Filed March 29, 2010
In re Beverly B. Mann
Commission No. 06 CH 38
Synopsis of Review Board Report and Recommendation
Mann was charged with misconduct in a thee-count complaint. Count I involved statements Mann made, primarily in pleadings, involving the integrity of certain judges. As to Count I, Mann was charged with bringing a proceeding or asserting an issue that is frivolous, making a statement of material fact or law to a tribunal that she knew or reasonably should have known was false, making a statement she knew to be false or with reckless disregard for its falsity about the qualifications or integrity of a judge, and engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. Count II involved Mann's failure to comply with a court order for sanctions, leading to her disbarment by the Seventh Circuit Court of Appeals. As to Count II, Mann was charged with engaging in conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. Count III involved Mann's conduct, following her disbarment by the Seventh Circuit, in relation to a matter pending before that Court. As to Count III, Mann was charged with practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction, and engaging in conduct involving fraud, dishonesty, deceit, or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute.
Mann denied the allegations of the complaint.
The Hearing Board majority found that Mann engaged in all of the misconduct charged and recommended a suspension for two years and until further order of the Court (UFO). The third member of the hearing panel dissented from the findings of misconduct as to Count I, but concurred in the remainder of the Hearing Board report.
The case was before the Review Board on the Mann's exceptions, challenging various aspects of the Hearing Board's report and the findings of misconduct. The Administrator sought to have the Review Board affirm the Hearing Board majority's findings of misconduct and the Hearing Board's sanction recommendation.
The Review Board affirmed the findings of misconduct by the Hearing Board majority, as well as the sanction recommended by the Hearing Board.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
BEVERLY B. MANN,
Commission No. 06 CH 38
REPORT AND RECOMMENDATION OF THE HEARING BOARD
This case is before the Review Board on exceptions filed by Respondent-Appellant, Beverly B. Mann. After a hearing, the Hearing Board majority found that Mann had engaged in all of the misconduct charged in the Administrator-Appellee's three-count complaint and recommended that Mann be suspended for two years and until further order of the Court (UFO). The third member dissented from the findings of misconduct as to Count I, but concurred in the remainder of the majority's report.
Count I charged Mann with misconduct based on statements she made about the integrity of certain judges. Most of these statements were made in pleadings filed in connection with civil litigation brought by Mann.1 Count I charged Mann with: a) bringing a proceeding or asserting an issue that was frivolous in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 3.1); b) making a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false in violation of Rule 3.3(a)(1) (134 Ill. 2d R. 3.3(a)(1)); c) making a statement the lawyer knows to be false or with reckless disregard for its truth or falsity concerning the qualifications or integrity of a judge in violation of Rule 8.2(a) (134 Ill. 2d R. 8.2(a)); d) engaging in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)); e) engaging in conduct
that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(4)); and f) engaging in conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770).
Count II charged that Mann engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770. Count II was based on Mann's failure to comply with a court-imposed order for sanctions; as a result of that conduct, the United States Court of Appeals for the Seventh Circuit disbarred Mann.
Count III charged that Mann practiced law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction in violation of Rule 5.5(a) (134 Ill. 2d R. 5.5(a)) and engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4), conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5), and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770. Count III was based on Mann's conduct in relation to a case pending before the Seventh Circuit, after that Court had disbarred her.
Mann raises numerous objections to the Hearing Board's findings of misconduct. The Administrator seeks to have the Review Board uphold the Hearing Board majority's findings of misconduct and the Hearing Board's sanction recommendation.
Initially, we note that the statement of facts in Mann's brief does not include record citations to support Mann's assertions of fact. This violates ARDC Rule 302(f)(4) (Dis.
Com. R. 302(f)(4)). While we decline to strike Mann's statement of facts, the Review Board has independently reviewed the record and bases this report on that independent review. See e.g., In re Morton, 98 CH 24 (Review Board Oct. 30, 2000), approved and confirmed, M.R. 17272 (March 22, 2001).
Mann has no prior discipline. At the time of the hearing, she lived in Michigan. She did not have a law office. Mann's practice was limited to assisting another attorney in a case involving a friend's son. That case was pending in federal district court in Michigan.
In 1984, Mann was discharged from her job as an Assistant Corporation Counsel for the City of Chicago. In December 1984, Mann filed a lawsuit against the City in the United States District Court for the Northern District of Illinois, alleging wrongful discharge.
In March 1998, Judge Wayne Andersen granted summary judgment against Mann and in favor of the City in that lawsuit. Mann appealed to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit affirmed the summary judgment order in July 1999.
In May 2000, Mann filed a petition for writ of mandamus in the Seventh Circuit. On May 12, 2000, in connection with the mandamus case, Mann filed a motion seeking to recuse three specific Seventh Circuit judges, on the grounds that she had filed complaints against them alleging judicial misconduct. Mann's motion also sought to recuse all judges who had a son or daughter working for the City. Mann's motion stated that: "Mann has concluded that there is an employment-opportunities e-mail chain letter that runs from City Hall to the judges' chambers …. and then to the computers of the judges' kids."
On May 19, 2000, Mann filed a Supplement to Petition for Writ of Mandamus and To Motion for Judicial Recusal. In this pleading, Mann stated:
"Mann wishes to make this 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 issues she presented in those appeals" (emphasis original).
On May 23, 2000, Mann filed a Clarification of Portion of Supplement to Petition for Writ of Mandamus and to Motion for Judicial Recusal. In this motion, Mann complained of federal judges casually engaging 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."
On June 28, 2000, Mann filed a Second Supplement to Petition for Writ of Mandamus and Motion for Judicial Recusal. In this pleading, Mann stated that District Judge Andersen and Circuit Judges Bauer, Ripple, and Easterbrook had "consciously contravened numerous long-recognized principles of substantive law and denied (Mann) even the most fundamental procedural due process in order to terminate this litigation." She also stated that Judge Andersen ruled as he did based on the expectation that Mann would "receive no meaningful appellate review" of his summary judgment order.
On August 25, 2000, Mann filed a Motion for Ruling on Motion for Judicial Recusal and on Petition for Writ of Mandamus. In this pleading, Mann complained that Seventh Circuit Judge Rovner had decided against Mann in a different case because Judge Rovner's son was employed by the mayor of Chicago. Mann went on to allege that Judge Rovner had "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."
The Seventh Circuit denied Mann's petition for writ of mandamus on October 13, 2000, in an opinion authored by Judge Wood, joined by Judges Kanne and Evans. The Court's opinion contains certain observations that are significant to this disciplinary proceeding.
The Court observed that the "long and bitter dispute" between Mann and the City should have ended after the Seventh Circuit affirmed the district court order for summary judgment in favor of the City on July 14, 1999 and the Supreme Court denied Mann's petition for certiorari on February 22, 2000. The Court observed that Mann had refused to accept her defeat and was back in court, "filing motion after motion in which she rehashes every issue resolved against her." The Court noted that Mann's motions had their genesis in the actions of District Judge Andersen, whom Mann accused of bias against her. Mann had filed a judicial misconduct complaint against Judge Andersen, which was dismissed because it essentially challenged the judge's ruling. The Seventh Circuit noted that a judge was not obligated to recuse him or her self simply because a litigant had filed a complaint for misconduct. The Court observed that a different rule would allow litigants to improperly manipulate the judicial system and effectively shop for judges. The Seventh Circuit went on to state that, while bias, partiality, or the appearance thereof, might formulate a legitimate basis for a motion for recusal, Mann had not offered any facts to indicate bias by Judge Andersen other than an observation he had made about the possible merits of one of her claims.
The Seventh Circuit stated that Mann's challenges to Judge Andersen's rulings had become frivolous, as were her multiple pleadings in the Seventh Circuit. The Court stated that "Mann's practice of flooding the court with frivolous motions after a suit has been concluded cannot continue" and cautioned that Mann risked sanctions if she persisted.
Undeterred, on October 30, 2000, Mann filed in the Seventh Circuit an Amended Motion for Reconsideration of Final Order and Motion Pursuant to Red. R. Civ. P. 27(c) for Consideration En Banc. In this motion, Mann alleged that Judge Rovner had ruled based on bias arising out of her son's employment by the Mayor of Chicago. Mann went on to describe the Seventh Circuit's October 13, 2000 order as "a shoot-from-the-hip advisory opinion written by a haughty judge as an ostentatious demonstration of fidelity to her impugned colleagues."
This pleading also included a quote from a pleading Mann filed in the United States Supreme Court in which she stated" "the only part of her briefs that any appellate judge read were the covers - specifically the part of the covers that said ‘appellant pro se'." She also complained that the judges of the Court of Appeals were immune from liability for their judicially related conduct, however "brazenly self-serving or outright corrupt." She concluded by asserting that the judges who issued the October 13, 2000 order viewed "their primary professional obligation as accruing not to the public and to the ideals of justice and law but to one another; thus their borderline-comical Pavlovian threats."
Exhibits to this pleading included a copy of a complaint Mann filed alleging judicial misconduct by Judge Rovner, in which Mann characterized statements in a ruling by Judge Rovner as "a flat-out lie."
The Administrator's complaint against Mann alleged that the statements were false, that Mann should have known that they were false, that Mann had no reasonable basis for believing the statements were true, and that the statements were based solely upon Mann's dissatisfaction with the judges' rulings.
Mann addressed some of the statements in her answer, although in most instances without providing specific reasons to show a reasonable belief that the statements were true.
Most of her statements were based solely on speculation. Mann's answer also contained other statements, speculating as to the internal deliberative process of the Seventh Circuit judges. Some of Mann's statements had some validity, e.g., her assertion that Judge Rovner was required to recuse herself from suits involving the City because her son worked for the City. Others, however, were purely speculative, e.g., the allegations that Judge Wood inserted certain paragraphs into her opinion at the request of Judge Easterbrook.
In December 1998, Mann filed a complaint, in federal district court, against the Clerk of the Circuit Court of Cook County, challenging the fees the Clerk's office charged to prepare an appellate court record. In August 1999, District Judge Leinenweber granted a dispositive motion in favor of the Clerk. Mann appealed to the Seventh Circuit in October 1999.
An order was entered on August 31, 2001, remanding the case to the district court. However, after setting out the procedural history and raising questions as to whether the case had been properly filed in federal court, the order concluded that Mann had unreasonably and vexatiously multiplied the proceedings and directed Mann to show cause why she should not be subject to sanctions.
This order appears to be in ordinary form and entered by a three-judge panel, Judges Easterbrook, Manion, and Kanne. Mann asserted that this order, and the other orders involved in Count II, were not entered by the Seventh Circuit, but by Judge Easterbrook and that Judge Easterbrook falsified the names of the other judges on the panel.
On September 19, 2001, after receiving Mann's response to its August 31, 2001 order, the Seventh Circuit ordered Mann to pay $5,180.00 in sanctions to the Cook County State's Attorney.
Mann did not pay the sanction. A rule was issued directing that Mann show cause why she should not be disbarred in the Seventh Circuit for failing to pay the sanction. Thereafter, a three-judge panel conducted a hearing, at which Mann appeared. During that hearing, Mann stated that, while she could not afford to pay the sanction, she was not asserting an inability to pay as a defense to her failure to comply with the sanction order. Instead, Mann challenged the order as void, alleging that it was issued solely by Judge Easterbrook, without the concurrence of the other judges named on the order.
On November 1, 2002, the Seventh Circuit issued an order disbarring Mann from practice before that Court, as a result of her failure to comply with the sanctions order. This order was entered by Judges Easterbrook, Kanne, and Williams.
Mann testified that Judge Easterbrook removed the case file from the ordinary consideration of the Court and kept it in his chambers for 18 months after briefing. This was part of the basis for the lawsuit Mann had filed in federal district court in Michigan.
James Snyder was an inmate in the Illinois Department of Corrections (DOC). In 1998, Snyder filed a lawsuit in the United States District Court for the Southern District of Illinois, alleging that the DOC had denied him access to the courts. After the district court dismissed the case, Snyder appealed to the Seventh Circuit. The Seventh Circuit affirmed the dismissal order in August 2004.
Mann's conduct in connection with the Snyder case all occurred after she had been disbarred by the Seventh Circuit.
When the Seventh Circuit affirmed the district court's dismissal of his case, Snyder was represented by lawyers from the firm of Jones, Day, Reavis, & Pogue. Mann
thereafter contacted attorney Todd Geremia of the Jones firm and encouraged him to file a petition for rehearing in the Snyder case. Subsequently, Mann sent Geremia a detailed memorandum containing her assessment of legal issues in Snyder's case and authorized Geremia to send a copy of that memorandum to Snyder.
After learning that Geremia's firm had decided not to petition for rehearing, Mann wrote to Snyder on September 8, 2004. The statement "Attorney (Illinois, currently on voluntary-inactive status)" appeared below Mann's name on this letter. With the letter, Mann sent Snyder copies of documents she considered pertinent to the Seventh Circuit's opinion in his case. Mann suggested that Snyder file a petition for writ of certiorari with the Supreme Court, making the arguments that Mann had outlined in her memo to Geremia. After recommending that Snyder seek legal assistance from certain law firms, Mann stated that, if Snyder was unsuccessful in that effort, she would be willing to assist Snyder in drafting the petition pro se.
After Snyder accepted Mann's offer of assistance, Mann filed pleadings in the Seventh Circuit on Snyder's behalf. Mann admitted that she prepared and filed a motion to recall the Seventh Circuit's mandate. Mann signed Snyder's name followed by her initials to the motion and notice of motion. The motion indicates that Mann, who described herself as a non-practicing Chicago lawyer, drafted it.
Mann also signed Snyder's name, followed by her initials, to a motion for ruling on the motion to recall the mandate and to the notice of filing that motion. Those documents were filed on October 5, 2004. In that motion, Mann described herself as a non-practicing attorney and expressed her intent to continue representing Snyder, including drafting a petition for certiorari for him, unless other counsel could be found to represent Snyder on a pro bono basis.
Mann also sought to send correspondence, dated September 1, 2004, to two of the Seventh Circuit judges concerning the Snyder matter. She sent further correspondence to Snyder, discussing her views of his matter and recommending additional action.
On July 8, 2005, the Seventh Circuit issued an order holding Mann in contempt as a result of her conduct in Snyder's case. The Court concluded that Mann had taken the initiative in contacting Snyder and had prepared, signed, and filed pleadings on his behalf with the Court. The Court directed its clerk to notify the ARDC of Mann's conduct.2
Mann testified that she did not think there was any reason why it was improper for her to have contacted Geremia and requested that he communicate her views to Snyder. In Mann's opinion, her conduct as to Snyder did not constitute the practice of law and was within the scope of what the Supreme Court has required that states must provide to prison inmates for access to the courts.
Mann challenges the Hearing Board's findings of misconduct. To the extent that those challenges are based on the sufficiency of the evidence, factual findings of the Hearing Board are not reversed unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). The Hearing Board's legal conclusions are reviewed de novo. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994).
Mann contends that the conduct at issue in Count I is protected by the First Amendment rights of access to the courts and free speech.
Attorneys do not lose their constitutional rights simply by becoming attorneys. Attorneys retain First Amendment rights and may express opinions, but must do so within ethical
boundaries. See In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959); Owen v. Carr, 113 Ill. 2d 273, 280, 497 N.E.2d 1145, 100 Ill. Dec. 783 (1986). As officers of the court, attorneys accept the imposition of certain standards of conduct, some of which impact upon First Amendment rights. In re Sarelas, 50 Ill. 2d 87, 97, 277 N.E.2d 313 (1971), cert denied, 406 U.S. 968, 92 S.Ct. 2412, 32 L.Ed.2d 666 (1972).
In analyzing the issues as to Count I, it is important to keep in mind the context in which Mann's statements and conduct occurred. The matters at issue concern Mann's conduct before a court. This fact affects the manner in which we consider Mann's statements and conduct.
The conduct at issue in Count I includes Mann's filing of frivolous pleadings. While persons, including attorneys, have the right of access to the courts, attorneys cannot be allowed to abuse the license and privilege to practice law by instituting groundless litigation or pursuing baseless issues. In re Jafree, 93 Ill. 2d 450, 457, 444 N.E.2d 143, 67 Ill. Dec. 104 (1982). Therefore, attorneys can be disciplined for filing frivolous lawsuits or making false or frivolous claims. Jafree, 93 Ill. 2d 450, 444 N.E.2d 143, 67 Ill. Dec. 104; Palmisano, 92 CH 109. Such sanctions do not violate the First Amendment. Jafree, 93 Ill. 2d at 457, 444 N.E.2d 143, 67 Ill. Dec. 104.
Essentially, after the matters in the underlying litigation had been resolved against her, Mann continued to file pleadings seeking to have the court review issues that it had already considered and resolved. Mann has demonstrated a pattern of filing frivolous pleadings or raising frivolous issues. The problem is not in raising an issue, in good faith but without success, or in seeking review of an adverse ruling by an appropriate tribunal; such conduct is appropriate advocacy and is frequently necessary to insure that issues are preserved for further review. In re
Kozel, 96 CH 50 (Review Board Dec. 30, 1999), petition for leave to file exceptions allowed, sanction modified, M.R. 16530 (June 30, 2000). That is not, however, was occurred here. Instead, Mann has repeatedly litigated issues in the same forum, after those issues had already been raised and adjudicated against her. Kozel, 96 CH 50 (Review Board) pp. 12-13.
Mann asserted, as grounds for the pleadings she filed, bias by various judges. In some isolated instances, Mann's statements may have had some legitimacy. However, in most instances, Mann did not have or articulate any real factual basis for her assertions. Therefore, her statements as a whole are not insulated from sanction.
An attorney can be disciplined for making false accusations against judges that the attorney knows are false or makes with reckless disregard for their truth or falsity. In re Kozel, 96 CH 50 (Review Board Dec. 30, 1999), petition for leave to file exceptions allowed, sanction modified, M.R. 16530 (June 30, 2000); In re Palmisano, 92 CH 109 (Review Board Feb. 17, 1994), approved and confirmed, M.R. 10116 (May 19, 1994). This is consistent with the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) standard for defamation against public officials. See Palmisano, 92 CH 109 (Review Board) pp. 4-5.
While attorneys can legitimately criticize a judge or disagree with his or her rulings, an attorney cannot unjustly impugn the character or integrity of a judge without having any basis for doing so. Kozel, 96 CH 50. While judges are not exempt from just criticism, the public interest and the administration of the law demand that the courts should have the confidence and respect of the people; therefore, attorneys cannot engage in baseless and unjust criticism, insulting language and offensive conduct toward judges. People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1919).
Significantly, the accusations about which the Administrator introduced evidence occurred in the context of pleadings filed in court. This is not a situation involving purely political speech, as Mann seeks to suggest. An attorney acting in the capacity of an officer of the court cannot make scurrilous charges against judges. In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13 (1973). Orderly conduct of legal proceedings and public confidence in those proceedings require that attorneys not make false and baseless accusations against the integrity of judges. Palmisano, 92 CH 109 (Review Board) pp. 5-7. Where those statements are made with the requisite mental state, see e.g., Rules 3.3(a)(1) and 8.2(a), an attorney can be disciplined for those statements.
The Hearing Board majority found that Mann made her statements with the requisite intent. State of mind is an issue of fact, within the province of the Hearing Board. In re Ingersoll, 186 Ill. 2d 163, 168-69, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999); Palmisano, 92 CH 109 (Review Board) p. 3.3
The circumstances as a whole support the Hearing Board majority's finding.
Circumstantial evidence can be considered in proving state of mind, and the record as a whole can be used in assessing a respondent's good faith, or lack thereof. Jafree, 93 Ill. 2d at 458, 444 N.E.2d 143, 67 Ill. Dec. 104. An inference of a lack of good faith can be drawn where it appears that a respondent's statements are made in retaliation for rulings adverse to the respondent or where there is a pattern of such statements. See Palmisano, 92 CH 109 (Review Board) pp. 1-2. Both are clearly present here. The point here is not whether any isolated individual statement is or is not protected by the First Amendment, but whether Mann has demonstrated a pattern of making false accusations against members of the judiciary without any legitimate basis for doing so. The evidence demonstrates such a pattern, even if certain
statements might, in and of themselves, constitute matters of opinion or hyperbole that would not, if considered on their own, warrant discipline.
The Hearing Board's findings of misconduct as to Count I are affirmed.
Count II involves Mann's failure to comply with the sanction order issued against her by the Seventh Circuit. The Hearing Board found that Mann failed to comply with a sanction order of the Seventh Circuit and, consequently, that the Administrator proved that Mann violated Rule 8.4(a)(5) and Supreme Court Rule 770. We affirm.
Mann challenges the Hearing Board's findings of misconduct on Count II on the grounds that the Seventh Circuit's sanction order was void, as issued by Judge Easterbrook acting alone and as addressing matters not properly before the Seventh Circuit.
Even aside from the fact that this Board does not have the authority to go behind facially valid, court-imposed sanction orders, see generally Supreme Court Rule 753(d) (210 Ill. 2d R. 753(d)), Mann's arguments lack merit.
The matters addressed by the sanction order were properly before the Seventh Circuit. The Court has authority to impose sanctions, including monetary damages and costs, for presentation of a frivolous appeal. Fed. R. App. P. 38.
Mann's argument that the sanction order was issued by only one judge, rather than by all three judges, is based solely on unsupported speculation. To the extent that there were any real issues as to the validity of the order, the Hearing Board resolved those issues against Mann, by concluding that the order was valid.
As Mann did not comply with the sanction order, and did not offer evidence of a valid reason for not doing so, the Hearing Board's findings of misconduct on Count II are affirmed.
As to Count III, Mann seeks to persuade the Review Board that her conduct in relation to Snyder's case was legitimate based on United States Supreme Court cases that allow prison inmates the right of access to the courts and require prison officials to enable such access by providing prisoners with adequate law libraries or assistance from persons with legal training. See e.g., Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
However, Mann is an attorney who was disbarred by the Court before which she sought to assist Snyder. Cases such as Lewis do not, and do not purport to, define or limit the right of courts to disbar attorneys from practicing before them and thereby regulate who may assist inmates, by acting on their behalf in court.
The practice of law includes the giving of any advice or the rendering of any service requiring the use of legal knowledge. In re Howard, 188 Ill. 2d 423, 438, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999). Whether or not certain conduct constitutes the practice of law depends on the character of the acts at issue. In re Discipio, 163 Ill. 2d 515, 523, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994).
Mann's conduct as to Snyder occurred after the Seventh Circuit had entered an order, precluding Mann from practicing before that court. There is no basis to go behind the facially valid court order disbarring Mann. While Mann has argued that this and other Seventh Circuit orders were orchestrated by Judge Easterbrook, she does not offer anything other than speculation to support that claim. Further, the evidence clearly demonstrates that the order disbarring Mann was entered after argument before a three-judge panel of the Seventh Circuit.
Mann's conduct clearly constituted the practice of law. After being disbarred from practicing before the Court, Mann thrust herself into proceedings before that court by making unsolicited suggestions as to how the then-represented inmate's matter should be
handled. After prior counsel decided not to take further action, this disbarred attorney made recommendations to the inmate as to specific courses of action, and prepared, signed, and filed pleadings on his behalf in the Court from which she had been disbarred from practicing. Her actions clearly constitute the practice of law.
In relation to the charge that Mann violated Rule 8.4(a)(4) as to Count III, the Hearing Board concluded, as a factual matter, that Mann did not disclose to Geremia or Snyder that she was not authorized to practice law in the Seventh Circuit. While Mann testified to the contrary, resolution of this issue was a factual matter, within the province of the Hearing Board as trier of fact.
The Hearing Board also found that Mann engaged in dishonest conduct by signing Snyder's name to pleadings, thereby representing that he was the author of those pleadings. The Hearing Board considered Mann's statements in the pleadings that she was a non-practicing attorney as insufficient to alter those conclusions. This is also a factual issue, within the province of the Hearing Board.
The Hearing Board's findings of misconduct as to Count III are affirmed.
Mann argues that the passage of time prejudiced her. There is no statute of limitations in disciplinary actions. In re Ettinger, 128 Ill. 2d 351, 367, 538 N.E.2d 1152, 131 Ill. Dec. 596 (1989). In order to bar disciplinary proceedings due to delay in bringing the proceedings, the respondent must show a resulting prejudice to his or her ability to present an effective defense. Ettinger, 128 Ill. 2d at 367, 538 N.E.2d 1152, 131 Ill. Dec. 596. Mann has not made such a showing here.
Mann objects that some of the rules that she is charged with having violated are overly broad and vague, thus failing to provide adequate notice of the type of conduct that is
prohibited and allowing for selective prosecution, of which Mann argues that she is a victim. However, the Administrator has the authority to determine which cases to prosecute. Jafree, 93 Ill. 2d at 456, 444 N.E.2d 143, 67 Ill. Dec. 104; In re Mitan, 75 Ill. 2d 118, 123, 387 N.E.2d 278, 25 Ill. Dec. 662 (1979), cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 171 (1979). The fact that the Administrator exercised that authority and chose to prosecute Mann does not violate her constitutional rights. See In re Damisch, 38 Ill. 2d 195, 205, 230 N.E.2d 254 (1967).
In relation to Mann's vagueness challenge, a rule that is so vague as to fail to give clear notice of the conduct that is proscribed may violate constitutional due process guarantees. See generally Jafree, 93 Ill. 2d at 457, 444 N.E.2d 143, 67 Ill. Dec. 104. However, imposing sanctions for filing frivolous pleadings or lawsuits does not violate due process protections. Jafree, 93 Ill. 2d at 457, 444 N.E.2d 143, 67 Ill. Dec. 104. Further, that the fact that attorney disciplinary rules are aimed at persons trained in the law is considered in assessing any challenge that such rules are vague; thus, consideration is given to whether or not a reasonable attorney would understand the conduct at issue to be prohibited. See In re Rinella, 93 CH 378 (Review Board April 10, 1996), approved in part, rejected in part on other grounds, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997). Conduct does not need to be explicitly prohibited to be sanctionable. In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997). The rules at issue here are sufficiently clear to encompass Mann's conduct.
In relation to sanction, we agree with the Hearing Board that a suspension for two years and until further order of the Court (UFO) is warranted.
Mann engaged in serious misconduct. Other respondents who have made false accusations against judges or repeatedly filed frivolous pleadings have been disbarred. E.g., In re Jafree, 93 Ill. 2d 450, 444 N.E.2d 143, 67 Ill. Dec. 104 (1982); In re Kozel, 96 CH 50 (Review
Board Dec. 30, 1999), petition for leave to file exceptions allowed, discipline modified, M.R. 16530 (June 30, 2000); In re Palmisano, 92 CH 109 (Review Board Feb. 17, 1994), approved and confirmed, M.R. 10116 (May 19, 1994); see also People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 125 N.E. 734 (1919). In other cases involving similar misconduct, the respondents have been suspended for two years and UFO. E.g., In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13 (1973); In re Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971), cert. denied, 406 U.S. 968, 92 S.Ct. 2412, 32 L.Ed.2d 666 (1972); see also In re Bredemann, 05 CH 102 (Review Board Oct. 10, 2008), petition for leave to file exceptions allowed, M.R. 22793 (Jan. 20, 2009).
We view the cases in which the respondents have been disbarred as involving more flagrant conduct and more vituperative statements. However, Mann's misconduct as a whole is quite serious and warrants a two-year suspension, such as that imposed in Phelps, Sarelas, and Bredemann, and as recommended by the Hearing Board.4
Mann needlessly protracted litigation by filing frivolous pleadings and making baseless accusations against the integrity of judges involved in her matters. She defied a court-imposed sanction order, entered following a hearing. Even though she knew that she could not practice before the Seventh Circuit, Mann sought out a person with a case pending in that Court, offered him her advice, and prepared, signed, and filed pleadings before the Court.
We also agree that Mann's suspension should continue until further order of the Court (UFO).
Such an additional provision is appropriate where there is serious doubt whether the respondent truly understands the seriousness of his or her misconduct or the circumstances as a whole suggest that the respondent is unwilling or unable to conform to ethical standards. See In re Houdek, 113 Ill. 2d 323, 326-27, 497 N.E.2d 1169, 100 Ill. Dec. 807 (1986); In re Vickers,
No. 00 SH 77 (Review Board Aug. 6, 2002), approved and confirmed, No. M.R. 18384 (Nov. 26, 2002). A UFO can also be warranted where an attorney demonstrates that he or she does not understand what is required of a suspended attorney. See In re Mays, No. 01 SH 80 (Review Board May 28, 2003), petition for leave to file exceptions allowed, suspension modified, No. M.R. 18853 (Sept. 25, 2003).
Mann's behavior overall demonstrates that she did not understand the nature of the proceedings against her in the Seventh Circuit or what was required of her once those proceedings had concluded and she was disbarred by that Court. She did not comply with the Court's sanction order, requiring her to pay damages to opposing counsel, nor seek to raise any valid defense to that order. Instead, she simply did not comply with the order. After Mann was disbarred, rather than stopping her activities before the Seventh Circuit, she sought out a case pending before that Court and interjected herself into it. This is not the type of behavior that inspires confidence that Mann will conform her future conduct to disciplinary rules.
The record also clearly demonstrates that Mann has repeatedly raised frivolous claims and repeatedly made baseless accusations against others who cross her path, particularly judges who have decided issues against her. Her conduct in that regard is similar to that of the respondent in Sarelas, who was suspended UFO.
Mann's conduct during the disciplinary proceedings reinforces our view that a UFO is necessary, so that Mann will be required to demonstrate her fitness to resume practicing law before she is simply allowed to do so. Like the evidence of the charged misconduct, the record of the disciplinary proceedings demonstrates a pattern by Mann of raising various frivolous issues and continuing to seek to litigate issues after their ordinary conclusion. This
behavior by Mann significantly, and needlessly, protracted the proceedings before the Hearing Board.
Mann filed multiple pleadings before the Hearing Board, alleging bias by the panel chairman. Nothing in the record supports any allegations of bias. Mann stated an intent to sue various people involved in the disciplinary proceedings. She reiterated threats to bring litigation during oral argument before the Review Board. Such statements were consistent with Mann's overall behavior, but certainly do not inspire confidence that this respondent understands the nature of the proceedings or her ethical obligations. Given all the circumstances of this case, a UFO is warranted here.
For the foregoing reasons, we affirm the findings of misconduct of the Hearing Board majority as to Count I, the Hearing Board's findings of misconduct as to Counts II and III, and the Hearing Board's recommendation of a suspension for two years and UFO.
Date Entered: 29 March 2010
1 The complaint included allegations that Mann made disparaging remarks about judge in correspondence with opposing counsel and others. However, the Administrator did not present evidence of statements other than those in pleadings. Our consideration of the case is limited to the evidence presented at hearing.
2 The Administrator's office had previously contacted Mann about the sanctions order and the statements that were the subject of Count I. The Administrator's office decided not to proceed with charges based on those matters, but resurrected them after receiving the Seventh Circuit's order in relation to the Snyder matter.
3 Mann claims that the Administrator changed the theory of the prosecution during the proceedings before the Hearing Board. However, the complaint charged that Mann knew or
reasonably should have known that her statements were false. There was no change in the theory of prosecution.
4 We are also mindful that the Administrator seeks to have us uphold the Hearing Board's sanction recommendation and does not seek a harsher sanction.
5 Before his recent death, panel member John W. Rapp, Jr. read the briefs, listened to the recording of the oral argument, participated in the deliberations, and agreed with the other panel members as to the recommended disposition.