet did "very well." Respondent said that "Judge Rice does really well with narratives by people telling their side of the story," and that was one of the reasons she was not opposed to the Warrens talking to the Court. (Tr. 162-63, 178-79, 185).
Respondent said that Joyce Crouse, her mother, could overrule Susan on behalf of Family Choices, and that it had occurred at least once. (Tr. 175). However, she did not tell Judge Rice during the hearing that Susan's position could be overruled by Joyce Crouse. Likewise, she did not tell Judge Rice that he could approve the adoption even without Family Choices going along with it. (Tr. 175-76), 185-86). Respondent testified that she did not recall telling Judge Rice during the hearing that she had not read the evaluations of Dr. Reid. She then added that "I do recall telling him that before we went on the record." However, in her sworn statement to the ARDC Respondent was asked "[b]efore [Judge Rice] made the ruling, did you tell him you hadn't the evaluations." Respondent replied "I don't think I did, no. I don't remember telling him that." (Tr. 177-78).
Respondent was asked if her opening statement at the hearing was confusing because it "almost made it sound like Stephanie had been removed from Greg's household after DCFS became involved. Respondent replied that did recall the statement and did not think it was confusing. (Tr. 183-84).
Respondent said she believes she effectively represented the Warrens at the hearing on November 22, 2013, "given the situation, given the eloquence with which Janet presented herself at that point in time, given Judge Rice and his inclinations." (Tr. 185). Respondent also said she had never before experienced a situation in which the judge at a status conference dismissed the adoption petition and removed the child. (Tr. 160-61).
Respondent met with the Warrens a few days after the hearing. She said she was willing to file a motion to reconsider for them if they asked and also told them they could hire other counsel. (Tr. 168-69).
Susan testified that she is the sister of the Respondent. Susan described her educational and employment background. Her resume was received into evidence. (Tr. 207-209, 237; Adm. Ex. 22). Susan said Family Choices was opened in 2003 to fill a need in southern Illinois for an agency to assist all the population, including non-Christians, same gender couples, and financially burdened couples to obtain adoptions. Family Choices never had a contract with DCFS and was able to handle cases in which DCFS might not approve. (Tr. 207- 11).
The first time Susan met Janet and Greg was when she went into a room where Respondent was talking with them. One of the first things mentioned was that Susan and Respondent were sisters. They then discussed the options for making the potential adoption case move forward for the Warrens. Susan told them that, if she was to be involved, she wanted them to have drug and psychological evaluations. Also during that meeting Greg stated that he used Tramadol for pain, but did not mention that he took it daily. Susan said his use of Tramadol "didn't phase" her because she "assumed it would be under similar conditions to my kids that when there was an outburst of serious pain, he would then turn to Tramadol." (Tr. 213-15).
Also at the first meeting, Greg told Susan he had a prior founded child abuse incident. He went on to said the incident occurred with his stepdaughter when she was in his care, and that he "had placed his hand on her thigh inside of her short leg, the leg of her shorts, and that when he realized that . . . [it] was just horrible and wrong, and moved his hand immediately." At the same meeting both Janet and Greg told her they had been on drugs in their youth, they got clean, and have not used drugs for several years. (Tr. 215-16).
On August 4, 2012, Respondent called her and told her J.W. had been born. Susan prepared a temporary care agreement and other documents. She then went to the hospital with Respondent. Present at the hospital were the birth mother, her mother, Janet, and a male who Susan did not know. She also thought Greg was there. Susan prepared a "case note' (Resp. Ex. 2) regarding her trip to the hospital. The "case note" is dated August 14, 2012. Susan said the foregoing date is a typo, and that she prepared it on August 4, 2012, after she left the hospital. According to the "case note," Respondent informed the family that DCFS involvement would change the case and, to avoid that, an agency like Family Choices could take custody of the child. The Respondent also explained "that in order for this to work Janet and Greg would have to pass an agency Home Study." Susan said she then told Janet and the birth mother that Janet and Greg would have to pass an agency Home Study, and that if they didn't do so, "we couldn't make a placement with that family, and we would come back to the birth mother and try to locate her to try to have her input on subsequent placement." Susan said she also explained that this was an "uphill battle." The birth mother signed a Temporary Care Agreement that placed temporary custody with Family Choices. (Tr. 220-25, 240).
The next meeting Susan had with the Warrens was on the day the baby was released from the hospital. The Warrens called her, and then came to her office and signed the Foster Care
Placement Agreement. She said she explained to them that there could not be an Adoptive Placement Agreement until the Home Study was completed and "they needed to get moving on their home study process so we could move forward." (Tr. 226).
The birth parents signed surrenders in October 2012, which made the child available for adoption. Susan was present when the surrenders were signed. Respondent was not present. During the following months, Janet would sometimes call and came to Susan's office about every two weeks. Susan said that either she or her secretary would remind Janet about the need for the evaluations "at almost every single phone call or stop by." Janet would reply that they were "getting ready to work on it." This went on for several months. (Tr. 228-29).
Susan said that certain things Janet said caused some concern. For example Janet told her "she was being very vigilant, and she kept an eye on Greg, and never left the children alone with him." Also, Janet said "she had been so vigilant that when [Greg] smacked one of the kids in the bathtub she had called the police on him." Susan also asked both Janet and Greg for contact information for Stephanie, but neither of them provided it to her. (Tr. 229-232).
Susan received and read the evaluation reports prepared by Dr. Reid. (Adm. Ex. 17). She was concerned about some of the information in the reports and sent a copy of the reports to, Lorri Motts, the GAL. Lorri then asked Susan to identify the parts she was concerned about. Susan did so, and Lorri replied that she was concerned about the same issues. Susan later testified about her concerns at the hearing on November 22, 2013. Susan did not discuss her concerns with Respondent prior to the hearing. (Tr. 234-35). Susan said that Lorri told her not to discuss Dr. Reid's report with anyone without a signed release to do so. The Warrens could have given the reports to Respondent. (Tr. 242, 244).
While Susan was driving to the hearing on November 22, 2013, she received a telephone call from Lorri, who asked if Family Choices would be prepared, if necessary, to place the child in foster care. That was the first indication to Susan that it was possible the child might be removed that day. Susan did not share this information with Respondent. Susan said she was still surprised when Judge Rice ordered the child removed. (Tr. 235-36).
Judge Stephen Rice
Judge Rice testified by evidence deposition on June 8, 2017. (Resp. Ex. 15). He has been a judge in St. Clair County since 1999, and was assigned to the Family Division on two occasions, for three and four years, respectively. He has presided in adoption matters on and off for the majority of his judicial career. (Resp. Ex. 15 at 4-5).
Judge Rice presided at the hearing in the Warrens adoption case on November 22, 2013. He has reviewed the transcript of that hearing. He said his memory has been refreshed as to some things, but he does not recall "every detail." On the day of the hearing, but before it commenced, he met with the GAL, Lorri Mott. Her job was to look after the best interests of the child and make recommendations to him. During their meeting, Mott discussed the psychological reports for Janet and Greg. She mentioned there were some "very troubling" things in the reports and said she "was not in agreement with the adoption." Mott informed him of the founded sex abuse attributed to Greg and the history of drug abuse by both Janet and Greg. Judge Rice could not recall if Mott showed him the reports at their meeting. He also did not recall if the reports said anything about a "low risk of relapse." Also, he did not recall if Mott mentioned what the position of Family Choices was as to the adoption. He said he did not form the opinion that the placement with the Warrens in all likelihood was not going forward, but wanted to hear what everyone had to say. He noted, however, that issues of drug use and sex abuse raise a red flag and cast "great doubt" on whether an adoption should go forward. Judge Rice was asked if he
has ever rejected the opinion of the GAL in an adoption matter, and he replied that he could think no time when he did so. (Id. at 6-10, 19).
When Judge Rice entered the courtroom on November 22, 2013, Respondent and Susan were present. He is aware that Respondent and Susan are sisters. During the hearing, Susan expressed reservations and concerns about the Warrens and going through with the adoption. The Warrens also addressed him at the hearing. He said the Warrens seemed sincere. He added that "there were a few things I was looking for them to say that they didn't say." (Id. at 10, 14-16).
Judge Rice pointed out that the guardian ad litem was very concerned about the prior sex abuse finding and the prior drug use. Also, Susan made allegations "which by themselves I wouldn't have taken as evidentiary except that the Warrens had the opportunity to refute what she said, and what concerned me most and I've seen this many times before this, when you have abuse allegations, the thing that stands out is whether or not there's a denial." He added that "Ms. Wolk had indicated that both were in denial originally concerning the abuse . . . [and] I was expecting them to say . . . we didn't really deny . . . that it happened, but they didn't do that and that caused me great concern." Instead, the Warrens "wanted to talk about the present."( Id. at 16-18, 20-21, 27, 26, 33).
On cross-examination, Judge Rice acknowledged that the adoption case was scheduled for a status call on November 22, 2013. (Id. at .18-19). The Warrens were entitled to an evidentiary hearing if they wanted it, but he felt his ruling was the "best way to resolve the case." Judge Rice acknowledged that he did not think an "evidentiary hearing would have swayed [him] too much," but added "I can't say for sure." (Id. at 30-31).
Finally, Judge Rice said the Warren case was unusual. He said he could not recall another case that had "allegations of this sort." He also said he was not surprised that Respondent did
not ask Janet or Greg any questions because they were given a "full opportunity to say what they wanted to say." (Id. at 22-23).
We also considered the following exhibits:
The Report of Proceedings for the November 22, 2013, hearing in the adoption matter. (Adm. Ex. 18).
The Psychological Report of Gregory Warren, dated November 9, 2013, prepared by Dr. James Reid. (Adm. Ex. 17 at 1-13).
The Psychological Report of Janet Warren, dated November 9, 2013, prepared by Dr. James Reid. (Adm. Ex. 17 at 14-24).
C. Analysis and Conclusions
We find that Respondent violated Rule 1.1 of the of the Illinois Rules of Professional Conduct (2010) by failing to provide competent representation to her clients Janet and Gregory Warren at the court proceeding in the adoption matter on November 22, 2013.
Rule 1.1 of the Illinois Rules of Professional Conduct (2010) provides that a "lawyer shall provide competent representation to a client." The Rule goes on to say that "[c]ompetent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Comment  to Rule 1.1 also mentions preparation and sates that the competent handling of a particular matter "also includes adequate preparation."
Attorneys have been found to have provided incompetent representation when they demonstrated a lack of thoroughness in the investigation or preparation for the particular representation and were inadequately prepared themselves or failed to adequately prepare their clients in the particular matter.
In In re Grigsby, 00 SH 58, M.R. 18695 (May 22, 2003), the respondent was found to be incompetent in his representation of a criminal defendant who had been sentenced to death. The
respondent was appointed to represent the defendant who had filed a pro se post-conviction petition. The respondent did not file an amended petition, and the pro se petition was dismissed. The Hearing Board stated that "any competent attorney . . . would have known, or would have learned through minimal research, that [his client's] pro se petition was deficient and would be dismissed for failing to include affidavits or other evidence to support the claims." Also, the respondent's investigation "fell far short of what was required of a competent attorney." He did not view physical evidence, interview possible witnesses, and did not even review the entire record. "In short, the respondent did nothing to prevent [his client's] pro se petition from being properly dismissed." (Hearing Bd. at 18-19) (Review Bd. at 1-2). In regard to the appeal from the foregoing dismissal, the brief prepared by respondent did not comply with Supreme Court Rules. "A competent attorney handling an appeal would at a very minimum know, or find out, the format required for briefs" and "would know by doing minimal research that a reviewing court may dismiss an appeal when an appellant's brief fails to include citations to the record or an Appendix." (Hearing Bd. at 21-22).
In In re Sohn, 08 SH 35, M.R. 22810 (Jan. 20, 2009), the respondent was appointed to represent a man charged with criminal sexual assault. The complaining witness suffered from Downs Syndrome. The main issues at trial were whether force had been used, whether the sexual act was consensual, and whether the complaining witness was able to understand and give knowing consent to the act. The respondent spoke with his client only one time, by phone, shortly after he was appointed. The respondent did not interview any of the State's witnesses, including the complaining witness, and did not make any effort to obtain her medical or employment records that might bear on her ability to consent to the sexual contact. The Petition to Impose Discipline on consent stated that respondent failed to provide competent
representation by, among other things, failing to provide the thoroughness and preparation necessary for the defense of his client.
In In re Britton, 04 CH 13, M.R. 19885 (Jan. 14, 2005), the respondent was found to have failed to provide competent representation in three separate adoption cases. In the first matter, respondent represented M. F. in the adoption of her four special needs foster children. The respondent met with M.F. for about 15 minutes before the court proceeding and told her how to change the children's' names and informed her that she would receive subsidies for the children. The judgment of adoption was entered.
However, prior to the judgment, respondent did not tell M.F. that the amount of the subsidies, would be based on the private agency subsidy rate or that it was possible to negotiate and request the state subsidy rate, which was significantly higher. Also, respondent never discussed the records of the children that were available at DCFS or the incidents in their past that would likely affect their behavior. After the adoption, M.F. discovered that one of the children had been sexually assaulted and another child had ADHD, was physically combative with adults. M.F was able to get an increase it subsidy, but the increase was not retroactive. (Hearing Bd. at 6-7).
The respondent in Britton was also found to have failed to provide competent representation in another case. He represented Mr. and Mrs. A in the adoption of their two foster children. Both children had "significant medical and psychiatric histories" that were in DCFS records and available to respondent. However, respondent never obtained or discussed the information with his clients. Also, respondent did not advise his clients that an updated level of care assessment should have been done so that they would be eligible for a significant increase in subsidy. After the adoption, one of children required "extensive residential treatment" and the
other "had multiple placements in the behavior hospital because of his aggression in the home toward his mother." The Hearing Board noted that the depth of the boys' needs at the time they were adopted was not understandable to Mr. and Mrs. A, but that it was or should have been understandable to the respondent who was an adoption attorney panel member." (Hearing Bd. at 8-10). Respondent also provided in a prior matter. (Hearing Bd. at 10-12)
Finally, in In re Washington, 99 CH 58, M.R. 19844 (Mar. 18, 2005), the respondent was found to have provided incompetent representation in two death penalty cases. He first represented a man named Howery who was convicted of four counts of first degree murder. At the sentencing hearing respondent failed to present "mitigating evidence that could have been presented." The Hearing Board noted that the respondent's decisions were not based upon "coherent trial strategy, but rather an unreasonable feeling of hopelessness followed by a weak attempt to investigate mitigation evidence and present witnesses." (Review Bd. at 2-4). In the other case, respondent presented no mitigation evidence on behalf of his client, named Orange, at the death penalty sentencing hearing. The respondent "admitted that he did not investigate possible mitigation evidence." (Review Bd. at 4-6).
Based upon the above, competent representation requires an attorney be thoroughly prepared to adequately represent a client in the particular matter or proceeding. We find that Respondent failed to provide competent representation to Janet and Gregory Warren at the court hearing on November 22, 2013.
Respondent knew at her first meeting with the Warrens that, because of their histories, psychological evaluations of them were necessary, perhaps crucial, to a favorable result in their adoption case. On November 18, 2013, the GAL, set the adoption case for a case management conference to be held in court on November 22, 2013. Prior to the court proceeding, Mott told
Respondent that Mott had received the psychological evaluations for the Warrens; discussed them with the judge; and a hearing was set to discuss the evaluations. Also, about two days before the scheduled court proceeding, Respondent asked Susan about the psychological evaluations. Susan acknowledged she had received them but declined to talk with Respondent about them based upon a conversation Susan had with Mott. Respondent testified that Susan said Mott had told her not to talk with Respondent. Susan testified that Mott said not to discuss the evaluations with anyone for whom the Warrens had not a waiver. Respondent admitted that after her conversations with Mortt and Susan, she believed there was "something wrong," "problematic," or "bad" in the evaluations."
Even though Respondent believed the Psychological Reports for the Warrens contained problems that would have to be addressed, she made no effort to obtain and read those Reports. Respondent could have obtained a copy from the Warrens. Respondent could have asked the Warrens to sign a waiver so that Susan could have discussed the reports with her. Respondent did neither. When asked why she did not ask the Warrens for a copy of the Reports, Respondent replied "I didn't think to ask them about it." Respondent sought to justify her failure to obtain the reports prior to the court proceeding by relying on a belief that the court proceeding would only be a status hearing and not a hearing at which testimony or other evidence would be presented. She explained that she was going to the court proceeding to find out what the issues or problems were in the Psychological Reports and prepare to address them at a subsequent hearing.
Even if Respondent believed that the case management conference would only consist of a discussion of Dr. Reid's psychological evaluations of Janet and Gregory and the perceived concerns they raised, it was not competent representation to appear at a proceeding for discussion about a certain document, especially a document important to the outcome of the case,
while she was completely ignorant of the contents of the document. It does not benefit a client to allow an opposing party or representative to make statements to a judge regarding adverse information about the client when the client's attorney has no knowledge of the contents of the document from which the purported adverse information came. Such an attorney, who has not read the pertinent document, is in no position to knowledgeably participate in or make objections during the discussion. In other words, the attorney is not adequately prepared, and adequate preparation is a requirement for competent representation.
In any event, the Respondent's conduct at the court hearing on November 22, 2013, was not consistent with her testimony before us. She did not simply listen and learn what problems or bad things were contained in the evaluations. Also, she did not object to an evidentiary hearing. Instead, after the GAL informed Judge Rice that the psychological evaluations of the Warrens were received and that she wanted to have people appear to "determine how we're going to proceed today," Respondent made a statement to the judge in which she disclosed negative information about her clients' backgrounds and that she had asked the previous family court judge if he "would be willing to at least consider an adoption to my clients if they successfully passed a home study and successfully passed a psychological indicating that the chances of recidivism of drug abuse and/or sexual abuse were not there for this child." Because she had not read the Psychological Reports, she was unable to even inform Judge Rice that Dr. Reid had determined that Janet's "probability of relapse is low" and that Gregory "appears to be at the lowest level of risk for re-offending."
We fail to comprehend how Respondent's negative statements about the Warrens to the judge were beneficial to or in the interest of her clients. It appeared that she was attempting to justify why she even filed the petition for adoption on behalf of the Warrens. Thus, before the
GAL or Susan mentioned the substance of the Psychological Reports, Respondent had already cast her clients in an unfavorable light. That was not competent representation.
Following Respondent's statement, Judge Rice swore in Susan, Mott, and the Warrens as witnesses. The Respondent did not voice any objection to having an evidentiary hearing, even though she knew she had not read the Psychological Reports which she expected to be discussed during the testimony.
Susan testified first and expressed to the judge six concerns she had regarding the Warrens based upon information in the Psychological Reports. Susan first noted that, although she had been aware of the DCFS founded allegation against Greg for child molestation in 1990, she was told the child involved was Greg's "stepdaughter." She testified that "[a]s I read the evaluation I was surprised to find that it was actually his legal child, his daughter, because of adoption. The evaluation of Greg shows that he disclosed to Dr. Reid that he had "adopted [the girl] in 1983." Respondent could have questioned the significance of this concern of Susan in light of Greg's full disclosure to Dr. Reid. Also, if Respondent had obtained a waiver and discussed the concerns of Susan prior to the hearing, she could have discussed this matter with Greg prior to the hearing so that he was prepared to provide an explanation.
The second concern Susan expressed was that the evaluation indicated that "Mr. Warren didn't feel it necessary to apologize for the act but did feel it necessary to purchase his stepdaughter or his legal daughter a bicycle to make up for the act." If Respondent had read the evaluation, she would have known and could have pointed out to the judge that Dr. Reid mentioned that Gregory reported "intense self-loathing, "suicidal ideations," "hated life," and "felt like scum." following the incident in which he touched his daughter.
The third concern Susan expressed was that the report stated:
both Mr. Warren and Mrs. Warren indicate that they were sexually molested as children repeatedly. However, when his daughter stated he had molested her on more than one occasion it was immediately stated that she had been lying. And I'm not sure how going through what the two of them went through and having it happen more than once they can just automatically assume that, oh hey, she lied. That is a grave concern.
(Adm. Ex. 18 at 10). It is obvious from the transcript that Judge Rice was very much concerned about Susan's allegations regarding the Warrens assuming that the adoptive daughter was lying about the sexual abuse by Greg, based upon "their words" to the psychologist. The transcript shows that Judge Rice said "[a]nd despite that background, when the abuse occurred with the adoptive daughter both parents believed that the daughter was lying . . . that report comes from their own words." In his deposition, Judge Rice pointed out that Susan made allegations "which by themselves I wouldn't have taken as evidentiary except that the Warrens had the opportunity to refute what she said, and what concerned me most and I've seen this many times before this, when you have abuse allegations, the thing that stands out is whether or not there's a denial." He added that "Ms. Wolk had indicated that both were in denial originally concerning the abuse . . . [and] I was expecting them to say . . . we didn't really deny . . . that it happened, but they didn't do that and that cause me great concern." Instead, the Warrens "wanted to talk about the present."
We point out that Respondent acknowledged she was not prepared to address the alleged multiple touchings of the adoptive daughter because she did not know that she had "alleged multiple touchings."
We also point out that we found no mention by Dr. Reid in the evaluations that Janet assumed or believed the adoptive daughter was lying. If Respondent had read the evaluations, she or any competent attorney would have challenged Susan's testimony in that regard. We note
that Janet's testimony before us was that the adoptive daughter only mentioned one such incident to her and she believed that allegation to be truthful. Additionally, it was totally inaccurate for Susan to claim that Greg "just automatically assume[d] that, oh hey, she lied" when "his daughter stated he had molested her on more than one occasion." Greg did not have to assume anything because he had personal knowledge of whether or not there was more than one incident. By saying there was only one incident, he was making a statement based upon his personal knowledge and not on any assumption. Further, it could have been pointed out to Judge Rice that the only information regarding the allegation of multiple incidents came from Greg's candid disclosure to Dr. Reid, along with an explanation of why she made those allegations and that there was absolutely no evidence that multiple incidents occurred.
Finally, Respondent could have made sure that Judge Rice understood that Greg fully admitted one sexual incident with the adoptive daughter and that Janet also believed it occurred. However, Respondent did nothing.
Both Janet and Greg were completely unprepared to make any statement at the hearing on November 22, 2013. Clearly, Judge Rice was very concerned about what the Warrens failed to address during their testimony. Respondent, an experienced adoption attorney, failed to assist the Warrens in preparing to testify at the hearing. Yet, she made no objection to them testifying and made no effort to ask them questions that might have produced favorable information. In short, Respondent simply cut her clients loose and let them flounder without any guidance by counsel. Competent representation requires much more.
The fourth concern voiced by Susan was that, although Greg told her at their first meeting he was taking Tramadol as prescribed by a physician, Susan learned from the evaluation that "he takes Tramadol every day for the pain." She added that Tramadol is "emotionally and mentally
addictive." This concern suggests that Greg may have been less than completely truthful when he met with Susan. It would seem that Susan was making an assumption that Greg knew it would reflect negatively on him as a parent if he disclosed his daily dose of Tramadol. We find no factual basis for such an assumption. Certainly Greg was candid with Dr. Reid in regard to the Tramadol. Also, Respondent acknowledged in her testimony that Susan "doesn't really have the credentials that Dr. Reid has when it comes to being able to analyze abuse issues." Yet, Dr. Reid made no adverse finding based upon Greg's lawful use of Tramadol. However, Respondent did not mention the foregoing point at the hearing.
The fifth concern expressed by Susan was "at no time does it seem that either Mr. or Mrs. Warren take responsibility for any actions. Based on Mrs. Warren's statements to the counselor, the house rules are not their rules, they are God's rules." This was also mentioned in Dr. Reid's evaluation, but he noted that a home visit "is likely to shed greater light on the social, emotional, behavioral and educational functioning of the Warren children." In other words more information was needed in this regard. Although Janet sought to address this matter during her testimony, she did so without any guidance by or preparation with Respondent. If Respondent had adequately investigated by obtaining waivers and finding out Susan's concerns prior to the hearing, she could have assisted Janet with her testimony.
The sixth concern voiced by Susan was that the Warrens "had an absolute year of time to completely disclose everything to this agency, as we read [the Psychological Reports] there are things we weren't aware of." An argument could have made that this was the fault of the people experienced in adoptions cases, that is, Susan and Respondent, by not meeting with the Warrens and asking the pertinent questions. Instead, Susan was assuming that the Warren knew what information was relevant and what was not. For example, Susan could have asked the Warrens
about Gregory's prescription for the Tramadol and they could have asked if any other allegations of sexual abuse were ever made against Greg. Dr. Reid was able to obtain the information.
Susan also addressed the judge and raised questions about whether Gregory "was a low risk of . . . becoming a sexual offender again." Respondent said nothing in response. At Respondent's first meeting with Greg she asked him about circumstances in his life at the time of the sexual abuse incident. He told her that, at the time, he was "heavily using drugs, he was high at the time, and this occurred when he and his ex-wife were in the process of divorce." Also, it was undisputed that he stopped using illegal drugs, cocaine, by 1994, and has not been addicted to a prescription drug since about 2003. Also, he has been married to Janet since 1994. Thus, his situation at the time of the hearing in 2013, was substantially different than in 1990. Further, Dr. Reid concluded that "Mr. Warren appears to be at the lowest level for risk for re-offending." None of the foregoing information was mentioned by Respondent at the hearing.
Susan concluded her testimony at the hearing on November 22, 2013, by stating that Family Choices could not approve the Warren's adoption petition and that "I do not believe there is any agency in the State of Illinois that will do a home study for this family that will be an approving home study." Later in the hearing, Respondent told Judge Rice that she agreed with the foregoing statement by Susan, saying "Family Choices has indicated they will not provide a home study. And I do agree with the statement, I know of no agency that will do it." The foregoing gratuitous statement by Respondent was clearly unnecessary and clearly directly contrary to the interests of her clients.
Based upon the above, we find the Administrator proved by clear and convincing evidence by clear and convincing evidence that the Respondent failed to provide competent
representation to her clients Janet and Gregory Warren at court proceeding before Judge Rice on November 22, 2012, in violation of Rule1.1 of the Illinois Rules of Professional Conduct (2010).
II. Respondent is charged with engaging in a conflict of interest by representing a client when the representation will be directly adverse to another client, in violation of Rule 1.7(a) (1)of the Illinois Rules of Professional Conduct (2010).
A. Summary of Charge II
We find that the Administrator proved Respondent had a conflict of interest by representing Mr. and Mrs. Warren in an adoption case while also representing in other matters Family Choices, an adoption agency that was the respondent in the adoption case with interests adverse to the Warrens.
B. Admitted Facts and Evidence Considered
We considered the facts admitted in Respondent's Answer and the evidence set out in Section I, above. We also considered the following facts admitted into evidence.
Family Choices was incorporated in 2002 as a not-for-profit corporation to provide adoption services. In November or December 2015 it did not renew its license. The Respondent's mother, Joyce Crouse, was the executive director of Family Choices and Family Choices employed the Respondent's sister, Susan, and Respondent's brother, Kevin Crouse. Respondent maintained her law office in the same building where Family Choices also maintained an office. The building was owned by Respondent's husband. Family Choices did not pay rent to Respondent's husband for the use of the office space.
Respondent's law practice has been generally focused on adoption law. At times relevant to the Complaint, Respondent represented Family Choices, appeared in court on behalf of Family Choices, and provided advice to Family Choices. She also assisted her family members, who were associated with Family Choices, in legal matters.
Respondent prepared a list of cases in which Family Choices was involved with Respondent's cases. (Adm. Ex. 3). Respondent said the list contains a few cases in which she "actually appeared in the name of Family Choices in a case." She explained that such cases were either juvenile court cases in which a juvenile court termination was necessary in order to facilitate the adoption, or in cases involving an abandoned baby in which parental rights had to be terminated pursuant to statute. Respondent added that in all of the foregoing cases "my clients were the ultimate adoptive parents that the child had already been placed with, and it was just [that] Family Choices had to be the nominal Petitioner." (Tr. 128-29). She said she has handled about 10 to 15 juvenile court cases and about six abandoned baby cases. She also said she never got paid by Family Choices in those cases. Respondent said she understood she "could not act as Family Choices' lawyer when [she was] representing the adoptive parents to an adoption." Thus, when she was "in for Family Choices, [she was] actually looking after" the "adoptive parents," rather than Family Choices. She "had to appear in the name of Family Choices because they were the ones who had standing to try to get the child freed up." (Tr. 130-31).
Respondent said she discussed with the Warrens at their first meeting the possibility that Family Choices might agree to work with them in their adoption case. Respondent said she disclosed to the Warrens that her mother was director and her sister, Susan was a caseworker for Family Choices. Respondent asked the Warrens if it was okay for Susan to come into the meeting, and the Warrens agreed. When Susan came into the room, Respondent introduced her to the Warrens as a caseworker for Family Choices and told them it was possible Family Choices would agree to take the case. During this meeting, Susan did not say whether or not Family Choices would be willing to assist the Warrens. (Tr. 139-141).
Respondent said, at their first meeting, she also disclosed to the Warrens that she "did work for Family Choices on occasion" and told them "there was a potential conflict of interest because of my relationship with these people [at Family Choices]." Respondent said she believed the Warrens "understood what [she] was talking about. Respondent also said she did "infer" that the Warrens were "fine with the conflict type issues" when they agreed for Susan to join in the meeting. (Tr. 140-41).
Respondent said she felt she "described to the Warrens [the] potential conflict of interest because of [Respondent's] relationships with Family Choices." She added that a potential conflict of interest "means that at some point in time a situation could evolve where I would be in conflict because of what was going on, and it might be a situation where I could no longer continue to effectively represent them." (Tr. 186-87).
Respondent acknowledged that it would be a conflict of interest for her to represent the adoptive parents, such as the Warrens, and in the same case represent Family Choices. In the Warrens' case, Respondent did not represent Family Choices and, thus, she felt there was no conflict of interest. (Tr. 187-88).
Respondent's secretary sent a letter to the Warrens with a contract for them to "read, review and sign." (Resp. Ex. 3). The date on the letter is July 6, 2012, which Respondent said is incorrect. She said the letter was actually sent on August 6, 2012. Respondent noted that she had not even met with the Warrens by July 6, 2012. Respondent identified Respondent's Exhibit 4 as a standard contract that Respondent used in 2012. She said the contract refers to the conflict issues that she generally discusses orally with her clients. Respondent has not been able to find a contract signed by the Warrens, and she has no explanation for it being missing. (Tr. 154-56).
Janet testified that at the meeting in June 2012 with Respondent and Susan, the subject of conflict of interest if she were hire Respondent and Family Choices "was never brought up." They never discussed what would happen if Respondent and Family Choices "would disagree at some point." Also, Respondent never mentioned what would happen if Family Choices did not support the Warren's request to adopt. Janet thought that by hiring both Respondent and Family Choices she and Greg were hiring a "team" and that it was "going to be positive" and an "advantage." The foregoing meeting was the only one Janet and Greg had with Respondent or Susan prior to the birth of the baby they wanted to adopt in August 2012. (Tr. 73-75).
Janet and Greg had a second meeting with Respondent and Susan on August 9, 2012, which was the day Janet took the baby home after he was born. At this meeting Janet learned for the first time that Respondent and Susan were sisters, Janet believed that the fact they were sisters was "a good thing" and "was going to work in our favor." Janet did not learn that Respondent's mother was executive director of Family Choices until after the court hearing in November 2013. (Tr. 75-76). Also at that meeting, either Respondent or Susan presented a document to Janet to sign. The document is entitled Family Choices Initial Contact Disclosure and Waiver (Resp. Ex. 5), and contains the initials and signature of Janet. Janet did not recall what the document contains, and said she did not read it closely because she trusted Respondent and Susan. She added that "I would have signed anything they gave me." Janet said that prior to signing the document Respondent never explained the issues that could come up based upon Janet "hiring Respondent as her lawyer" and the "opposing party was Respondent's sister, mother and brother as Family Choices." (Tr. 79-80).
Greg and Janet met with Respondent one time prior to the birth of the baby they wanted to adopt. Susan was also present for at least part of the meeting. Greg and Janet signed some documents. However, he did not read the documents he signed, saying that he trusted Respondent and Susan." (Tr. 37-39, 41, 50, 58).
Greg was asked if Respondent explained to him during either of their first two meetings "what a conflict of interest is and how it would work in this case." Greg replied that "it wasn't explained to us at all." At first, Greg was not aware that Respondent and Susan were related, but later learned they were sisters. The issue of conflict of interest in regard to the Warrens hiring both Respondent and Susan was never discussed. Also Respondent never talked about what would happen if Family Choices didn't support the Warrens' position. (Tr. 40-41).
Susan testified that she and Respondent were involved in adoption cases together prior to the matter of Janet and Greg Warren. She estimated that it occurred about 10 to 20 times a year. Family Choices was also involved in adoption cases in which other lawyers represented the adoptive parents. (Tr. 211-12).
The first time Susan met Janet and Greg Warren was when she went into a room where Respondent was talking with them. One of the first things mentioned was that Susan and Respondent were sisters. (Tr. 213-15).
Susan stated that it was her recollection that she told the Warrens "that if at some point in time something would happen that would conflict, that we would expect [Respondent] to move forward with her clients, and we would just not talk to her about anything." (Tr. 219).
Susan gave the Warrens an "application packet" and "went through several documents with them." Susan said she discussed the relationships of Joyce, herself, Respondent, and
Family Choices. Susan said there were "twenty-five to thirty" documents in the packet. She told them to take the packet home and review the documents. She explained that if the case moves forward, they would have to complete the packet and return it to her office. The Warrens took the documents, and nothing was signed that day. The last page of Respondent's Exhibit 5 refers to it having been signed on September 6, 2012. There was no meeting with the Warrens on that date; however, Janet would frequently just stop by and drop stuff off. Greg was never with Janet when she came by the office. (Tr. 215 -218).
Judge Stephen Rice
Judge Rice testified by deposition that he is aware Respondent and Susan are sisters. He is also aware that Respondent has done work for Family Choices when both she and Susan were involved in the case. He never considered that anything was wrong with both of them having some role in an adoption placement. At the time of the hearing in the Warren case, it did not occur to Judge Rice that there was any kind of conflict, but he added "maybe it should have." (Resp. Ex. 15 at 14, 16, 31-32).
C. Analysis and Conclusions
We find that Respondent violated Rule 1.7(a)(1) by representing Janet and Gregory Warren in an adoption proceeding while she also represented Family Choices in other matters.
Rule 1.7(a)(1) prohibits an attorney from representing a client "if the representation involved a concurrent conflict of interest," and a concurrent conflict exists if "the representation of one client will be directly adverse to another client." An attorney has a fiduciary relationship with each person he or she represents, which requires "undivided fidelity" and "a duty to avoid conflicts of interest." In re Winship, 219 Ill. 2d 526, 543-44, 848 N.E.2d 961(2006); In re O'Donnell, 04 CH 115, M.R. 22181 (Mar. 17, 2008) (Hearing Bd. at 10). A conflict of interest exists whenever an attorney's independent judgment on behalf of a client may be affected by a
loyalty to another client, a third party, or by the attorney's own interests. In determining whether there is a conflict of interest, "we look not toward the congruence of interests, but toward the potential for diverging interests." Also, it is not necessary to prove that the attorney's professional judgment was actually compromised in order to establish a conflict of interest. See In re La Pinska, 72 Ill. 2d 461, 469-70, 381 N.E.2d 700 (1978); In re Rosin, 118 Ill. 2d 365, 381, 515 N.E.2d 85 (1987); In re Hildebrand, 04 SH 52, M.R. 20754 (Mar. 20, 2006) (Review Bd. at 10; Hearing Bd. at 17); In re Marshall, 2010PR00129, M.R. 26312 (Jan. 17, 2014) (Review Bd. at 6).
We find that Respondent was representing Family Choices at the same time she was representing the Warrens in the adoption case. The admitted facts established that "at all times described in this Complaint" Respondent "represented Family Choices in court on several occasions." Respondent prepared an exhibit that documented her representation of Family Choices in at least 10 legal matters. Respondent testified that she told the Warrens she worked for Family Choices. Further, a Family Choices document entitled Initial Contact Disclosure and Waiver, which was signed by the Warrens, expressly stated "Deborah Crouse Cobb is the Agency's [Family Choices'] attorney." Likewise the form Legal Contract used by Respondent in 2012 states that "Crouse, Cobb, and Bays represents Family Choices." It is also clear that the birth parents of the child at issue signed surrenders of parental rights to Family Choices in October 2012, and that Family Choices was the respondent in the Warren adoption case.
We next find that the interests of the Warrens and Family Choices were "directly adverse" at the outset of Respondent's representation of the Warrens. The sole interest or goal of the Warrens was to adopt the child at issue. On the other hand, the interest or goal of Family Services was to recommend an adoption that, in its opinion, was in the best interest of the child.
Thus, Family Choices was working toward and seeking a result that was best for the child. On the other hand, the Warrens were working toward and seeking a result that was best for the Warrens. The Respondent as the attorney for the Warrens, was required to have "undivided fidelity" to the Warrens while, at the same time, she had a fiduciary duty to Family Choices, who she was representing in other matters. Clearly, there was a violation of Rule 1.7(a)(1).
Additionally, as discussed in Section I, at the court hearing on November 22, 2013, Susan, on behalf of Family Choices, testified directly against the goal and interest and of the Warrens, and specifically recommended that the Warrens' petition to adopt the child be denied. Thus, the position of Family Choices was directly adverse to the position and sole goal of the Warrens. Consequently, Respondent represented one client, the Warrens, whose interest was directly adverse to the interest of Family Choices, another client of Respondent, in violation of Rule 1.7(a)(1).
Rule 1.7(b) permits an attorney to represent a client when a concurrent conflict of interest exists if four specific conditions are satisfied. One of the required conditions is that "each affected client gives informed consent." Comment  to Rule 1.7 states that informed consent "requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client." Rule 1.0(e) provides that informed consent "denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and the reasonably available alternatives to the proposed course of conduct." Comment  to Rule 1.0 states that informed consent "ordinarily . . . will require communication that requires a disclosure of the facts and circumstances giving rise to the
situation" and in "some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel."
In this case, neither Respondent nor Susan informed the Warrens that Susan and Family Choices were working to obtain the result that would be in the best interest of the child, and not the result necessarily wanted by the Warrens. In other words, the Warrens were not told that Susan and Family Choices were effectively working for the child and not for the Warrens. Without knowing or understanding the nature of the conflict, the Warrens were unable to give informed consent.
Furthermore, we find that the Warrens, rather than recognizing the existence of a conflict, believed that they were hiring a "team," consisting of Respondent, Susan, and Family Choices, to work on their behalf in the adoption case. (Tr. 40-41, 74). For example, Janet testified that, when she learned Respondent and Susan were sisters, she thought it was a "good thing" and would "work in our favor." (Tr. 76). The overall circumstances support the belief of the Warrens. The Respondent's law office and the Family Choices office were in the same building; Janet called both offices at the same telephone number, and, of particular importance, the Warrens never met with Respondent without Susan being present. (Tr. 39, 80-81, 89-90). Thus, every attorney-client communication between the Warrens and Respondent was heard by Susan. Thus, the Warrens understandably believed that Respondent and Susan were a team acting on behalf of the Warrens.
Even if we were to find the testimony of Respondent credible, we would find a lack of informed consent by the Warrens. According to Respondent she told the Warrens of a "potential conflict of interest" because of her relationships with Family Choices, but she did not testify that she explained the nature of the conflict or mention that it was a "conflict" rather than a "potential
conflict." Respondent went on to testify that she believed the Warrens "understood what [she] was talking about, and did "infer" that the Warrens were "fine with the conflict type issues." (Tr. 140-41; 186-87). Likewise Susan testified that she told the Warrens about a potential conflict. (Tr. 219). Based upon the testimony of Respondent and Susan, the Warrens were not provided with adequate information for them to give informed consent. They were not told there was a "conflict" but only a "potential" conflict, and they were not told what the conflicting interests were or how the conflict could affect Respondent's representation of them.
In In re Kessinger, 2011PR00025, M.R. 25702 (Jan. 18, 2013), a client made statements to the respondent, and the respondent later disclosed those statements to a prosecutor. The respondent testified that he implied his client consented to the disclosure of the statements. The Hearing Board stated:
[w]e reject the position that consent to the disclosure of a client's confidential statement may be implied. There is simply no reason for an attorney to rely on an implied consent when it is easy enough to specifically ask the client if he or she consents to disclosure. Also, to allow consent to be inferred would, we believe, lessen the strict requirements of the Rule [1.6(c)].
(Hearing Bd. at 23). We agree with the above and similarly conclude that consent by a client to waive a conflict of interest may not simply be inferred.
We also find the fact that the Warrens signed and initialed a Family Choices document entitled Initial Contact Disclosure and Waiver did not show they were given sufficient information for, and made, an informed consent to waive a conflict of interest. Susan testified that she gave the Warrens an application packet containing "twenty-five to thirty" documents. Respondent's Exhibit 5, containing 10 pages, was one of those documents. The packet of documents was taken by the Warrens, and they later initialed, signed and returned Respondent's Exhibit 5 to Susan. Both Janet and Greg testified that they did not read that document before they initialed and signed it. We first find that there was no adequate disclosure of information
necessary for an informed consent by the Warrens. The inclusion of information in a lengthy document or package of documents is simply not sufficient to establish that the person who signed the document was aware of or understood such information. We do not believe that such documents constitute a lawyer communicating adequate information and explanation to a client, as required for informed consent. We also note that the information in Respondent's Exhibit 5 came from Family Choices, not from Respondent.
In any event, the information contained in Respondent's Exhibit 5 is not sufficient to adequately apprise the Warrens of a conflict of interest or that they were waiving a conflict of interest. The terms "conflict of interest" and "waiver of conflict of interest" are not mentioned in that document. The document contains a section entitled ACKNOWLEDGEMENTS, which contains 23 paragraphs. One paragraph states "after a child is surrendered to the Agency [Family Choices] the Agency's first responsibility is to the child. The Agency has a duty to protect the child." However, there is no mention that the Agency's interest conflicts with interest of the adoptive parents or that the adoptive parents are executing some type of waiver in that regard. Also, that paragraph does not even refer to the attorney representing the adoptive parents. The document also states that the Warrens "wish to work with Family Choices and may choose to also work with Cruse, Cobb and Bays . . . with full disclosure of the familial relationship between the Agency employees, between the Agency employees and the attorneys, and between the partners in Cruse Cobb and Bays." Susan also testified that she discussed the relationships of Joyce, herself, Respondent, and Family Choices. However, the fact that the Warrens were informed of the relationship between Respondent and Susan/Family Choices, did not explain that there was a conflict of interest or the nature of such conflict. Also, the document did not refer to any waiver of a conflict. Further, as mentioned above, the Warrens believed they were hiring a
"team" to work on their behalf in the adoption case, and we find nothing in the Family Choices Initial Contact Disclosure and Waiver to be inconsistent with their belief.
The Supreme Court, in discussing conflict of interest, has stated the following:
An attorney must not, of course, decide unilaterally whether the circumstances justify his accepting employment despite a conflict of interest. He may not proceed to represent his client without her free, intelligent, and informed consent. He must make sure she knows and understands the conflict and the threat it poses to the attorney's objectivity, and any other considerations material to the client's decision whether to entrust her affairs to the attorney. He must also take suitable precautions to minimize the dangers and disadvantages to the client of his double role, including the risk that the attorney's advice about the initial decision to proceed despite the conflict may itself be biased. And for his own protection, he should be prepared to prove later what really happened.
In re Barrick, 87 Ill. 2d 233, 239, 429 N.E.2d 842 (1981). Thus, we find no evidence to show that Janet or Greg agreed to waive a conflict of interest on the part of Respondent with informed consent.
Based upon the above, we find the Administrator proved by clear and convincing evidence that Respondent engaged in a conflict of interest by representing a client when the representation will be directly adverse to another client., in violation of Rule 1.7(a)(1) of the Illinois Rules of Professional Conduct (2010).
III. Respondent is charged with engaging in a conflict of interest by representing a client where there is a significant risk that the representation will be materially limited by the lawyer's responsibility to another client, a former client or a third person or by a personal interest of the lawyer in violation of Rule 1.7(a) (2) of the Illinois Rules of Professional Conduct (2010).
A. Summary of Charge III
We find that the Administrator proved Respondent had a conflict of interest when her sister, Susan, testified at a court hearing on behalf of the adoption agency, Family Choices, and adverse to Respondents clients, the Warrens.
B. Admitted Facts and Evidence Considered
We considered the facts admitted in Respondent's Answer and the evidence set out in Sections I and II, above.
C. Analysis and Conclusions
We find that Respondent violated Rule 1.7(a)(2) by representing Janet and Greg, the petitioners in an adoption proceeding against Family Choices, because she also represented Family Choices; her mother was executive director of Family Choices; and her sister was the social worker for Family Choices who was involved in the adoption.
For the reason set out in our findings in Section II, above, we find there was a conflict of interest between Family Choices and the Respondent's clients Janet and Greg in the adoption proceeding. As we also found in Section II, the Warrens did not waive the conflict of interest.
Comment  to Rule 1.7 discusses the situation in which lawyers who are related represent opposing parties in a case. The Comment states "[t]hus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent." We believe the same principle applies in this case where Respondent's sister testified against Respondent's clients.
As discussed in Section I, above, at the court hearing on November 22, 2013, Respondent's sister, Susan, on behalf of Family Choices, testified adversely to Respondent's clients, the Warrens, and expressly recommended to the judge that the Warrens' adoption petition be dismissed. Clearly, Respondent had a close, personal relationship with her sister and, at the same time, had the fiduciary duty to zealously represent her clients with "undivided fidelity." Winship, 219 Ill. 2d at 543-44; O'Donnell, 04 CH 115 (Hearing Bd. at 10). In such a situation there is a significant risk, that an attorney's family relationship may interfere with the
attorney's independent judgment and loyalty necessary to effectively represent the client. In In re Hilebrand, 00 SH 74, M.R. 18802 (Sept. 19, 2003), for example, it was found that the respondent had a "per se conflict of interest" when he represented both a prosecution witness and the criminal defendant. (Hearing Bd. at 16-17; Review Bd. at 6). It is clear that an attorney's loyalty to a close relative, such as a sister, who testifies against the attorney's client, similarly creates a conflict of interest.
Thus, we find the Administrator proved by clear and convincing evidence that Respondent represented one or more clients where there is a significant risk that the representation will be materially limited by the lawyer's responsibility to another client or by a personal interest of the lawyer; in violation of Rule 1.7(a)(2) of the Illinois Rules of Professional Conduct (2010).
IV. Respondent is charged with failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (2010).
A. Summary of Charge IV
We find that the Administrator proved Respondent failed to sufficiently explain to the Warrens the nature of her conflict of interest and that she was unprepared for the court hearing in order for the Warrens to make informed decisions regarding the representation.
B. Admitted Facts and Evidence Considered
We considered the facts admitted in Respondent's Answer and the evidence set out in Sections I and II, above.
C. Analysis and Conclusions
We find that Respondent failed to explain a matter to the extent reasonably necessary to permit her clients, Janet and Greg Warren, to make informed decisions regarding the representation, in violation of Rule 1.4(b).
Rule 1.4(b) requires a lawyer to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Comment  to Rule 1.4 states that the "client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued." Comment  also states that the "guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests." Further, and particularly applicable to the case before us, Comment  states "[i]n certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent."
We found in Section II, above, that Respondent failed to provide to the Warrens the information necessary for them to give informed consent to waive the Respondent's conflict of interest. Thus, Respondent failed to explain the conflict of interest to the extent reasonably necessary to permit the Warrens to make an informed decision regarding the representation.
Additionally, as we found in Section I, Respondent failed to inform the Warrens prior to the court hearing on November 22, 2013, that she had not read the Psychological Reports prepared by Dr. Reid, even though Respondent knew those Reports were going to be discussed at the hearing. Respondent also failed to inform the Warrens that her sister, Susan, two days before the court hearing, had refused to speak with her about the case; that Respondent expected Susan to provide information or testimony adverse to the Warrens; and that Respondent was going to agree with some of Susan's testimony. The Warrens, in hiring both Respondent and Family
Choices/Susan Wolk, believed they were hiring a team to work on their behalf. Consequently, Respondent's lack of preparation and the adverse situation were important matters for the Warrens to be made aware of in order for them to make informed decisions about the representation and the means by which their objectives were to be pursued.
It is clear that Respondent acted contrary to the "guiding principle" for providing information consistent with the duty to act in the client's best interests. As we discussed in Section I, Respondent failed to provide any pertinent information or assistance to the Warrens in advance of the court hearing, but simply cut her clients loose and let them flounder without any guidance by counsel. Respondent, an experienced lawyer, should have known that she failed to provide the Warrens with any information necessary for them to make informed decisions.
Thus, we find the Administrator proved by clear and convincing evidence that Respondent failed to explain a matter to the extent reasonably necessary to permit the clients to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (2010).
V. Respondent is charged with failing to withdraw from the representation of a client where the representation will result in a violation of the Rules of Professional Conduct, in violation of Rule 1.16(a)(1) of the Illinois Rules of Professional Conduct (2010).
A. Summary of Charge V
We find that the Administrator proved Respondent failed to withdraw from representing the Warrens where her continued representation of them resulted in a violation of the Rules of Professional Conduct.
B. Admitted Facts and Evidence Considered
We considered the facts admitted in Respondent's Answer and the evidence set out in Sections I and II, above.
C. Analysis and Conclusions
We find that Respondent violated Rule 1.16(a)(1) by failing to withdraw from representing Janet and Greg when she became aware that Family Choices took an adverse position against the Warrens.
Rule 1.16(a)(1) provides that a "lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation if the representation will result in violation of the Rules of Professional Conduct. "
As we found in Sections I and III, above, Respondent became aware at the hearing on November 22, 2013, that Susan, on behalf of Family Choices, took a position directly adverse to Respondent's clients Janet and Gregory. Among other things, Susan specifically recommended to the judge that the Warrens' petition to adopt the child be denied. Respondent also knew or should have known that she had loyalties to both her sister and her clients, thus creating a clear conflict of interest. Consequently, Respondent had a conflict of interest by continuing to represent the Warrens at the court hearing on November 22, 2013, and was required to move to withdraw because her representation was in violation of Rules 1.7(a)(1) and 1.7(a)(2).
Thus, we find the Administrator proved by clear and convincing evidence that Respondent failed to withdraw from a representation that was in violation of the Illinois Rules of Professional Conduct, and thereby violated of Rule 1.16(a)(1) of the Illinois Rules of Professional Conduct (2010).
EVIDENCE IN AGGRAVATION AND MITIGATION
The Respondent was admitted to the practice of law in May 1984, and it was stipulated that she has not been previously disciplined. (Tr. 269).
Respondent testified that she is 63 years of age and has practiced law for more than 30 years. She handled her first adoption case in 1986 and within 10 years her entire practice consisted of adoption matters. She has handled about 150 to 200 adoption cases each year. (Tr. 124-26). She is still doing mostly adoption work and plans to continue her practice for at least a few more years. (Tr. 124-26, 142-43, 169).
Respondent testified that she does pro bono work for Land of Lincoln and for Catholic or Caritas legal system. After the Warren case she keeps "copious notes" and will not file a pleading until she has a signed contract that she has seen. She also said she is now evaluating cases in a significantly different manner. She is now more sensitive to conflicts of interest. (Tr. 169-70).
Respondent said she believes she effectively represented the Warrens at the hearing on November 22, 2013, "given the situation, given the eloquence with which Janet presented herself at that point in time, given Judge Rice and his inclinations." (Tr. 185). She also said she felt there was no conflict of interest because she did not represent Family Choices in the Warrens' case. (Tr. 187-88).
Judge Stephen Rice
Judge Rice testified by deposition that he has known Respondent through the adoption docket for about 10 years, and she has appeared before him many times. They have no social relationship. He said he has always found Respondent to be highly professional and very knowledgeable about aspects of adoption law. When attorneys have asked questions about adoptions, he has referred them to Respondent. He has never known her to be deceptive, untruthful, or do anything improper. (Resp. Ex. 15 at 10-13, 23).
Kathleen Morrison testified that she practiced law for about forty years in the Chicago area and is now retired. Most of her practice was in adoption law. She has known the Respondent for about 25 years and they have become friends. On numerous occasions they have talked about their adoption cases and exchanged information as colleagues. On occasions they were involved in the same adoption case, with Morrison representing an adoption agency and Respondent representing the adoptive parents. On a few occasions Morrison represented Family Choices and Respondent represented the adoptive parents. (Tr. 199-202).
Morrison said she has known Respondent to be honest, forthright and ethical. She also described Respondent as the "best adoption law lawyer . . . south of Chicago." Also, Respondent has spent a "lot of time" teaching others about adoption law. Morrison further said that it would be "a loss" if Respondent was unable to continue to practice adoption law. (Tr. 203-206).
Lyn Kuttin testified that she is a Regional Manager for the Illinois Division of Child Support Services and manages the child support system for the Metro East area. (Tr. 248). Kuttin first met Respondent when Kuttin was in the process of adopting her first son, Tyler. Respondent was appointed GAL in that case. Kuttin later hired Respondent to represent her when she adopted her second son, Nick. Kuttin described Respondent as honest and very concerned about the legality of procedures. Kuttin has referred others to the Respondent. (Tr. 248-53).
Judge Duane Bailey
Judge Duane Bailey testified that he was a judge in Madison County for 8 years, and is now retired. During his years on the bench he handled adoption cases, along with other matters.
(Tr. 254-55). Judge Bailey first met Respondent 10 years ago in connection with an adoption case. She then appeared before him on a regular basis. He said the quality of her work was excellent, and he never knew her to do anything dishonest, improper, or unethical. He said he is not aware of any attorney who has more knowledge about adoption law than Respondent. Further, Judge Bailey described Respondent as the "dean of adoption lawyers in Madison County." (Tr. 256-58).
Dan Way testified that he is an attorney and has practiced adoption law for about 16 years. He said that Respondent got him started in handling adoptions. He has worked with her in various adoption matters, but never as co-counsel. (Tr. 260). Way said that on many occasions, perhaps once or twice a month, he would ask Respondent questions about adoption law. He described her as "my go-to person." She was always available and assisted him. She never suggested anything to him that was improper or unethical. (Tr. 261-62). He further testified that he has never known Respondent to be dishonest and never had an occasion to question her integrity or credibility. He added that in his opinion her professionalism is of the "highest caliber." (Tr. 262).
Carrie Carpenter testified that she is a placement worker for the Illinois Department of Children and Family Services. She first met Respondent about 13 years. Carpenter has three adopted children. Respondent was the court appointed GAL in her first adoption, and was Carpenter's counsel in the other two adoptions. (Tr. 263, 266). Carpenter said she never has had any issues with Respondent. Carpenter also said she has never observed Respondent do anything dishonest, improper or unethical. (Tr. 265-66).
The Hearing Panel recommends that Respondent be suspended for a period of sixty (60) days
The purpose of the attorney disciplinary system is not to punish the attorney for misconduct, but to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Edmonds, 2014 IL 117696, par. 90; In re Cutright, 233 Ill. 2d 474, 491, 910 N.E.2d 581 (2009). In determining the appropriate sanction, we must consider the nature and seriousness of the misconduct, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000); Gorecki, 208 Ill. 2d at 361. Although each disciplinary case must be decided on its own unique facts, the Supreme Court strives for "consistency and predictability in the imposition of sanctions. Cutright, 233 Ill. 2d at 491; In re Mulroe, 2011 IL 111378, par. 25.
In this case, the Administrator requested the sanction of a suspension of at least 30 days. (Tr. 278-79). Respondent requested a sanction of reprimands or at most a censure. (Tr. 293-94).
We first consider that Respondent's misconduct was serious. Although her misconduct violated four Rules of Professional Conduct, "we do not count the number of ethical rules which [she] violated concurrently by the same conduct, and increase the severity of the sanction the higher that number is." In re Gerard, 132 Ill. 2d 507, 531, 548 N.E.2d 1051 (1989).
Nevertheless, the Respondent failed to provide competent representation to her clients in one adoption case and also represented those clients when she had a conflict of interest. The Supreme Court also stated in Gerard that "[u]nethical conduct, especially in attorneys' relationships with clients, must not and will not be taken lightly by the profession or by this court." Id. at 541.
In aggravation, Respondent failed to recognize a clear conflict of interest, especially when Respondent's sister began testifying adversely to Respondent's client. See Twohey, 191 Ill. 2d 75, at 89. Also in aggravation, and very troubling, is that Respondent's testimony indicates she still does not fully understand her conflict of interest in representing the Warrens or what is necessary for an informed waiver of a conflict. Additionally, Respondent demonstrated she does not recognize or understand that her representation of the Warrens at the hearing in November 2013 fell far short of competent representation expected of attorneys. Respondent was specifically asked if she believed she effectively represented the Warrens at that hearing. Respondent replied, "I believe given the situation, given the eloquence with which Janet presented herself at that point in time, given Judge Rice and his inclinations, yes, I do."
Further, Respondent's misconduct caused significant harm to the Warrens. Although the ultimate outcome of the adoption case may have resulted in the Warrens' petition being denied, Respondent's misconduct resulted in the Warrens being totally surprised, shocked, and devastated by the sudden, unexpected ruling ordering the immediate removal of the child from the Warrens. The Warrens hired Respondent and Family Choices believing they were hiring a team on their behalf. However, at the hearing on November 22, 2103, they suddenly found Family Choices turning against them and Respondent being unprepared and doing nothing meaningful on their behalf. It is understandable why the Warrens felt betrayed. In In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995), the Supreme Court pointed out that the respondent's
neglect and long delays in client cases caused "considerable and needless anxiety," along with the infliction of "anguish" on his clients. Similarly in the case before, Respondent's misconduct caused Janet and Gregory Warren to suffer anguish, along with considerable and needless anxiety."
There is also significant mitigation in this case. The Respondent was fully cooperative during her disciplinary proceeding. She has been practicing law for more than 30 years and has not been previously disciplined. Her misconduct in this matter occurred in one case, during an otherwise lengthy and unblemished career. Respondent testified that she does pro bono work. She also testified that she now recognizes the need for and keeps "copious notes," and will not file a pleading until she has seen a signed contract.
In addition, six impressive witnesses testified favorably as to Respondent's outstanding abilities as an adoption attorney and as to her honesty and integrity. The foregoing witnesses included a judge, a retired judge, two attorneys who practice adoption law, and two individuals who were represented by Respondent in adoption cases.
Finally, Family Choices is no longer in operation and, thus, Respondent will not have a conflict based upon her relationship with Family Choices in the future.
In In re Cahnman, 2014PR00102, M.R. 28259 (Nov. 21, 2016), it was stated that:
A typical sanction for engaging in a conflict of interest, in absence of other misconduct or significant aggravating factors, is censure or a short suspension. When there is additional misconduct, as here, the sanction is typically suspension of 60 day or more, depending on the level of misconduct.
Cahnman, 2014PR00102 (Review Bd. at 27). See also In re Murphy, 2012PR00146, M.R. 28013 (May 18, 2016) (Hearing Bd. at 74). In Cahnman, the respondent, a city alderman, was found to have a conflict of interest where one of his clients had filed a lawsuit against the city under the Freedom of Information Act and filed a federal civil rights lawsuit against the city. In
addition, it was found that he engaged in dishonesty by not disclosing his representation of that person to the mayor or city council. In aggravation, the respondent had been previously disciplined. A suspension for 90 days was imposed.
In Murphy, the respondent had a conflict of interest and used a client's credit card, without authority, to obtain payment of her fee. The Hearing Board stated that, "[i]t is Respondent's dishonesty in accessing her client's credit card and the attempted concealment of the unauthorized charge that warrants a harsher sanction in this case." A suspension for six months was imposed.
The case before us not only involves the misconduct of having a conflict of interest, but also the additional serious misconduct of incompetent representation. Thus, we believe a suspension of more than 30 days is warranted in this case. On the other hand, we do not believe a suspension of 90 days or more, as imposed in Cahnman and Murphy, is appropriate in this case.
In In re O'Donnell, 04 CH 115, M.R. 22181 (Mar. 17, 2008), the respondent engaged in a conflict of interest by representing both parties in a real estate sale. Additionally, he engaged in dishonesty by altering a document after it was signed and without the signor's knowledge. In aggravation, the misconduct caused harm. There was also significant mitigation, including no prior misconduct, favorable character witnesses, and that it was unlikely respondent would engage in further misconduct. However, a suspension was warranted because respondent engaged in other misconduct, dishonesty, in addition to the conflict. (Review Bd. at 18-19). A suspension for 60 days was imposed.
In In re Walin, 2015PR00038, M.R. 28072 (May 18, 2016), the respondent engaged in a conflict of interest by drafting a trust agreement for a client in which respondent was named beneficiary. However, the client later removed respondent as beneficiary. In mitigation,
respondent had practiced law for about 25 years with no prior discipline, she expressed remorse, and she accepted responsibility for her misconduct. In aggravation, the inclusion of herself in the trust could have resulted in substantial financial gain to respondent. Also, given respondent's experience in trusts and estates she should have known her conduct violated the ethical rules. The Court allowed the Petition to Impose Discipline on Consent and imposed a suspension for 60 days.
After considering the seriousness of the Respondent's misconduct, the aggravating factors, and the mitigating factors, we believe that a suspension of 60 days is the appropriate sanction in this case, and will sufficiently protect the public and the administration of justice, and preserve public confidence in the legal profession.
Therefore, we recommend that the Respondent, Deborah Crouse Cobb, be suspended from the practice of law for sixty (60) days.
John L. Gilbert
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 January 9, 2018.
Kenneth G. Jablonski, Clerk of the