Filed January 26, 2009

In re Beverly B. Mann
Commission No. 06 CH 38

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) brought a proceeding or asserted an issue where there was no basis for doing so that was not frivolous; 2) made a statement of material fact or law to a tribunal that she knew or reasonably should have known was false; 3) made a statement she knew to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge; 4) practiced law in a jurisdiction where doing so violated the regulation of the legal profession in that jurisdiction; 5) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; 6) engaged in conduct that is prejudicial to the administration of justice; and 7) engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: Rules 3.1, 3.3(a)(1), 5.5(a), 8.2(a), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Suspension from the practice of law for two years and until further order of the Court.

DATE OF OPINION: January 26, 2009.

HEARING PANEL: John B. Whiton, Chair, Terence M. Heuel, and Roberta Parks.

RESPONDENT'S COUNSEL: Pro se.

ADMINISTRATOR'S COUNSEL: Robert J. Verrando.

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

In the Matter of:

BEVERLY B. MANN,

Attorney-Respondent,

No. 3123460.

Commission No. 06 CH 38

REPORT AND RECOMMENDATION OF THE HEARING BOARD

The hearing in this matter was held on January 31, and September 12, 2008, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Board Panel consisting of John B. Whiton, Chair, Terence M. Heuel, and Roberta Parks. Robert J. Verrando appeared on behalf of the Administrator of the ARDC. Respondent appeared pro se.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On June 22, 2006, the Administrator filed a three-count Complaint pursuant to Supreme Court Rule 753(b). The Administrator alleged that Respondent made false statements about the integrity of judges, failed to comply with a sanctions order, and practiced law after being disbarred by the federal court of appeals. Respondent filed an Answer to the Complaint which was deemed as a general denial of the allegations.

THE EVIDENCE

The Administrator presented the testimony of Respondent, and offered exhibits 1-16 which were admitted into evidence. Respondent testified on her own behalf, presented no witnesses, and offered one exhibit which was admitted into evidence.

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Count I

Admitted Facts

Respondent worked as an assistant City of Chicago Corporation Counsel from August 1, 1979, until October 1, 1983. In December 1984, Respondent filed a lawsuit against the City of Chicago in federal district court alleging that the City wrongly discharged her for political reasons. In March 1998, the district court, Judge Wayne Anderson presiding, entered an order granting summary judgment in favor of the City, which disposed of the case. Respondent appealed the district court's decision, and in July 1999, the Seventh Circuit Court of Appeals affirmed the district court's decision.

On May 12, 2000, Respondent filed an application for a writ of mandamus in the Seventh Circuit. Also on May 12, 2000, Respondent filed a motion for judicial recusal in the mandamus action requesting that Judges William Bauer, Kenneth Ripple and Frank Easterbrook be recused from the matter because they were biased against her because of their own interests. (Adm. Ex. 1). In the motion, Respondent also requested the recusal of "all judges who have a son or daughter who works as an advisor to Chicago's mayor, or works as an assistant City of Chicago corporation counsel, or as Chicago's deputy garbage collector general or as . . . (Mann has concluded that there is an employment-opportunities e-mail chain letter that runs from City Hall to the judges' chambers at the Dirksen Federal Building, and then to the computers of the judges' kids.)" (Adm. Ex. 1 at 1).

Respondent also attached to the motion a copy of a complaint for judicial misconduct based on the court's decision in her lawsuit. In the complaint she stated that Judge Bauer "dislikes the laws that encroach upon the at-will employment doctrine and will not enforce those laws." She further stated that Judge Bauer "would not enforce the substantive law pertinent to

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them [counts in her underlying lawsuit] nor even the procedural law that applied to the case." (Adm. Ex. 1 at 3). Respondent further stated that "Judge Ripple's motive was equally self-serving." Additionally, according to Respondent, Judge Ripple enforcement of employment law "ebbed and flowed with the apparent political fortunes of the front-running Republican presidential nominee of the moment and, thus, his own potential as a Supreme Court nominee." (Id.).

On May 19, 2000, Respondent filed a supplement to the petition for writ of mandamus. (Adm. Ex. 2). In that document, Respondent stated: "Mann wishes to make clear: In moving for the recusal of the appellate panel that decided her then-latest appeal, she does not claim merely that that panel wrongly decided that set of appeals. She claims that the panel deliberately wrongly decided it, and that it outright lied in stating that it deemed unworthy of its discussion the issue she presented in those appeals." [emphasis in original]. (Adm. Ex. 2 at 12).

On May 23, 2000, Respondent filed a "clarification of portion of supplement to petition for writ of mandamus and to motion for judicial recusal." (Adm. Ex. 3). In that document, Respondent suggested that the court "casually enage[s] in the case-by-case judicial nullification of laws they do not like and in the undisguised and untroubled deceit inherent in selective faux appellate review (or who close their eyes to it when their colleagues do so) will just as casually overlook the inconvenient fact of a jurisdictional bar when doing so enables them to protect their own (conflict of) interest." (Adm. Ex. 3 at 3).

On June 28, 2000, Respondent filed a "second supplement" to the petition for mandamus. (Adm. Ex. 4). In that document, Respondent sated that Judges Andersen, Bauer, Ripple, and Easterbrook had "consciously contravened numerous long-recognized principles of substantive law and denied [Respondent] even the most fundamental procedural due process in order to

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terminate this litigation." She further stated that she would receive "no meaningful appellate review" of the district court's decision. (Adm. Ex. 4 at 2).

On August 25, 2000, Respondent filed a motion for a ruling on her petition for a writ of mandamus and motion for judicial recusal. (Adm. Ex. 5). In that motion, Respondent stated that Judge Illana Rovner ruled against her in a prior matter because Judge Rovner's son worked for the Mayor's office. She further stated that "Judge Rovner has cultivated a reputation as a staunch defender of women who sue their employer or former employer because of gender-related discriminatory conduct, but only women who are not suing people or entities with ties to her son or to herself." (Adm. Ex. 5 at 5).

On October 13, 2000, the Seventh Circuit denied the petition for mandamus. (Adm.Ex. 7). On October 30, 2000, Respondent filed an amended motion for reconsideration of a final order and for reconsideration en banc. (Adm. Ex. 8). In that motion, Respondent again claimed that because Judge Rovner's son was employed by the Mayor's office, Judge Rovner was bias in favor of the City. (Adm. Ex. 8 at 5-6). She also characterized a portion of the court's decision as "downright weird" and averred that "no judge - no judge -- read any portion of Mann's opening brief in that appeal except that single section that addressed the erroneous actual-malice jury instruction on the defamation count . . ." (Adm. Ex. 8 at 7). Respondent also characterized the court's decision as a "shoot-from-the-hip advisory opinion written by a haughty judge as an ostentatious demonstration of fidelity to her impugned colleagues - colleagues whose integrity Mann has questioned because they rendered her an unwitting dupe in two successive ornamental appeals." (Adm. Ex. 8 at 14).

Respondent also stated that federal judges "enjoy absolute immunity from liability for their judicially related conduct, however brazenly self-serving or outright corrupt that conduct

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is." (Adm. Ex. 8 at 17). She further stated that the judges that decided the matter "view their primary professional obligation as accruing not to the public and to the ideals of justice and law but to one another; thus borderline-comical Pavlovian threats." (Adm. Ex. 8 at 18). Respondent stated that the issue before the court "hardly is an appropriate subject for a shoot-from-the-hip advisory opinion written by a haughty judge as an ostentatious demonstration of fidelity to her impugned colleagues - colleagues whose integrity Mann has questioned because they rendered her an unwitting dupe in two successive ornamental appeals." (Adm. Ex. 8 at 14).

The Administrator alleged that Respondent's statements concerning the various judges were false, Respondent should have known they were false, and Respondent had no reasonable basis for believing the statements were true. In her Answer to the Complaint, Respondent stated the Administrator failed to allege sufficient facts to demonstrate that her statements were false. She further stated that "nor does the Administrator identify any mechanism by which Mann - who lacked access to the judges themselves, their clerks, their secretaries, and their internal memos - could have obtained information that indicated the falsity of the statements, least of all statements regarding the scienter of the judges at issue; scienter, by its nature, almost always must be proved using only indirect, or circumstantial, evidence." (Resp. Answer at 15). Respondent also stated in her answer that some of the statements she made "are, or probably are, accurate and that in any event so much time has elapsed since the events at issue that Mann probably will be unable to obtain the tangible evidence that she might otherwise have been able to obtain in order to prove the statements accurate." (Resp. Answer at 16).

Count II

In December 1998, Respondent filed a complaint in federal district court against the Clerk of the Circuit Court of Cook County challenging constitutionality of the fees charged by

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the Clerk to reproduce the court record for appeal. In August 1999, the district court granted a motion to dismiss the complaint. In October 1999, Respondent filed an appeal from the district court's order. On August 31, 2001, the Seventh Circuit remanded the case to the district court with instructions to abstain from interfering with the actions of the state court. The court stated that Respondent "multiplied these proceedings unreasonably and, in an objective sense, vexatiously." The court issued a rule to show cause against Respondent to show why she should not be ordered to pay the defendant's expenses and attorney's fees. (Adm. Ex. 11 at 11-12).

On September 19, 2001, the Seventh Circuit ordered Respondent to personally pay the defendant's costs and legal fees in the amount of $5,180. (Adm. Ex. 11 at 13-14). In June 2002, the court issued a rule to show cause order based on Respondent's failure to pay the sanctions order. On June 28, 2002, Respondent filed a response to the rule to show cause. (Adm. Ex. 10). On November 1, 2002, the Seventh Circuit entered an order removing Respondent from the roll of attorneys authorized to practice law in that court. (Adm. Ex. 11 at 1-4).

Respondent's Testimony

Judge Easterbrook removed the case from the normal assignment procedure and kept it in his office for 18 months after the briefs were filed. (Tr. 249-50; Resp. Ex. 1). The court entered a sanctions order, and Respondent failed to pay the sanction. (Tr. 259-60). The sanction order was entered by the court sua sponte. (Tr. 270-71).

Respondent testified that she has had a "longstanding feud" with Judge Easterbrook. It began when she worked for the City of Chicago and handled a case in the Seventh Circuit. (Tr. 176-79). According to Respondent, Judge Easterbrook filed complaints with the ARDC on three separate occasions based on statements Respondent made in motions filed with the court. (Tr. 186-88).

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Count III

After November 1, 2002, Respondent was no longer authorized to practice law in the Seventh Circuit or to hold herself out as an attorney authorized to practice law before that court. In 1998, James Snyder, an inmate of the Illinois Department of Corrections, filed a lawsuit in the federal district court for the Southern District of Illinois against corrections officials alleging that they denied him access to the courts. On March 7, 2001, the district court dismissed the case. In April 2001, Snyder filed an appeal from the dismissal order. Between 2001 and 2004, Snyder was represented in the appeal by attorneys from the New York office of the Jones, Day, Reavis and Pogue law firm. In August 2004, the Seventh Circuit affirmed the district court's decision, and on September 8, 2004, issue its mandate. In August 2004, Respondent telephoned the Jones Day law firm, and spoke with attorney Todd Geremia, and encouraged him to file a petition for rehearing in the Snyder matter. Subsequently, Respondent sent Geremia a lengthy assessment of the legal issues involved in Snyder's appeal.

On September 1, 2004, Respondent sent Geremia a letter explaining her objections to the Snyder decision. (Adm. Ex. 16 at 5-13). In that letter Respondent stated, "if you're unwilling to file a petition for rehearing, I would be happy to draft one along the lines of what I've written here and forward it to Snyder for him to file pro se if he wishes." (Adm. Ex. 16 at 12). She also explained some of her legal qualifications, and failed to mention that she was not allowed to practice law before the Seventh Circuit. (Adm. Ex. 16 at 12-13). Later in September 2004, Geremia informed Respondent that Jones Day would not represent Snyder in a petition for rehearing. Subsequently, Snyder sent Respondent a letter requesting she represent him.

Respondent prepared a motion to recall the mandate in the appeal, and for leave to file the petition for rehearing, and filed the motion on September 23, 2004. Respondent signed

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Snyder's name on the motion, as "Plaintiff-Appellant Pro Se" and affixed her initials. (Adm. Ex. 14 at 1). In the motion Respondent stated, in a footnote, that "this document was drafted by the non-practicing Chicago lawyer whose name appears at the bottom of Appendix 3. It was written in response to a typed two-page letter to her from Mr. Snyder, dated September 19, in which he asks for her assistance in drafting a petition for writ of certiorari in the matter." (Adm. Ex. 13 at 5). Respondent is identified at the end of Appendix 3. (Adm. Ex. 13 at 46). Additionally, Respondent attached to the motion, a copy of the nine-page letter she sent to Geremia, and specifically requested that the letter be considered as part of the motion. (Adm. Ex. 13 at 38-46).

On September 30, 2004, Respondent sent a letter to Snyder advising him to file a petition for certiorari and offered to draft the petition for him. (Adm. Ex. 14 at 7-9). In the letter, she stated that she drafted the motion to withdraw the mandate, signed it, and filed it with the court. (Adm. Ex. 14 at 7). She ended the letter by asking Snyder to let her know how he wanted her to proceed regarding the certiorari petition. (Adm. Ex. 14 at 9).

On October 5, 2004, Respondent filed a motion for ruling on the motion to recall the mandate and for leave to file a petition for rehearing. (Adm. Ex. 14 at 1-2). Respondent prepared the motion and signed Snyder's name on the motion as "Plaintiff-Appellant Pro Se" and affixed her initials. (Adm. Ex. 14 at 1). Respondent also stated that the certiorari petition would be prepared either by a new attorney or by her. If Respondent prepared it, she would forward it to Snyder who would file it pro se. (Adm. Ex. 14 at 2).

On July 8, 2005, the Seventh Circuit issued an order finding that Respondent violated the disbarment order. (Adm. Ex. 15). The court found that Respondent "drafted, signed and physically delivered documents to the court from which she was barred." She also "submitted a memorandum of law in support of a motion." (Adm. Ex. 15 at 4). After considering all the

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facts, the court found that Respondent "knew her actions were prohibited" and was "an act of contempt." (Id.). The court imposed a $500 fine.

Respondent's Testimony

Respondent currently resides in Michigan, and practices law on a limited basis. (Tr. 64-65). Respondent learned of the Snyder case after reading the Seventh Circuit's opinion. She believed that Judge Easterbrook wrongly interpreted the law and his opinion would severely limit access to the courts for certain plaintiffs. (Tr. 76). Respondent was interested in that issue, and did not want Judge Easterbrook's opinion to stand. (Tr. 76-77).

James Snyder was originally represented on a pro bono basis by the New York office of the Jones Day law firm. Respondent was interested in the case, and contacted Todd Geremia, the attorney at Jones Day who was responsible for the case and. (Tr. 221-23). Respondent called Geremia the day after she read the opinion and told him that she had extensive knowledge about the issue. She did not tell him that she was licensed to practice law before the Seventh Circuit. (Tr. 78-79, 231-31). At Geremia's request, Respondent put her comments in writing and e-mailed them to him. Subsequently, Geremia informed Respondent that the firm would not pursue the matter. (Tr. 223-25). He asked Respondent if she would assist Snyder, and Respondent told him that she was not allowed to practice before the seventh circuit. (Tr. 224). Respondent denied that she had an attorney-client relationship with Snyder, and she informed him by letter that she could not practice law before the Seventh Circuit. 232-33). Respondent knew that Snyder was incarcerated. (Tr. 259). She admitted writing the September 8, 2004, letter which she sent to James Snyder. (Tr. 65-66; Adm. Ex. 12). Also in September 2004, Respondent sent a letter to Geremia containing a legal analysis involving the Snyder case, and asking Geremia to send the analysis to Snyder. (Tr. 70-72; Adm. Ex. 16).

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After Respondent talked to Snyder, he filed a pro se petition for rehearing. The court found it was untimely filed. (Tr. 246-47). Snyder asked Respondent to draft a motion for him stating that he had timely filed the petition for rehearing. (Tr. 247). Respondent drafted the motion and put Snyder's name on it, along with her initials, and filed it with the court. (Tr. 83-86, 247-48, 263). Based on the motion, the court accepted the pro se petition for rehearing. (Tr. 248). Respondent had no further contact with Snyder. (Tr. 248-49). Respondent believed she was acting properly under Supreme Court cases that allow others to assist prisoners get access to the courts. (Tr. 86-87).

Prior Discipline

Respondent has received no prior discipline.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). "Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, § 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).

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In this case, based on the evidence and testimony presented at the hearing, we find that the Administrator proved, by clear and convincing evidence, that Respondent engaged in all of the misconduct alleged in the Complaint. Specifically, we conclude the Administrator proved that Respondent: 1) brought a proceeding or asserted an issue where there was no basis for doing so that was not frivolous; 2) made a statement of material fact or law to a tribunal that she knew or reasonably should have known was false; 3) made a statement she knew to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge; 4) practiced law in a jurisdiction where doing so violated the regulation of the legal profession in that jurisdiction; 5) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; 6) engaged in conduct that is prejudicial to the administration of justice; and 7) engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Rules 3.1, 3.3(a)(1), 5.5(a), 5.5(a), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

Count I

Regarding Count I of the Complaint, we find that the Administrator proved that Respondent asserted an issue where there is no basis for doing so that is not frivolous; made a statement of material fact to a tribunal she knew or reasonably should have known was false; made a statement she knew to be false or with reckless disregard as to its truth or falsity concerning the integrity of a judge; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; engaged in conduct that is prejudicial to the administration of justice, and engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Rules 3.1, 3.3(a)(1), 8.2(a), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

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The statements Respondent made about certain judges of the Seventh Circuit Court of Appeals are undisputed. The issue we must resolve is whether these statements violated ethical rules. We believe they did. It is apparent that Respondent repeatedly made statements in court documents that were false, attacked the integrity of judges, and accused judges of deciding cases on an improper basis.

In a motion for judicial recusal filed in May 2000, Respondent requested the recusal of all judges in the Seventh Circuit who have a son or daughter working for the City of Chicago because she had "concluded that there is an employment-opportunities e-mail chain letter that runs from City Hall to the judges' chambers at the Dirksen Federal Building, and then to the computers of the judges' kids." In an attachment to that motion, Respondent stated that that Judge Bauer would not enforce substantive or procedural laws relating to at-will employment. She further stated that Judge Ripple's enforcement of these laws was based on his interest in receiving an appointment to the United States Supreme Court, and not the rule of law.

Also in May 2000, Respondent filed a supplement to a petition for a writ of mandamus in which she explained that her motion for recusal was not made simply because the court "wrongly decided" her appeal, but because it "deliberately wrongly decided it" and "outright lied" in the opinion. A few days later, Respondent filed clarification to the previous motions and stated that the court "casually enage[s] in the case-by-case judicial nullification of laws they do not like and in the undisguised and untroubled deceit inherent in selective faux appellate review (or who close their eyes to it when their colleagues do so) will just as casually overlook the inconvenient fact of a jurisdictional bar when doing so enables them to protect their own (conflict of) interest." In August 2000, in a motion for a ruling on a writ of mandamus, Respondent stated that Judge Rovner ruled against her because Judge Rovner's son works for the Mayor's office. Respondent

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repeated this allegation in an amended motion for reconsideration she filed in October 2000. She also characterized the court's decision as "downright weird" and as a "shoot from the hip advisory opinion written by a haughty judge as an ostentatious demonstration of fidelity to her impugned colleagues whose integrity Mann has questioned because they rendered her an unwitting dupe in two successive ornamental appeals." There can be little question that these statements impugned the integrity of the judges and the court. She repeatedly accused various judges of deciding her case on an improper basis.

Respondent argues that there would only be an ethical violation if the statements were false, and the Administrator failed to prove they are false. Respondent's argument is not an accurate recitation of the law. The Administrator need not prove that the statements were false. The plain language of the relevant Rules establishes that the Administrator need not prove that Respondent's statements were false. Rule 3.2(a)(1) provides that a lawyer shall not "make a statement of material fact or law to a tribunal which the lawyer knows or reasonable should know is false." Rule 3.2(a) of the Illinois Rules of Professional Conduct (emphasis added). Rule 8.2(a)(1) provides that a lawyer shall not "make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . ." Rule 8.2(a)(1) of the Illinois Rules of Professional Conduct (emphasis added). Accordingly, the Administrator must only prove that Respondent had no reasonable basis for believing the statements were true or made them with reckless disregard for the truth. To meet this standard, we need go no further than her answer to the disciplinary complaint.

In her answer, Respondent stated: "nor does the Administrator identify any mechanism by which Mann -- who lacked access to the judges themselves, their clerks, their secretaries, and their internal memos - could have obtained information that indicated the falsity of the

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statements, least of all statements regarding scienter of the judges at issue; scienter, by its nature, almost always must be proven using only indirect, or circumstantial, evidence." By making this statement in her answer, Respondent has admitted that she had no facts or evidence to support her statements. She admits that she lacked access to the judges, court personnel or documents that might substantiate her claims.

Respondent also admitted in her answer that some of the statements she made "are, or probably are, accurate and that in any event so much time has elapsed since the events at issue that Mann probably will be unable to obtain the tangible evidence that she might otherwise have been able to obtain in order to prove the statements accurate (emphasis added)" This statement further supports the conclusion that Respondent had no evidence to substantiate her statements about the judges at the time she made them.

Accordingly, not only did Respondent lack a reasonable basis to make these statements about the judges, she admits that she had absolutely no basis for making them and made them with reckless disregard for their truth. Therefore, we find that the numerous statements Respondent made about sitting judges of the Seventh Circuit were unsubstantiated speculation and violated the Rules of Professional Conduct. Moreover, in making these statements Respondent engaged in conduct involving dishonesty, deceit and misrepresentation; conduct prejudicial to the administration of justice; and conduct that tends to defeat the administration of justice and brings the courts and the legal profession into disrepute.

Respondent suggests that she had a first amendment right to make these statements about the judges. We disagreed. Although attorneys have the same first amendment rights as any other citizen, "no individual enjoys the freedom under our Constitution to make false and defamatory statements against others with actual malice i.e., with knowledge that the statements

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are false, or with reckless disregard for their truth or falsity." In re Zurek, 99 CH 45, M.R. 19164 (September 19, 2002) (Hrg. Bd. Report at 20), citing New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964); McDonald v. Smith, 472 U.S. 479, 105 S. Ct. 2787 (1985). Further, judges are not insulated from criticism, however "the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language, and offensive conduct toward judges personally by attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity, cannot be permitted." Zurek, 99 CH 45 (Hrg. Bd. Report at 20)..

Count II

We find that the Administrator proved, by clear and convincing evidence, that Respondent engaged in all of the misconduct alleged in Count II of the Complaint. Specifically, we find that Respondent failed to comply with a sanction order issued by the Seventh Circuit and, in so doing, engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice and bring the courts or the legal profession into disrepute in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

It is undisputed that on September 19, 2001, the Seventh Circuit ordered Respondent to personally pay $5,180 for defendant's costs and fees. Respondent failed to comply with the order. In June 2002, the Seventh Circuit issued a rule to show cause. On June 28, 2002, Respondent filed a response to the rule to show cause. On November 1, 2002, the Seventh Circuit entered an order removing Respondent from the rolls of attorneys authorized to practice law in that court. Based on these facts, it has been proven that Respondent failed to comply with

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a valid court order requiring her to pay $5,180. Her continued refusal to comply with that order lead to her disbarment before the Seventh Circuit. Respondent offered no evidence to explain her failure to comply, and as of the date of her disciplinary hearing, she has yet to comply with the court's order. An attorney's open defiance of a valid court order amounts to a violation of her ethical obligations.

Count III

We find that the Administrator proved, by clear and convincing evidence, that Respondent engaged in all of the misconduct alleged in Count III of the Complaint. Specifically, we find that Respondent practiced law in the Seventh Circuit while she was not authorized to practice before that court. Accordingly, Respondent practiced law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; engaged in conduct prejudicial to the administration of justice; and engaged in conduct which tends to defeat the administration of justice and bring the courts or the legal profession into disrepute in violation of Rules 5.5(a), 8.4(a)(4), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

The Illinois Supreme Court has found that a "[d]efinition of the term ‘practice of law' defies mechanistic formulation." In re Discipio, 163 Ill. 2d 515, 523, 645 N.E.2d 906 (1994). Instead, in determining whether conduct amounts to the practice of law, the Court has examined the character of the conduct, including whether the conduct involved court appearances, required giving legal advice, required the use of legal knowledge and skill in order to apply legal principles and precedent, or required the preparation of legal instruments. See In re Howard,

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(1999); Discipio, 163 Ill. 2d at 523; In re Yamaguchi, 118 Ill 2d 417, 426-27, 515 N.E. 2d 1235 (1987).

Respondent essentially represented Snyder, gave legal advice, and drafted and filed motions in the Seventh Circuit while she was disbarred from that court. It is undisputed that on November 1, 2002, the Seventh Circuit removed Respondent from the rolls of attorneys authorized to practice law in that court, and she continues to be disbarred from practicing before that court. In August 2004, the Seventh Circuit issued a decision in the Snyder case. Snyder had been represented by the Jones Day law firm before the Seventh Circuit, but that firm declined to represent Snyder any further in the matter. Respondent read the court's decision and believed it was incorrect. In September 2004, Respondent contacted Geremia, an attorney at Jones Day, to discuss the case, and sent him a detailed nine page letter assessing the legal issues and explaining her objections to the Snyder decision. Subsequently, Snyder sent a letter to Respondent asking her to represent him in a petition for rehearing.

Respondent prepared a motion to recall the mandate in the appeal and for leave to file the petition for rehearing. She also attached to her motion, the nine page letter she had sent to Geremia. On September 23, 2004, Respondent filed the motion with the court. Respondent prepared a motion for ruling on the motion to recall the mandate, and filed that motion on October 5, 2004.

There can be little question that by drafting and filing motions with the Seventh Circuit, Respondent was practicing law in that court. The preparation of these motions required the use of legal knowledge and the application of legal principles and precedent. Even a cursory review of these motions and attachments clearly establishes that Respondent analyzed case law, compared the Snyder case to other cases, and discussed the United States Constitution and

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federal statutes, all of which entail the practice of law. Additionally, it is clearly established that Respondent gave Snyder legal advice regarding his pending Seventh Circuit matter. Therefore, we find that Respondent practiced law in a court from which she was disbarred.

Respondent's also engaged in conduct involving dishonesty, deceit and dishonesty. Initially, she failed to inform either Geremia or Snyder that she was not authorized to practice law in the Seventh Circuit. She discussed the case with Geremia and exchanged letters with Snyder without disclosing this important fact. She compounded her misconduct by filing the motions using Synder's name and indicating that he was proceeding pro se. For all of the motions Respondent filed, she signed Snyder's name as "Plaintiff-Appellant Pro Se" and initialed it with her initials. By signing Snyder's name as a pro se litigant, Respondent was representing to the court that he had authored the motions. This representation was dishonest, deceitful and a misrepresentation.

Respondent argues that she did not engage in misconduct because in the motion to recall the mandate she identified herself as a non-practicing attorney and stated that Snyder asked for her assistance in the case. These facts are insufficient to affect our findings. The fact remains that Respondent signed Snyder's name to the motions indicating that he had prepared them, and he did not. This is a violation of her ethical obligations. Additionally, the fact that Snyder asked Respondent to represent him is inconsequential. Respondent lost her privilege to practice law in the Seventh Circuit, and Snyder's request for representation could not restore that privilege.

Respondent's primary argument is that she was not representing Snyder, but acting properly under Supreme Court precedent which allowed her to assistance a prisoner obtain access to the courts. Citing Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491 (1977); Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174 (1996). According to Respondent, these cases allow non-

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lawyers to assist prisoners in legal matters, and therefore, would allow her to assist Snyder in his case. We find that the holdings of these cases do not support Respondent arguments.

In Bounds, state prisoners alleged that they were denied access to the courts because the state failed to provide them with an adequate legal library. The Court stated, "[w]e hold, therefore, that he fundamental constitutional right of access to the court requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds, 430 U.S. at 828. The Court explained that an adequate law library was one acceptable method to assure meaningful access to the courts, but not the only method. The Court also stated that the persons trained in the law can be professionals or paraprofessionals, including trained inmates or law students working under the supervision of an attorney. Id. at 830. In Lewis, prisoners alleged that state prison officials violated their right to access to the courts because they provided inadequate legal research facilities. The Court restated and further explained the holding in Bounds as it applied to the facts of the case before it.

The Bounds and Lewis cases clearly state that prisoners are entitled to access to the courts, and that the States must provide them adequate law libraries or assistance from persons trained in the law. Although it is true that the persons trained in the law need not be attorneys and can be paralegals or trained inmates, there is absolutely nothing in these cases suggesting that a disbarred attorney can assist a prisoner in court matters. Further, there is nothing in these cases allowing for non-attorneys who are not provided by the correctional system to assist prisoners. The cases simply articulate what the state correctional system must provide to prisoners to protect their constitutional rights. They do not address the situation before us, where

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a disbarred private attorney seeks to represent a prisoner. Accordingly, Bounds and Lewis are completely inapplicable to the present case.

RECOMMENDATION

The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986). Also, "it is important to recognize the deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." Twohey, 191 Ill. 2d at 85.

The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In the present case there are few mitigating factors and several aggravating factors.

Respondent's misconduct is mitigated by the fact that she has not been previously disciplined. Respondent has been practicing law for almost 30 years without incident. Generally we consider this a mitigating factor, however, based on the egregious facts of this case, we give this factor little weight. See In re Demuth, 126 Ill. 2d 1, 14, 533 N.E.2d 867 (1988).

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Respondent aggravated her misconduct by failing to recognize the seriousness of her misconduct and showing a lack of remorse for her misconduct. Respondent failed to acknowledge that she has done anything improper. She adamantly insisted she was the wronged party. This is difficult to understand. At a minimum, Respondent should have acknowledged that she ignored at least one valid court order and refused to comply with the court's sanction order. In fact she has still not paid the sanctions imposed by the Seventh Circuit. Failing to recognize the seriousness of misconduct and the lack of remorse are aggravating factors that must be considered. In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990). We find nothing in the record to indicate that Respondent will not repeat her misconduct. Her persistent denial of any wrongdoing proves to us that she fails to understand the true nature of her misconduct or is genuinely remorseful for it.

Respondent's misconduct is also aggravated by the fact that it was willful. Respondent repeatedly and purposely attacked the integrity of several judges, and she went out of her way to represent Snyder in a matter after she was disbarred from the Seventh Circuit in defiance of a court order. See In re Mason, 122 Ill. 2d 163, 175, 522 N.E.2d 1232 (1988) (willfulness can be an aggravating factor).

Having considered the mitigating and aggravating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be either disbarred or suspended from the practice of law for two or three years and until further order of the court, and cites to several cases to support this recommendation. See In re Jafree, 93 Ill. 2d 450, 444 N.E.2d 143 (1982) (attorney disbarred after filing more than 40 lawsuits against judges containing defamatory allegations); In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13, (1973) (attorney suspended for two years and until further order of the court after filing documents making

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defamatory statements against judges and filing a lawsuit against judges for damages); In re Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971) (attorney suspended for two years and until further order of the court after filing groundless and defamatory lawsuits against judges); In re Feldman, 03 CH 23, M.R. 20132 (May 20, 2005) (attorney disbarred after sending threatening letters to several judges); In re Zurek, 99 CH 45, M.R. 19164 (September 19, 2002) (attorney disbarred after making offensive and defamatory statements including that a judge took a bribe, and acting in a threatening manner during a deposition); In re Palmisano, 92 CH 109, M.R. 10116 (May 19, 1994) (attorney disbarred after making unfounded defamatory statements about judges and other attorneys). Respondent argues that the Administrator failed to prove his case, and that the charges should be dismissed. She made no recommendation for an appropriate sanction, and cites to no supporting disciplinary cases.

After reviewing the cases cited by the Administrator, and other relevant cases, we believe that a two year suspension and until further order of the court is the appropriate sanction in this matter. We find the cases cited by the Administrator, while instructive, are distinguishable from the present case because they either involve more egregious misconduct or misconduct that is not analogous to the misconduct in the present case.

In the present case, the most significant misconduct Respondent engaged in was failing to comply with the Seventh Circuit's sanctions order and practicing law before Seventh Circuit after she had been disbarred from practicing before that court. By making this finding, we do not intend to diminish the seriousness of the misconduct involved in Count I of the Complaint; however, Respondent's statements about certain judges, while improper, were not as slanderous and outrageousness as those statements made by the attorneys in the cases cited by the Administrator.

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In a recently decided disciplinary case, an attorney was suspended for two years and until further order of the court for misconduct strikingly similar to the misconduct involved in this case. See In re Bredemann, 05 CH 102, M.R. 22793 (January 20, 2009). In Bredemann, on May 15, 1998, the Seventh Circuit entered an order striking Bredemann's name from the roll of attorneys authorized to practice law in that court based on his failure to respond to two rules to show cause after he failed to file a brief on behalf of a client. On March 3, 2004, without being reinstated, Bredemann filed a notice of appeal on behalf of his client, Ronald Borchert, in a federal criminal matter. After receiving the appeal, the Seventh Circuit entered an order stating that because Bredemann had been sticken from the roll of attorneys, Borchert needed to retain other counsel.

Subsequently, Bredemann prepared a document entitled "statement of representation by Ronald Brochert" and affixed the signature of attorney James Flood to it. Flood did not give Bredemann permission to affix his signature to the document and was not representing Brochert. The appeal was later dismissed by the Seventh Circuit.

On December 27, 2004, Bredemann filed a second notice of appeal in the same federal court matter. The Seventh Circuit entered an order stating that Bredemann had been stricken from the roll of attorneys, and ordering Brochert to retain other counsel. Subsequently, Bredemann prepared and filed a document entitled "appearance and motion for substitution of counsel" and affixed Floods name to the document. Flood did not give Bredemann permission to affix his signature to the document. Shortly thereafter, Bredemann prepared and filed a motion to dismiss the appeal and affixed Flood's name on the motion as attorney for Brochert.

Based on these facts, the Hearing Board found that Bredemann engaged in the unauthorized practiced law in the Seventh Circuit, and deceived the court by filing motions using

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another attorney's name. In aggravation, Bredemann expressed no remorse for his misconduct, placed Flood's legal career and reputation in jeopardy, place his client's interest in jeopardy, and engaged in the misconduct while on probation for a prior disciplinary matter. The Hearing Board recommended that Bredemann be suspended for two years. Citing In re Bodkin, 21 Ill. 2d 458, 173 N.E.2d 440 (1961) (attorney suspended for three years for engaging in the unauthorized practice of law and conversion); In re Salzman, 03 CH 28, M.R. 19950 (March 18, 2005) (attorney suspended for nine months for engaging in the unauthorized practice of law). The Review Board affirmed the Hearing Board's recommendation, and the Supreme Court added the until further order of the court provision.

We find the misconduct in Bredemann sufficiently similar to the misconduct in the present case to warrant a similar term of suspension. Although Respondent has not received a prior discipline, her misconduct is more egregious than the misconduct in Bredemann. Respondent has shown a steadfast defiance of the Seventh Circuit by refusing to pay the sanction order and repeatedly preparing and filing documents in the court while she was disbarred from that court. Additionally, Respondent made numerous and repeated disparaging remarks about several judges. Based on these facts, we recommend that Respondent be suspended from the practice of law for two years.

We further recommend that Respondent's suspension remain in effect until further order of the court. A suspension until further order of the court is appropriate where an attorney demonstrates an inability to conform to the normal standards of the legal profession. See In re Houdek, 113 Ill. 2d 323, 497 N.E.2d 1169 (1986); In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978). In the present case, Respondent has demonstrated that she is unable or unwilling to conform to professional standards. Respondent's attacks against judges who ruled against her,

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her failure to comply with a valid sanctions order, her continued practice of law before the Seventh Circuit. After being disbarred from that court, and her refusal to acknowledge any wrongdoing, indicate that she is unwilling or unable to comply with valid court orders and the rules of professional conduct. We believe Respondent should remain suspended until she can prove that she understands her ethical obligations and is capable of complying with them.

Therefore, in light of Respondent's misconduct, and considering the aggravating and mitigating factors and relevant case law, we recommend that Respondent be suspended form the practice of law for two years and until further order of the court.

Date Entered: January 26, 2009

John B. Whiton, Chair, with Hearing Panel Member Roberta Parks concurring.

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Partial Concurrence and Dissent

I agree with the vast majority of the findings of fact and conclusions of law and all of the recommendation. However, I respectfully dissent from the Panel findings in Count I, regarding false statements concerning the integrity of judges. In my opinion, the Administrator did not meet his substantial burden of proof and should be required to present more evidence to establish the falsity of Respondent's statements. In at least two cases cited by the Administrator in support of his arguments, judges who were the subject of the attorney's statements testified that the statements were false. See Feldman, 03 CH 23, M.R. 20132 (May 20, 2005); Zurek, 99 CH 45, M.R. 19164 (September 19, 2002) Moreover, Respondent's statements, unlike statements made by other attorneys in cases cited by the Administrator, were not threatening to the judges. Despite my disagreement with the Panel's findings regarding Count I, I agree with the findings in Counts II and III, and based on the findings in those two Counts, I agree with the proposed sanction.

Terence M. Heuel, Hearing Panel Member