Filed January 21, 2009
In re Cornelius Thomas Ducey, Jr.
Commission No. 03 SH 123
Synopsis of Review Board Report and Recommendation
The Administrator filed an eight-count amended complaint against Ducey, which charged him with numerous ethical violations including failing to withdraw from employment or request permission of the tribunal to withdraw from employment when the lawyer is discharged by the client; failing to take reasonable steps to avoid foreseeable prejudice to the rights of the client; engaging in dishonest conduct; making a false statement of material fact to a tribunal which he knew or reasonably should have known was false; failing to respond to the Administrator's lawful demand for information; neglecting a client's medical malpractice claim; attempting to limit his client's right to file a complaint with the ARDC and refusing to deliver the client's file to her; making false statements to the ARDC and the supreme court and refusing to provide documents requested by the Administrator. Ducey denied all allegations of misconduct.
The Hearing Board dismissed Count I of the amended complaint prior to the hearing. The Hearing Board found that the Administrator proved the remaining charges except for the charges that Ducey made a false statement of material fact to the circuit court and attempted to limit his client's right to file a complaint with the ARDC. The Hearing Board recommended that Ducey's license be suspended for eighteen months.
The Administrator argued on review that he proved that Ducey made a false statement of material fact to the circuit court and that Ducey should be suspended for two years and until further order of the court.
Ducey filed a cross-appeal in which he argued that the Hearing Board erred when it denied his motion to continue the hearing, denied his motion for sanctions, and struck a portion of his answer for refusing to respond to certain discovery requests. Ducey further contended that all of the Hearing Board's findings against him were against the manifest weight of the evidence.
The Review Board reversed the Hearing Board's finding that the Administrator did not prove that Ducey made a false statement of material fact to the circuit court and affirmed the remaining findings of fact and misconduct. It rejected all of Ducey's arguments. The Review Board recommended that Ducey be suspended for two years and until further order of the court.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
CORNELIUS THOMAS DUCEY, JR.,
Commission No. 03 SH 123
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant/Cross-Appellee filed an eight-count amended complaint against Respondent-Appellee/Cross-Appellant, Cornelius Thomas Ducey, Jr. Count I of the amended complaint was dismissed prior to the hearing on Ducey's motion. Counts II and III charged Ducey with misconduct arising from his representation of two clients in lawsuits involving the misappropriation of structured settlement funds. Specifically, those counts alleged that Ducey failed to withdraw from employment or request permission of the tribunal to withdraw from employment when the lawyer is discharged by the client, in violation of Rule of Professional Conduct 1.16(a)(4)1; failed to take reasonable steps to avoid foreseeable prejudice to the rights of the client, in violation of Rule 1.16(d); and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4).
Count IV alleged that Ducey made a false statement of material fact to a tribunal which he knew or reasonably should have known was false, in violation of Rule 3.3(a)(1); and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4).
Count V charged Ducey with failing to respond to the Administrator's lawful demand for information, in violation of Rule 8.1(a)(2).
Count VI charged Ducey with neglecting the medical malpractice claim of his client, Donna Edwards. The Administrator alleged that Ducey failed to act with reasonable diligence and promptness in representing Edwards, in violation of Rule 1.3; failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a); failed 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); and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4).
In Count VII, the Administrator charged Ducey with attempting to limit Edwards' right to file a complaint with the ARDC by refusing to give her her file unless she withdrew her complaint against him, and for failing to deliver Edwards' file to her. Ducey was charged with attempting to enter into an agreement with a client or former client limiting or purporting to limit the client's right to file or pursue any complaint before the ARDC, in violation of Rules 1.8(h) and 8.4(a)(1); and refusing to deliver to the client all papers and property to which the client is entitled, in violation of Rule 1.16(d).
The Administrator alleged in Count VIII that Ducey made false statements to the Hearing Board and the Supreme Court and failed to provide documents requested by the Administrator. He charged Ducey with making a statement of material fact or law to a tribunal which he knew or reasonably should have known was false, in violation of Rule 3.3(a)(1); making a statement of material fact that he knew to be false, in connection with a lawyer disciplinary matter, in violation of Rule 8.1(a)(1); failing to respond to a lawful demand for information from a disciplinary authority, in violation of Rule 8.1(a)(2); and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4).
In addition, all of the counts included allegations that Ducey engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 771 (now Supreme Court Rule 770).
Ducey admitted some of the factual allegations, denied others, and denied all allegations of misconduct.
The Hearing Board found that the Administrator proved the charges against Ducey, except for the charges in Count IV and the charge in Count VI that Ducey attempted to limit his client's right to pursue a disciplinary action against him. The Hearing Board recommended that Ducey's license be suspended for eighteen months.
Before this Board, the Administrator argues that he proved the charges in Count IV by clear and convincing evidence. The Administrator further argues that Ducey should be suspended for two years and until further order of the court.
Ducey filed a cross-appeal in which he contends that the Hearing Board abused its discretion by (1) denying his motion to continue the trial; (2) denying his motion for sanctions against the Administrator; and (3) striking a portion of his Answer for refusing to respond to certain discovery requests. Ducey further asserts that all of the Hearing Board's findings against him are contrary to the manifest weight of the evidence. He argues that a fixed suspension of twelve months is appropriate.
Ducey has been licensed to practice law in Illinois since 1971. He has his own firm in Belleville.
The misconduct alleged in Counts II and III arose from Ducey's involvement in litigation against James Gibson and others, alleging that Gibson absconded with structured settlement funds that his company, SBU, held on behalf of and administered to medical malpractice plaintiffs. Ducey filed suit against Gibson on behalf of numerous plaintiffs. He filed one suit in Cook County in October 1998, Topsakalyan et al. v. Gibson et al.
In October 2000, Gerard Nester, the public administrator for the City of St. Louis and the conservator of the estate of Tammy Porter, hired Ducey to represent Porter after her structured settlement payments stopped in May 2000. Porter had suffered brain damage and cerebral palsy as an infant. In November 2000, Ducey added Nester, as Tammy's conservator, as a plaintiff in the Topsakalyan litigation.
Nester later learned that Ducey had previously represented Gibson. He did not think it was appropriate for Ducey to represent Tammy against his former client, so he discharged Ducey on January 10, 2002. Nester did not receive any response from Ducey, but did receive the certified mail confirmation that Ducey's office had received his letter.
Tammy's mother, Brenda Vaughn testified that she may have had a conversation with Ducey after Nester discharged him in which Ducey indicated that he would like to continue representing Tammy's estate after she turned 18 and her conservatorship ended. Vaughn said that may have told Ducey that was fine, but she never actually hired Ducey to represent Tammy and had no written representation agreement with him.
In April 2002, Ducey filed an amended complaint in Topsakalyan which included Nester, as Tammy's conservator, as a plaintiff. In June 2002, Ducey filed another lawsuit pertaining to the structured settlement funds in Madison County (Topsakalyan v. Thompson
Coburn et al.). Again he included Nester as one of the plaintiffs. Ducey never advised Nester that he was a named plaintiff in the amended Cook County complaint or in the Madison County complaint.
In July 2002, Vaughn hired attorney John Allan to represent Tammy's interests. Allan advised Nester that he was a named plaintiff in the Madison County complaint.
Ducey testified that Vaughn hired him after Nester discharged him, and that he represented Vaughn until she hired Allan. He further testified that he did not file a motion to withdraw in either of Tammy's cases because he wanted to make sure that her interests were protected and was waiting for Allan to file an appearance. However, he also testified that his inclusion of Nester in the Madison County complaint was a clerical error.
The Hearing Board found that Ducey's explanations of his conduct were unbelievable. It further found that Vaughn did not hire him to represent her or Tammy, and that Ducey's failure to inform Nester that he had filed pleadings on his behalf was dishonest and deceitful.
In January 2000, Francis Cullen hired Ducey to represent the interests of his daughter, Melanie Cullen, in the structured settlement litigation. Melanie was named as a plaintiff in the Cook County Topsakalyan lawsuit. Francis discharged Ducey on March 5, 2002, and retained attorney Michael S. Williams the following day. Williams sent Ducey a letter on March 12, 2002, asking Ducey to send the Cullen file to him. Ducey never responded to the letter, delivered the file or withdrew as the Cullens' attorney.
In April 2002, Ducey included Francis and Melanie Cullen as plaintiffs in the amended Topsakalyan complaint filed in Cook County. Also, on June 7, 2002, he listed the
Cullens as plaintiffs in the complaint he filed in Madison County. Ducey never sent copies of the complaints to the Cullens, and never had authority to include them as plaintiffs.
The Cullens' new attorney, Williams, added Melanie Cullen as a plaintiff to a lawsuit that he had previously filed in St. Clair County.
Ducey testified that the Cullens were mistakenly included as plaintiffs in the Madison County case.
As with Count II, the Hearing Board found that the Administrator proved that Ducey failed to withdraw after the Cullens discharged him, failed to take reasonable steps to avoid prejudice to their rights, and acted dishonestly by failing to disclose that he had filed pleadings on their behalf. The Hearing Board found that Ducey's inclusion of the Cullens as plaintiffs was not mere clerical error, but reckless indifference to his client's wishes.
Ducey appeared before the Circuit Court of Madison County on August 2, 2002, on his motion to certify the Topsakalyan case as a class action. More than once the court asked Ducey if he had representation contracts with all of the named plaintiffs. Ducey responded that he did, even though he did not have contracts with Nester, Porter, or the Cullens, all of whom were named plaintiffs.
The Hearing Board found that Ducey's statements to the court were false, but that there was insufficient proof that he intended to deceive the court. The Hearing Board further found that Ducey made an inadvertent misstatement that had no effect on the outcome of the proceedings because the court denied his motion. Consequently, the Hearing Board found that the Administrator did not prove the charges in Count IV.
After the Administrator received complaints about Ducey's conduct in the Porter and Cullen matters, he sent Ducey three letters asking him to provide information about those matters. Ducey did not provide the requested information. He testified that initially he did not have the information that he needed in order to respond to the letters. By the time he obtained the information, he believed that the investigation was over because the matter had been sent to the Inquiry Board.
The Hearing Board found that Ducey's reasons for failing to provide the requested information lacked merit and that the Administrator proved the charges in Count V.
Donna Edwards hired Ducey in May 2000 to represent her in a medical malpractice matter. Ducey filed a complaint on Edwards' behalf on November 19, 2001, but did not attach a certificate of merit and expert's report as required by Section 5/2-622 of the Code of Civil Procedure (735 ILCS 5/2-622(a)(1). Instead, he attached an affidavit to the complaint stating that he was unable to obtain a consultation prior to the expiration of the statute of limitations (735 ILCS 5/2-622(a)(2)). Ducey was then required to file the certificate of merit and expert's report within 90 days after he filed the complaint (735 ILCS 5/2-622(g)). He did not do so.
After the defendants moved to dismiss the complaint for lack of a certificate of merit and expert's report, Ducey moved to voluntarily dismiss the complaint. The court granted the motion on May 17, 2002. Ducey did not inform Edwards that the complaint had been voluntarily dismissed or that he had not obtained the necessary certificate of merit or report by a medical expert.
Edwards called Ducey's office to ask about the status of her case at least ten times between June 2002 and April 2003 but never received any response from Ducey. She tried to set up an appointment with him but was told that he was too busy or was not available.
Ducey admitted that he did not discuss Edwards' case with her, but claimed that he had no record of any phone calls from her.
The Hearing Board found that Edwards was credible and Ducey was not. In addition, the Hearing Board deemed admitted the allegations that Ducey did not at any time have a physician review Edwards' medical records or consult with a physician regarding the merit of her cause of action. The Hearing Board found that the Administrator proved all of the charges in Count VI.
Edwards sent Ducey a letter on August 29, 2003, asking about the status of her case. Ducey did not respond. Edwards sent Ducey another letter on September 10, 2003, requesting a copy of her file and also sent the Administrator a letter about Ducey's conduct.
Edwards testified that when she went to Ducey's office to pick up her file, Ducey's secretary asked her to withdraw her complaint to the ARDC. Ducey's wife, Barbara, testified that she talked to Edwards when she came to the office but denied asking her to withdraw her complaint.
After Barbara Ducey refused to give Edwards her file, attorney Thomas Keefe, Jr. sent Ducey a letter requesting the file. Ducey has never provided Edwards or Keefe with the file.
Edwards had filed for bankruptcy on August 16, 2002, and her petition listed her medical malpractice action as a contingent asset of the bankruptcy estate. Ducey claimed that Edwards was no longer his client after she filed for bankruptcy, and, consequently, he no longer
had a duty to deliver her file to her. Ducey further testified that he believed that he represented the bankruptcy trustee after Edwards filed her bankruptcy petition. In his view, he could not deliver Edwards' file to her because it would violate the attorney-client privilege between Ducey and his purported client, the bankruptcy trustee.
Steven Mottaz, the trustee for Edwards' bankruptcy estate, and the successor trustee, Laura Grandy, testified that Ducey was never the attorney for the bankruptcy trustee, nor did they ever instruct Ducey to withhold Edwards' file from her.
Despite Ducey's claim that Edwards was not his client after she filed for bankruptcy, Ducey refiled her medical malpractice claim on May 2, 2003. He did not inform Edwards or the bankruptcy trustee of his actions. Ducey moved to withdraw as Edward's counsel on September 26, 2003. The court granted his motion to withdraw on October 27, 2003.
The Hearing Board found that Ducey had an attorney-client relationship with Edwards until his motion to withdraw was granted on October 27, 2003. The Hearing Board further found that Ducey did not represent the bankruptcy estate and had no reasonable basis for refusing to deliver Edwards' file to her.
The Hearing Board found that the evidence was not sufficient to prove that Respondent sought to limit Edwards' right to pursue a disciplinary action against him, but that the Administrator did prove that Ducey failed to deliver to Edwards all papers and property to which she was entitled.
In response to the Administrator's request that Ducey provide his complete file for the Edwards matter, Ducey claimed that he represented Edwards' bankruptcy trustee and refused to produce the file on the grounds that doing so would violate attorney-client privilege
and attorney work product privilege. Ducey made the same claims in a motion to quash subpoena that he filed with the Hearing Board, and in a motion to quash subpoena that he filed in the Supreme Court.
The Hearing Board found that the Administrator proved the charges in Count VIII because the evidence showed that Ducey had no valid basis for his statements.
EVIDENCE IN MITIGATION
Ducey presented testimony from Matthew Marlen, an attorney who worked for him from 1992 until 1994, that he was not aware of any occasion when Ducey made a misrepresentation to him, a client, or the court. He also presented testimony from several former clients and members of the community that he has a good reputation for honesty.
Two attorneys who testified as witnesses for the Administrator testified that, within the legal community, Ducey's reputation for truth and veracity is "extremely poor" and "extremely negative."
We begin by addressing Ducey's objections to certain rulings by the Hearing Board. First, he contends that the Hearing Board abused its discretion by denying his motion to continue the hearing. We will not reverse the Hearing Board's ruling on a motion for a continuance unless the Hearing Board abused its discretion. In re Paden, No. 04 CH 116 (Review Board, Oct. 5, 2007) at 8, petition for leave to file exceptions denied, No. M.R. 22089 (May 19, 2008).
On December 8, 2004, Ducey filed a motion to continue the hearing date of December 14, 2004. He argued that the hearing should not proceed because of two motions pending in the supreme court concerning earlier rulings of the Hearing Board. One of the
motions sought a supervisory order after the Hearing Board struck Ducey's answer to two paragraphs of the complaint. The other motion was for a rule to show cause against several attorneys for failing to bring documents to their depositions. The Hearing Board denied Ducey's motion for sanctions that was based in part on the failure to produce the requested documents. The Hearing Board ruled that it would consider Ducey's objections to the witnesses' testimony at the hearing. The supreme court denied both of the motions after Hearing Board denied the motion for continuance.
The Administrator correctly notes that there is no authority for Ducey's attempt to obtain interlocutory review of the Hearing Board's rulings on evidentiary matters. Because Ducey's motions before the supreme court lacked a legitimate legal basis, the Hearing Board was not required to delay the hearing pending the court's rulings on the motions. Consequently, the Hearing Board did not abuse its discretion when it denied the motion to continue the hearing.
Ducey also challenges the Hearing Board's denial of his motion to bar the testimony of attorney Michael Williams as a sanction for Williams' refusal to produce certain documents at his deposition. Williams represented the Cullens after they discharged Ducey. Ducey sought documents pertaining to any contacts between the ARDC and Williams or his firm regarding Ducey. We will not disturb the Hearing Board's rulings regarding admission of evidence absent an abuse of discretion. In re Petrulis, No. 96 CH 546 (Review Board, Dec. 9, 1999) at 14, approved and confirmed, No.M.R. 16556 (June 30, 2000).
Ducey argues that Williams' refusal to produce the requested documents and the Hearing Board's subsequent ruling allowing Williams to testify prevented him from exercising his right to cross-examine Williams and deprived him of due process of law.
It appears that the documents Ducey sought from Williams were any documents pertaining to the lawsuit that Williams filed on behalf of the Cullens in St. Clair County and any communications between Williams or his firm and the ARDC pertaining to Ducey. The Administrator points out that the entire court file for the Cullen matter was admitted as evidence. Ducey argues that the documents he sought went to the allegations contained in two paragraphs of the complaint that refer to the filing of pleadings in the St. Clair County Case, but he fails to specify, much less demonstrate, any prejudice to him.
With respect to the communications between Williams and the ARDC, Ducey argues that they were relevant to show Williams' bias against him. The record demonstrates that Ducey cross-examined Williams extensively about his alleged bias. Williams acknowledged that he and his firm were defendants in cases that Ducey had filed against them. Thus, Ducey had ample opportunity to explore Williams' alleged bias against him and has not demonstrated any prejudice that resulted from Williams' failure to produce the requested letters. Moreover, Supreme Court Rule 766(a) provides that investigations by the Administrator as well as certain other ARDC proceedings are confidential and may not be disclosed without court authorization. Supreme Court Rule 766(a),(b). Ducey did not seek authorization for the release of these documents, so he has failed to demonstrate that he was entitled to them. For all of the foregoing reasons, the Hearing Board did not abuse its discretion when it made its rulings with respect to Williams.
Ducey further argues that the Hearing Board erred when it struck his answers to two paragraphs of the complaint as a sanction for his failure to comply with discovery. Paragraph 4 of Count VI of the complaint alleged that Ducey did not consult with a physician or obtain a physician's report about Donna Edwards' medical malpractice claim. Paragraph 8 of
Count IV alleged that Ducey took little or no action to obtain a physician's review and report in the 90 days after he filed Edwards' complaint. During discovery, Ducey refused to disclose what steps he had taken to obtain a physician's review, claiming work product privilege. The Hearing Board determined that the assertion of a work product privilege was not an appropriate form of pleading under Commission Rule 233 and, after Ducey's continued refusal to disclose the information, struck his answers to Paragraphs 4 and 8 of Count IV as a sanction. The Hearing Board allowed Ducey to testify regarding his efforts to obtain a physician's report for mitigation purposes only. Before this Board, Ducey maintains that his assertion of the work product privilege was proper.
Supreme Court Rule 219(c) and Commission Rule 260(e) provide that the Hearing Board may sanction a party's unreasonable refusal to comply with requests for discovery or with orders entered by the Hearing Board. See In re Spiezer, No. 00 SH 49 (Review Board, March 28, 2002) at 5, petition for leave to file exceptions allowed, No. M.R. 18161 (Sept. 19, 2002). We review the Hearing Board's sanction decisions for abuse of discretion. Speizer, No. 00 SH 49 at 5. We find none here.
The purpose of the work product privilege is "to protect the right of an attorney to thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue advantage of the former's efforts." Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill.2d 178, 196, 579 N.E.2d 322 (1991). The privilege is not intended to protect an attorney who has been charged with misconduct. The ARDC was not Ducey's adversary in the medical malpractice litigation. Hence, the doctrine does not apply. See Waste Management, 144 Ill.2d at 198, 579 N.E.2d 322. Moreover, the court has recognized the "at issue" exception to the work product doctrine which allows discovery of the attorney's work
product "where the sought-after material is either the basis of the lawsuit or the defense thereof." Waste Management, 144 Ill.2d at 199-200, 579 N.E.2d 322. The actions Ducey took with respect to Edwards' case are clearly part of the basis of this proceeding. Accordingly, the Hearing Board correctly determined that the work product privilege did not apply and did not abuse its discretion by deeming admitted Paragraphs 4 and 8 of Count IV.
Next we turn to the Hearing Board's findings of fact and misconduct. Ducey argues that all of the Hearing Board's findings against him are against the manifest weight of the evidence. The Administrator argues that the Hearing Board's finding of no misconduct as to Count IV is clearly erroneous.
The Administrator bears the burden of proving the charges of misconduct by clear and convincing evidence. In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560 (2004). We defer to the Hearing Board's factual findings and will not disturb them unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill.2d at 542, 848 N.E.2d 961. Our review of the Hearing Board's legal conclusions, including whether the facts found constitute the charged misconduct, is de novo. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E.2d 906 (1994).
Ducey sets forth numerous challenges to the Hearing Board's findings on Count II, none of which have merit. First, he asserts that the conservator for Tammy Porter's estate, Gerard Nester, did not have the authority to terminate Ducey's representation of Porter without an order from the probate court. Ducey relies on the Missouri Probate Code, section 475.130.1, which describes a conservator's duties in very general language2. Mo. Rev. Stat. sec. 475.130.1
(2005). From this general language, Ducey extrapolates a specific duty to obtain authorization from the court to discharge an attorney. We find no support for Ducey's position in the plain language of the statute.
Moreover, Ducey's position is contradicted by the testimony of Nester, who was the public administrator for the City of St. Louis. Nester testified that court approval was not required before discharging an attorney because it did not require an expenditure of estate funds, unlike hiring an attorney. The Hearing Board found Nester to be a credible witness. Hence, the Hearing Board's finding that Nester effectively discharged Ducey as Porter's attorney was not erroneous.
Ducey next argues that the Hearing Board's findings exceeded the misconduct alleged in the complaint against him. We disagree.
In finding that Ducey committed the misconduct charged in Count II, the Hearing Board noted that, among other things, he failed to inform Nester about the amended complaint filed in Cook County and the complaint filed in Madison County on behalf of Porter's estate; failed to communicate with Nester regarding why he was not complying with Nester's instruction to withdraw; and failed to communicate with Porter's new attorney, John Allan. This was not uncharged conduct, but rather evidence rebutting Ducey's contention that he was acting in Nester's and Porter's interests. There is no indication in the Hearing Board's Report and Recommendation that the Hearing Board disciplined Ducey for uncharged misconduct.
Ducey further argues that, by continuing his representation of Porter's estate after he was discharged, he was complying with Supreme Court Rule 1.16(d). Rule 1.16(d) provides that "a lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client,
allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules."
Contrary to Ducey's interpretation, Rule 1.16 does not allow a discharged attorney to continue representing a client indefinitely based on the attorney's belief that doing so is in the client's best interests. Rather, as the Hearing Board noted, Rule 1.16(d) and Supreme Court Rule 13 set forth specific procedures for an attorney to follow when withdrawing to avoid foreseeable prejudice to the client. Ducey followed none of those procedures. Consequently, his reliance on Rule 1.16(d) as justification for his failure to withdraw is misplaced.
Ducey also takes issue with the Hearing Board's finding that his failure to inform Nester and Vaughn of the actions he took on behalf of the estate after he had been discharged constituted dishonest conduct. He seeks to distinguish the cases cited by the Hearing Board because they did not involve instances in which an attorney continued to act on behalf of a client after being discharged.
The Hearing Board cited In re Gerard, 132 Ill.2d 495, 548 N.E.2d 1051 (1989), and In re Ring, 141 Ill.2d 128, 565 N.E.2d 983 (1990), for the proposition that a failure to explain a matter to a client or to keep a client informed may constitute fraudulent conduct by omission. Ducey suggests that because he did not withhold any information that Nester or Vaughn specifically requested, he did not act dishonestly. He is incorrect.
The court noted in Ring explained the importance of keeping a client reasonably informed:
"When a client places his or her trust in an attorney to pursue a legal matter on the client's behalf, it is essential that the attorney keep the client reasonably informed about the progress and status of the matter. In this way, the client can make an intelligent decision to proceed further with the matter, to terminate pursuit of
the matter, or to exercise some other option such as seeking the advice of other counsel."
Ring, 141 Ill.2d at 140, 565 N.E.2d 983. Hence an attorney has an obligation not only to respond truthfully to a client's inquiries, but to disclose information about the status of the case. It should go without saying that a client would want to know that a lawsuit has been filed on the client's behalf. The court found that Ring's failure to disclose to his client that he was not going to file an appellate brief and that the client's appeal was dismissed constituted conduct involving dishonesty, deceit and misrepresentation. Ring, 141 Ill.2d at 143, 565 N.E.2d 983. There is ample evidence to support the Hearing Board's finding here that Ducey acted dishonestly by failing to inform Nester and Vaughn and that he had filed lawsuits on behalf of Porter's estate after he had been discharged.
As with Count II, Ducey argues without any citation to authority that he was acting in accordance with Supreme Court Rule 1.16(d) and the interests of his client when he failed to withdraw as the Cullens' attorney after Francis Cullen discharged him. For the reasons set forth in our discussion of Count II, Ducey's reliance on Rule 1.16(d) as justification for his failure to withdraw is misplaced.
We further conclude that there is no reason to disturb the Hearing Board's factual findings regarding Ducey's explanations of his conduct. The Hearing Board found, based on all of the evidence including Ducey's testimony, that Ducey was not credible. The Hearing Board's credibility assessments are entitled to great deference upon review due to the Hearing Board's unique opportunity to observe the witnesses' demeanor and judge their credibility. In re Blank, 145 Ill. 2d, 534, 547, 585 N.E.2d 105 (1991). Ducey maintains that much of his testimony was uncontradicted. While this may be accurate, the Hearing Board is not required to accept
testimony that is inherently improbable, merely because it is not contradicted. See In re Bartley, No. 96 SH 879 (Review Board, June 30, 1998) at 16, approved and confirmed, No. M.R. 15176 (Sept. 28, 1998). The Hearing Board did not find Ducey credible. Ducey has presented us with no reason to reject the Hearing Board's findings.
Next we address the Administrator's argument that he clearly and convincingly proved that Ducey made false statements to Judge Matoesian. When appearing in the Circuit Court of Madison County on a motion to certify Topsakalyan as a class action, the court asked Ducey whether he represented all of the named plaintiffs. Ducey responded that he did, even though he had been discharged by Nester and the Cullens.
Rule 3.3(a)(1) prohibits a lawyer from making a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false. The Hearing Board found that Ducey's statements were false, but that he did not make them with an intent to deceive. Consequently, it found no violation of Rule 3.3(a)(1). The Administrator contends that Ducey's statements were material, and he should have known that they were false. Ducey asserts that his misstatements were inadvertent and immaterial.
Intent to deceive is a consideration when determining whether a respondent has engaged in fraudulent conduct, but it is not an element of Rule 3.3(a)(1).
Recently, in In re Ekechukwu, No. 05 CH 70 (Review Board, May 14, 2008), petition for leave to file exceptions allowed, No. M.R. 22504 (Sept. 17, 2008), the respondent was found to have violated Rule 3.3(a)(1) for holding herself out as the attorney for the wife of a client although the wife had not authorized the respondent to represent her. Ekechukwu also agreed on the wife's behalf to the entry of a judgment against her. Ekechukwu had relied on the
representations of her client, the husband, that his wife wanted Ekechukwu to represent her, when in fact the wife was estranged from her husband and had no knowledge of the lawsuit in which Ekechukwu appeared on her behalf.
Although Ekechukwu relied on the husband's representations regarding his wife, the Review Board affirmed the Hearing Board's finding that Ekechukwu's representations to the court that she had the authority to represent the wife violated Rule 3.3(a)(1). Ekechukwu, No. 05 CH 70, Review Board Report and Recommendation at 7-8. The Review Board noted that Ekechukwu reasonably should have known that the wife had not authorized Ekechukwu to represent her, and that Ekechukwu could have learned the truth with a phone call. There was no finding by the Hearing Board that Ekechukwu made any statements with the intent to deceive the court. Based on Ekechukwu and the plain language of Rule 3.3(a)(1), we conclude that the Administrator need not prove intent to deceive to establish a violation of Rule 3.3(a)(1).
Ducey also argues that his statements to the court were not material. We disagree. As the Administrator notes, the supreme court has not defined materiality for the purposes of Rule 3.3. The Restatement (Second) of Torts sec. 538 provides that "a fact is material if its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction in question." See McPherson v. Hewitt, 32 Ill.App.3d 435, 433, 335 N.E.2d 606 (2d Dist. 1975). Applying this definition, the evidence demonstrates that the question of Ducey's representation of the named plaintiffs was material to Judge Matoesian. He asked Ducey multiple times whether he had contracts with the all of the plaintiffs. Clearly, Ducey's response to this question was important to Judge Matoesian in considering Ducey's motion to certify a class. There is no other reasonable explanation why Judge Matoesian would repeatedly ask the same question. It is not relevant whether Ducey's
false statements helped or hurt him with respect to his motion. The pertinent question is whether the statements were important to the issue before the court at the time Ducey made them. The only conclusion to be drawn from the evidence is that they were important, and therefore material.
While we defer to the Hearing Board's factual findings, we conclude that the Hearing Board applied an improper standard when it required the Administrator to prove that Ducey made his statements with an intent to deceive the court. Further, the Hearing Board did not specify whether it found Ducey's statements to be material. To the extent that the Hearing Board Report and Recommendation can be read to imply a finding of immateriality, we must conclude that such a finding is contrary to the manifest weight of the evidence.
We determine that the Administrator clearly and convincingly established all of the elements of Rule 3.3(a)(1). The evidence showed that Ducey's statements were false, material to the motion before the court, and that he knew or reasonably should have known that they were false. The evidence also established conduct that tends to defeat the administration of justice or to bring the legal profession into disrepute, in violation of Supreme Court Rule 770. An attorney's knowing or reckless failure to present information accurately does not inspire trust in the legal profession. Consequently, we reverse the Hearing Board's findings of no misconduct as to Count IV.
The Hearing Board found that Ducey failed to respond to the Administrator's requests for information regarding his representation of Nester, Porter, and the Cullens. On review, Ducey reiterates his explanations that he presented at the hearing below. The Hearing Board rejected these explanations, finding that they were unreasonable and lacking in merit. The
Hearing Board made its findings based on its consideration of all of the evidence and its assessment of Ducey's credibility, and we defer to them. See Winthrop, 219 Ill.2d 526 at 542, 848 N.E.2d 961. Ducey has not presented any persuasive reason to disturb the Hearing Board's findings.
COUNTS VI AND VII
The Hearing Board found that Ducey neglected Edwards' medical negligence case and failed to deliver Edwards' file to her. Ducey contends that he had no attorney-client relationship with Edwards after she filed for bankruptcy, so Edwards was not entitled to her file or to information about the case. Ducey testified that he believed that the bankruptcy trustee became his client once Edwards filed for bankruptcy. The Hearing Board found that Ducey's attorney-client relationship with Edwards continued after her medical negligence lawsuit had become an asset of the bankruptcy estate, and that Ducey never represented the bankruptcy trustee. The evidence amply supports the Hearing Board's findings.
Ducey had voluntarily dismissed Edwards' medical malpractice lawsuit on May 17, 2002, without advising Edwards of the dismissal. Edwards filed for bankruptcy on August 16, 2002, at which time her medical malpractice lawsuit became an asset of her bankruptcy estate. Ducey refiled Edwards' lawsuit on May 2, 2003, again without advising Edwards. He signed the complaint, which stated that the action was brought by Edwards, "by and through her attorney, Thomas Ducey." On September 26, 2003, Ducey filed a motion to withdraw as Edwards' attorney. The court granted the motion on October 27, 2003.
The trustee of Edwards' bankruptcy estate, Steven Mottaz, and the successor trustee, Laura Grandy, testified that Ducey was never appointed to represent the bankruptcy estate. They further testified that Edwards retained a financial interest in her lawsuit after it
became an asset of the bankruptcy estate, because she would be entitled to any proceeds from the lawsuit that exceeded the amount of her unsecured claims plus administrative costs.
The evidence that Ducey refiled the medical malpractice complaint after Edwards had filed for bankruptcy amply indicates that he continued to act as Edwards' attorney after she filed for bankruptcy. Therefore, he owed her all of the fiduciary duties attendant to that relationship. The Hearing Board found that the attorney-client relationship continued until at least October 27, 2003, when the court granted Ducey's motion to withdraw. The Hearing Board further found that Ducey was not acting as the bankruptcy estate's attorney when he refiled the complaint, based on the testimony of Mottaz and Grandy that Ducey never represented the estate and never provided them with any information about the lawsuit. These findings are not against the manifest weight of the evidence.
With respect to the allegations that he neglected Edwards' case, Ducey makes the specious argument that he had no duty to comply with the requirements of Section 735 ILCS/5/2-622 of the Code of Civil Procedure if there was no medical negligence in Donna Edward's case. Contrary to Ducey's assertion, the Administrator was not required to prove that there was medical negligence such that a physician could have filed a certificate of merit. Rather, the Administrator was required to prove that Ducey failed to act with reasonable diligence and promptness when representing Edwards and failed to keep Edwards reasonably informed. Pursuant to Section 5/2-622, Ducey was required have a physician review Edwards' medical records. It was deemed admitted that Ducey did not do so. Ducey's testimony that Dr. Curtis Jones reviewed the records and opined that there was no negligence was not part of the evidence before the Hearing Board on the issue of misconduct. Rather, it was allowed only as evidence in mitigation.
Moreover, Ducey's professed inability to comply with Section 5/2-622 does not absolve him of his obligation to inform Edwards about the status of her case. If Ducey believed that he was not able to comply with Section 5/2-622, he was required to explain that to Edwards. He failed to do so and also concealed from Edwards the fact that he voluntarily dismissed her lawsuit. The evidence clearly supports the Hearing Board's findings that Ducey committed the misconduct charged in Count VI when he neglected Edwards' case, failed to communicate with her, and dishonestly concealed from her the status of her case.
With respect to Ducey's refusal to turn over Edwards' file to her, as charged in Count VII, he again asserts that he had no attorney-client relationship with Edwards after she filed for bankruptcy and, consequently, no duty to turn over her file. For the reasons we have already discussed, this argument has no merit. Ducey had no valid basis for refusing to give Edwards her file, and the Hearing Board's findings that he violated Rules 1.16(d) and 8.4(a)(5) and Supreme Court Rule 771 are supported by the evidence.
In summary, we affirm the Hearing Board's findings of fact and misconduct on Counts VI and VII.
The Hearing Board found that Ducey made false statements of material fact or law to the ARDC and the supreme court. In a letter to the ARDC and in a motion to quash subpoena, Ducey stated that the bankruptcy court and trustee, rather than Edwards, were his clients. He refused to produce Edwards' file on the ground that doing so would violate the attorney-client privilege. On January 2, 2004, the trustee of Edwards' bankruptcy estate, Mottaz, sent a letter to the ARDC stating that Ducey never represented the bankruptcy estate. Mottaz also waived any claim of attorney-client privilege on behalf of the bankruptcy estate with respect
to Edwards' medical malpractice claim. The ARDC faxed a copy of this letter to Ducey on January 5, 2004.
On January 4, 2004, Ducey filed in the supreme court a motion to quash subpoena in which he stated that he represented the trustee and raised the attorney-client privilege. In a response to the Administrator's objection to the motion to quash that he attempted to file on January 26, 2004, Ducey stated that he was still counsel for the trustee and also stated that Mottaz had not been the trustee for approximately one year even though he served as trustee until January 14, 2004. The Clerk of the Supreme Court did not file Ducey's response because the court had already denied his motion to quash.
The foregoing evidence amply supports the Hearing Board's findings that Ducey made false statements of material fact and law to a tribunal and to the ARDC. He had no reasonable basis for his statements that he represented the bankruptcy trustee or for his claim of attorney-client privilege. Ducey contends that it was inappropriate for the Hearing Board to consider his response in support of his motion to quash, because it was never actually filed. This argument does not help Ducey because, even without considering the response, the Administrator still proved violations of Rules 3.3(a)(1) and 8.1(a)(1) based on Ducey's statements in his other letters and motions specified in Count VIII.
Accordingly, we reject Ducey's argument that the Hearing Board's findings on Count VIII are against the manifest weight of the evidence.
We now consider the sanction. The Hearing Board recommended that Ducey's license be suspended for eighteen months. The Administrator urges us to recommend a two-year
suspension that runs until further order of the court. Ducey argues that his misconduct warrants a one-year suspension.
The Hearing Board's sanction recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981). When making our own recommendation, we bear in mind that the purpose of the disciplinary process is not to punish, but to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). In the interest of predictability and fairness we strive to recommend similar discipline for similar misconduct, but must evaluate each case in light of its particular circumstances. See In re Howard, 188 Ill.2d 423, 441, 721 N.E.2d 1126 (1999).
We begin by rejecting Ducey's contention that his suspension should run for only one year. His misconduct is much more egregious than the misconduct in the cases upon which he relies. See In re Taylor, 66 Ill.2d 567, 363 N.E.2d 845 (1977); In re Samuels, 126 Ill.2d 509, 535 N.E.2d 808 (1989); In re Gertzman, No. 93 CH 597, approved and confirmed, No. M.R. 12768 (Sept. 24, 1996). The misconduct in Taylor, Samuels, and Gertzman consisted only of neglect of client matters and did not include the additional misconduct present here, which includes three counts of acting in a dishonest and deceitful manner as well as making false statements to the Supreme Court, the Administrator, and the Hearing Board. Those cases are not at all similar to the case before us.
Ducey's misconduct is egregious and demonstrates a lack of respect for his clients' rights and the integrity of our legal system. There are several factors in aggravation, including engaging in a pattern of misconduct, repeatedly demonstrating a lack of candor during
his testimony, refusing to recognize his misconduct, and failing to show any remorse for his misconduct.
At the time the Hearing Board issued its Report and Recommendation, Ducey had no prior discipline. Since that time, however, the supreme court has suspended Ducey for one year, effective October 9, 2007, for representing a client when his representation might be materially limited by his own interests or his responsibility to another client or third person, neglecting two cases, and engaging in dishonest conduct. In re Ducey, No. M.R. 21234 (Sept. 18, 2007). This prior discipline is an aggravating factor (In re Storment, 203 Ill. 2d 378, 786 N.E.2d 963 (2002)) that we now consider.
Ducey has no significant factors in mitigation, as the positive testimony that he presented about his character was contradicted by the testimony of two of the Administrator's witnesses that his reputation for truth and veracity in the legal community was "extremely poor" and "extremely negative."
Based on the serious nature of Ducey's misconduct and the significant factors in aggravation, we conclude that a two-year suspension is warranted. Recently, in In re Kearns, No. 04 CH 80 (Hearing Board, Dec. 13, 2006), petition for leave to file exceptions allowed, No. M.R. 22495 (Sept. 17, 2008)) the supreme court suspended an attorney for two years and until further order of the court for employing an alien not authorized to be employed in the United States, counseling or assisting a client in engaging in illegal conduct, making false statements in an immigration application on behalf of a client, engaging in a conflict of interest, improperly using confidential client information, engaging in the unauthorized practice of law, neglecting two client matters, and failing to promptly turn over a client's file.
Unlike Ducey, Kearns engaged in criminal conduct. Kearns is relevant, however, because of the Hearing Board's focus on Kearns' false statements as well as the fact that Kearns involved numerous types of misconduct and several client matters. See also In re Vickers, 00 SH 77, M.R. 18384 (November 26, 2002) (two-year suspension until further order of court for neglecting two matters, engaging in the unauthorized practice of law, and failing to communicate with clients); In re Thebeau, 111 Ill.2d, 251, 489 N.E.2d 877 (1986) (two-year suspension for notarizing signatures that were not witnessed, misrepresenting facts to a court, and knowingly permitting client to commit forgery). Considering the nature and totality of Ducey's conduct, we conclude that a suspension of two years is necessary to protect the public, maintain the integrity of the legal profession, and caution other attorneys against engaging in similar misconduct.
We further determine that, like Kearns and Vickers, Ducey's suspension should run until further order of the court. The Hearing Board declined to recommend a suspension until further order of the court, concluding that Ducey is capable of understanding and following the rules of ethics if he chooses to do so. However, at the time the Hearing Board made its recommendation, Ducey was not under suspension for other misconduct as he is now. Additionally, based on the record and Ducey's conduct in these disciplinary proceedings, it is evident he does not appreciate the seriousness of his misconduct. Unlike the Hearing Board, we are not confident that Ducey will choose to conform his conduct to the rules of ethics. For these reasons, we are left with the firm conviction that Ducey should not be allowed to return to practice until he has demonstrated to the supreme court that he is capable of and committed to practicing law in an ethical manner.
We affirm the Hearing Board's findings of fact and misconduct except that we reverse the Hearing Board's findings as to Count IV. We recommend that Cornelius Thomas Ducey Jr.'s license be suspended for two years and until further order of the court.
Date Entered: 21 January 2009
Daniel P. Duffy
1 Unless otherwise specified, all references to "Rules" are to the Illinois Rules of Professional Conduct.
2 "Conservator of the estate of a minor or disabled person shall, under supervision of the court, protect, preserve and manage the estate, invest it, on or after August 28, 1998, in accordance with the provisions of the Missouri prudent investor act, sections 469.900 to 469.913, RSMo, apply it as provided in this code, account for it faithfully, perform all other duties required of him by law, and at the termination of the conservatorship deliver the assets of the protectee to the persons entitled thereto."