Filed April 21, 2009
In re Anna Marie Wolf
Commission No. 07 CH 49
Synopsis of Review Board Report and Recommendation
Wolf was charged with engaging in conduct involving fraud, dishonesty, deceit or misrepresentation and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The charges were based on information that Wolf gave to her supervisor at the legal aid agency where Wolf was employed. The supervisor used the information in preparing applications for grants to the agency. Wolf's answer admitted some of the critical facts alleged in the complaint, but denied misconduct.
After hearing the Administrator's evidence, which included testimony from Wolf, the Hearing Board granted Wolf's motion for judgment at the close of the Administrator's case. The Hearing Board recommended that the charges be dismissed.
The case was before the Review Board on the Administrator's exceptions. The Administrator argued that the Hearing Board erred in entering judgment for Wolf at the close of the Administrator's case. The Administrator contended that the case should be remanded, to allow Wolf to present evidence and for determination of the proper quantum of discipline.
The Review Board concluded that the facts that Wolf had admitted, particularly the judicial admissions in her answer, demonstrated that Wolf had engaged in the misconduct charged. Consequently, the Review Board determined that the Hearing Board had erred in entering judgment for Wolf at the close of the Administrator's case.
However, the Review Board declined to recommend a remand, finding that no useful purpose would be served by a remand. The Review Board observed that, regardless of any additional evidence she might present, Wolf would be bound by her judicial admissions, so remand would not provide Wolf with an opportunity to avoid a finding of misconduct. The Review Board also observed that, based on the evidence presented, the case did not warrant discipline harsher than a reprimand. Therefore, the Review Board recommended that Wolf be reprimanded.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANNA MARIE WOLF,
Commission No. 07 CH 49
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant charged Respondent-Appellee, Anna Marie Wolf, with misconduct based on information Wolf gave to her supervisor at the legal aid agency where Wolf was employed. The supervisor used the information in preparing applications for grants to the agency. The Administrator's one-count complaint charged that Wolf engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (210 Ill. 2d R. 8.4(a)(4)) 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 (210 Ill. 2d R. 770). Wolf's answer admitted some of the facts alleged in the complaint, but denied misconduct.
The Hearing Board granted Wolf's motion for judgment at the close of the Administrator's case and recommended that the charges be dismissed.
The case is before the Review Board on the Administrator's exceptions. The Administrator contends that the Hearing Board erred in entering judgment in favor of Wolf and seeks a remand for presentation of evidence from Wolf. Wolf seeks to have the Review Board uphold the Hearing Board's recommendation.
At the start of the hearing, each party introduced exhibits, by agreement. Wolf's testimony was the only other evidence the Administrator introduced.
Wolf was licensed to practice law in 2000. Wolf worked at a general practice law firm for about five years before going to work for Pro Bono Center for Disability and Elder Law (CDEL) in January 2006. She has no prior discipline.
CDEL provides legal services to low-income disabled and elderly persons in Cook County. CDEL has a small staff with numerous volunteers. CDEL is funded through grants, private donations, and government contracts.
CDEL's long-term Executive Director, Jann Dragovich-Stulberg, hired Wolf to work for CDEL as its chief legal officer. Stulberg, who is not an attorney, was Wolf's direct supervisor. Wolf had gone to law school with the goal of helping others and was very excited to be working for an organization that helped seniors and people with disabilities.
As chief legal officer, Wolf's duties involved ascertaining that cases went through the proper intake process and were properly referred, being sure that the pro bono coordinators were "on top of" the cases, answering questions from clients or from attorneys or paralegals handling cases for CDEL, and dealing with any emergency matters for clients.
About a year after Wolf began working for CDEL, Stulberg informed her that Wolf was getting the additional title of grant manager. Wolf had not previously been involved in the grant application process at CDEL and had no prior experience in preparing grant applications.
Stulberg told Wolf to go through all of the grants for which CDEL had applied in previous years, diary their due dates, and notify Stulberg about two weeks in advance so that
Stulberg could begin working on the grant applications. Wolf was not given any specific instruction or training as to how to prepare a grant proposal.
The first major grant application in which Wolf was involved was a grant by the Chicago Bar Foundation, which was due roughly two weeks after Wolf was assigned the grant manager function. CDEL had received prior grants from the Chicago Bar Foundation. Wolf notified Stulberg of the due date. About one week before the grant application was due, Stulberg told Wolf to prepare the Client Data Sheet form that was to be submitted with this application, and Wolf began work on that document. Wolf understood that she was preparing the Client Data Sheet for Stulberg's review and that, if approved by Stulberg, the sheet would be submitted as part of CDEL's grant proposals.
Among other things, the Client Data Sheet form asked for the number of cases CDEL had handled based on various legal issues and levels of service. Wolf did not have specific instructions as to how to prepare the form or what criteria should be used in preparing it. She assumed that she should omit duplicated clients, in other words, not count a single person more than once, even if CDEL was dealing with multiple legal issues for that person. Wolf had been told to exclude duplicated clients in connection with one of CDEL's government contracts.
CDEL had an older database system, which duplicated clients in certain categories. Wolf printed out CDEL's case management form for the 2006 fiscal year, went through the information it provided by hand, and crossed out entries she deemed to be duplicated clients. As there was not a single source that provided all of the client or case information, Wolf reviewed many documents to complete the Client Data Sheet form.
Based on her inquiry, Wolf estimated that CDEL opened 1,734 new cases during 2006. As Wolf knew that CDEL typically reported serving over 3,000 clients annually, she
reviewed the grant application for 2005. That document indicated that CDEL had served 3,717 clients; this was the total number of cases for all levels of service.
Given the discrepancy, Wolf spoke with Stulberg. Wolf testified that, without asking Wolf how she came up with the 1,734, Stulberg told Wolf that CDEL could not show a number that low. Stulberg stated that CDEL was "under a microscope" and that using that number would "raise red flags."1 Wolf testified that Stulberg suggested that the numbers were not material to the grantor's consideration and that Stulberg told Wolf that no other legal aid organizations used accurate numbers in stating their cases served.
Wolf testified that, while not directly telling her to fabricate numbers, Stulberg told Wolf to "do whatever (she) had to do to not show such a huge discrepancy." Stulberg did not give Wolf any direction as to how to go about doing this. There was no one else at CDEL who had worked on Client Data Sheets in the past and Wolf did not receive any explanation as to how the numbers used in the past had been calculated.
Wolf understood that Stulberg did not want to be interrogated by the grantors about a large discrepancy in the numbers; Wolf did not understand that the numbers themselves were significant in determining whether or not CDEL would receive the grant. Wolf relied on Stulberg's experience and assumed that the number of cases was not a material issue. Wolf also assumed that Stulberg, who was a long-time friend of Wolf's family, would not put Wolf in a position of doing something that was not right.
After the conversation with Stulberg, Wolf took the 1,734 new cases and broke them down by case categories, indicating certain numbers for different case categories, such as bankruptcy or housing matters. Wolf reviewed the 2005 numbers and extrapolated figures based on the prior year's grant application, to "get the numbers close" to the 3,000 annual average
cases shown in prior years. Wolf assumed that the people who calculated the numbers in the past knew what they were doing and that there had not been a significant change from 2005 to 2006. Wolf also relied on her own knowledge of the legal services provided during the preceding year. Based on this process, Wolf came up with 3,241 as the total number of cases under all levels of service for 2006.
Wolf presented this information to Stulberg. After reviewing the information, Stulberg included it in the grant proposal to the Chicago Bar Foundation. Stulberg signed the grant proposal.
In February 2007, CDEL submitted a grant proposal to the Lawyer's Trust Fund (IOLTA). The IOLTA application required the same form, and Wolf e-mailed it to Stulberg, who included it in the IOLTA grant application. Stulberg also signed this grant proposal.
Wolf's answer stated that, based on the information available to her, Wolf believed that CDEL did not service 3,241 clients in 2006 and that her representation as to the total cases on the client data form was not accurate. Although she had not been advised as to what criteria should be used for determining the total cases, using the criteria, information, and means available to her, Wolf had estimated that CDEL opened 1,734 new cases during 2006. Wolf did not know the actual number that should have been used on the form.
Wolf testified that she did not know whether the final number she submitted to Stulberg was or was not accurate. She testified that, when she began working on the form, she was focused on the idea that the number had to be new cases. Wolf began to question that assumption after meeting with a CDEL board member, who suggested looking at other things and after Wolf herself considered the fact that CDEL's case management system permitted potential inaccuracies. The system included cases that should not have been shown as open and
did not show cases that should have been reported. Wolf testified that she did not know whether there was a way to accurately count the cases. However, Wolf acknowledged that, when she prepared the final number for Stulberg, she did not believe it was accurate.
On March 23, 2007, IOLTA sent an inquiry to Stulberg, raising several questions about the grant application. One question concerned a drop in the reported number of administrative hearings, from 657 in 2005 to 52 in 2006. Wolf had reported 52 administrative hearings for 2006, based on Wolf's knowledge of the cases CDEL had handled during 2006.
Wolf and Stulberg participated in a three-way telephone conversation with an IOLTA representative to respond to IOLTA's inquiries. During that conversation, IOLTA requested additional information concerning the administrative hearings reported. Given that conversation and the IOLTA representative's follow-up e-mail, Wolf determined that the number of cases handled really was material in the grant proposal process. Wolf also became concerned because Stulberg told the IOLTA representative that she had nothing to do with the reported numbers and that the numbers were solely Wolf's responsibility.
Stulberg told Wolf to provide the information IOLTA had requested. Wolf declined to do so, as she did not believe that she could provide accurate information in response to IOLTA's questions.
Wolf then contacted CDEL board member Dan Harper. On March 29, 2007, Wolf told Harper that she could not follow Stulberg's direction to respond to IOLTA, because to do so would be to "further perpetuate this ‘inventive' case reporting."
Wolf and Harper met. He suggested that she review additional documentation, and she did so. According to Wolf's testimony, after speaking with Stulberg, Harper told Wolf that Wolf was responsible for the situation and indicated that he might have to contact the
ARDC. Harper threatened harm to Wolf's reputation if she took further action and told Wolf to complete the report as Stulberg had requested.
Wolf reviewed some of the documentation that Harper had suggested. Wolf's investigation, however, caused her to have further misgivings and to further doubt the accuracy of CDEL's record keeping system. Wolf concluded that it was not possible to accurately determine the numbers at issue and, consequently, decided that she would not prepare the report.
On April 4, 2007, Wolf reported herself to the ARDC. Wolf's report to the ARDC stated, inter alia, that the numbers submitted in the two grant proposals "while rooted in actual cases were not accurate." In the report, Wolf also admitted that she submitted numbers to Stulberg that she knew were not accurate and that Wolf recognized that what she did was wrong.
Wolf testified that she reported herself to the ARDC because she was frightened about being in an organization in which things had transpired that she believed were ethically wrong. She was seeking guidance and protection from the ARDC. Wolf also wanted to present the situation to the ARDC herself, before Stulberg or Harper did so, as she thought they would not present a truthful version of the situation. Wolf also felt that she had an ethical obligation to report the situation as a whole to the ARDC.
About the same time, Wolf also contacted the Chicago Bar Foundation and the Illinois Lawyers Trust Fund, i.e. IOLTA. She met with representatives of each organization on April 9, 2007 and informed them that she did not believe that CDEL's reporting practices were accurate or that the grant applications submitted were accurate.
Wolf prepared, and on April 10, 2007 submitted, a letter of resignation to the CDEL Board. This letter indicated, inter alia, that the client statistics number that Wolf calculated and reported for 2006 was not accurate and that the total number of clients served was
well below the number she had reported. Wolf acknowledged that she was wrong to have recalculated the numbers.
In June 2007, the American Bar Association (ABA) Center for Pro Bono performed a "peer consulting visit." About this time, Stulberg resigned. The Center's report noted problems in CDEL's past record keeping practices and apparent inaccuracies in case reporting. The report estimated that CDEL served 1,400 to 1,800 clients in 2007.
After the Administrator rested his case, Wolf's attorneys moved for a directed finding. The Hearing Board granted the motion, following argument by both sides.
As an initial matter, the Administrator seeks to strike the statement of facts in Wolf's brief, alleging that it contains improper conclusions and comments.
A statement of facts is to contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment. ARDC Rule 302(f)(4) (Dis. Com. R. 302(f)(4)). The Rules pertaining to the form and content of briefs are not to be ignored. See In re Morton, No. 98 CH 24 (Review Board October 30, 2000), approved and confirmed, No. M.R. 17272 (March 22, 2001); In re Rheinstrom, No. 93 CH 449 (Review Board Sept. 8, 1995), approved and confirmed, No. M.R. 11765 (Jan. 23, 1996).
The Review Board may strike non-conforming briefs, or portions thereof. ARDC Rule 302(i) (Dis. Com. R. 302(i)). This authority, however, is used sparingly. See generally In re Wilson, No. 95 CH 191 (Review Board Dec. 13, 1996), approved and confirmed, No. M.R. 13344 (March 21, 1997). The statement of facts in Wolf's brief does not so clearly violate Rule 302(f)(4) to warrant striking it. However, we have considered this case based on an independent review of the record.
The Administrator argues that the Hearing Board erred in granting Wolf's motion for judgment at the close of the Administrator's case.
The same principles that govern a defendant's motion for judgment at the close of the plaintiff's case in a civil bench trial apply to disciplinary cases. In re Doyle, 144 Ill. 2d 451, 470, 581 N.E.2d 669, 163 Ill. Dec. 515 (1991); see In re Gearhart, No. 00 SH 82 (Review Board Jan. 30, 2003), petition for leave to file exceptions denied, No. M.R. 18731 (Sept. 19, 2003). Specifically, the court first must consider whether the plaintiff has presented a prima facie case, i.e., whether the plaintiff has presented some evidence relating to each of the essential elements of the cause of action. Heller v. Jonathan Investments, Inc., 113 Ill. 2d 60, 495 N.E.2d 589, 593-94, 99 Ill. Dec. 142 (1986); Kokinis v. Kotrich, 81 Ill. 2d 151, 155, 407 N.E.2d 43, 40 Ill. Dec. 812 (1980). If the plaintiff has not established a prima facie case, the defendant is entitled to judgment as a matter of law. Heller, 113 Ill. 2d 60, 495 N.E.2d at 593, 99 Ill. Dec. 142; Kokinis, 81 Ill. 2d at 154-55, 407 N.E.2d 43, 40 Ill. Dec. 812. If the plaintiff has established a prima facie case, then the court weighs the quality of the evidence. Heller, 113 Ill. 2d 60, 495 N.E.2d at 593, 99 Ill. Dec. 142; Kokinis, 81 Ill. 2d at 155, 407 N.E.2d 43, 40 Ill. Dec. 812. Judgment should be entered for the defendant only if, after the weighing process, the court determines that the evidence is not sufficient to meet the plaintiff's burden of proof. See Heller, 113 Ill. 2d 60, 495 N.E.2d at 593-94, 99 Ill. Dec. 142.
Assuming that this process has occurred, as it did here, a Hearing Board decision granting a respondent's motion for a directed finding should not be reversed unless it is contrary to the manifest weight of the evidence. Doyle, 144 Ill. 2d at 470, 581 N.E.2d 669, 163 Ill. Dec. 515; see Gearhart, No. 00 SH 82, opinion p. 2. A decision is against the manifest weight of the evidence if the opposite conclusion is clearly evident. In re Winthrop, 219 Ill. 2d 526, 542, 848
N.E.2d 961, 302 Ill. Dec. 397 (2006). However, Hearing Board decisions on legal issues, including whether certain conduct constitutes a violation of the disciplinary rules, are reviewed de novo. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994).
The Administrator contends that Wolf made admissions that should have bound her and precluded the Hearing Board from entering judgment in her favor. The Administrator relies on Wolf's answer, as well as various other statements in which Wolf admitted that the number used in the grant proposals was inaccurate.
In her answer, Wolf admitted that, based on her initial investigation, she estimated that CDEL opened 1,734 cases in 2006. She admitted discussing this number with Stulberg, in light of the significantly higher number shown for 2005. Wolf admitted that, after that discussion, she prepared the client data form that showed 3,241 cases for 2006 and presented the form to Stulberg. Wolf's answer further admitted that she believed that CDEL did not service 3,241 clients in 2006 and that she accepted that her representation on the client data form was inaccurate. Wolf also admitted that the client data form that she prepared was included in the grant proposals to the Chicago Bar Foundation and IOLTA.
These statements are judicial admissions. Cleary & Graham, Handbook of Illinois Evidence, §802.11 (9th ed. 2009). Wolf is bound by the facts that are the subject of a judicial admission and cannot, by presenting contrary evidence, avoid the effect of the judicial admission. In re Estate of Rennick, 181 Ill. 2d 395, 692 N.E.2d 1150, 1156, 229 Ill. Dec. 939 (1998); In re Bulger, No. 02 CH 40 (Review Board May 3, 2004), approved and confirmed, No. M.R. 19550 (Sept. 27, 2004).2 A judicial admission dispenses with the need for the other side to produce evidence, because the judicial admission concedes, for purposes of the litigation, that a
specific proposition of fact is true. Giamanco v. Giamanco, 111 Ill. App. 3d 1017, 444 N.E.2d 1090, 1093, 67 Ill. Dec. 606 (5th Dist. 1982).
Wolf's testimony and other statements are evidentiary admissions. Rennick, 181 Ill. 2d 395, 692 N.E.2d at 1156, 229 Ill. Dec. 939. While evidentiary admissions may be contradicted, Rennick, 181 Ill. 2d 395, 692 N.E.2d at 1156, 229 Ill. Dec. 939, they are part of the evidence to be considered. Wolf's evidentiary admissions provide a context for her behavior. However, they do not really conflict with the admissions in Wolf's answer that she provided information that she did not believe to be accurate, to be used as part of a grant application.
Given these circumstances, particularly the admissions in Wolf's answer, the Hearing Board erred as a matter of law in granting Wolf's motion for judgment at the close of the Administrator's case. Under Rule 8.4(a)(4), a lawyer shall not engage in conduct involving fraud, dishonesty, deceit, or misrepresentation. Wolf admitted that the numbers she provided to Stulberg were not accurate and that Wolf knew they were not accurate. The admitted facts demonstrate a violation of Rule 8.4(a)(4). Therefore, the Hearing Board erred in entering judgment in Wolf's favor at the close of the Administrator's case.
However, the Administrator's case showed that, while there was a violation of Rule 8.4(a)(4), given all the circumstances, it was a relatively minor one. Wolf did not act with an intent to deceive the organizations from which the grants were sought. She relied on Stulberg's representation that the numbers did not really matter. Once she learned that the information she provided was material, Wolf acted promptly to correct the error. She admitted her wrongdoing and is clearly contrite. Wolf's disclosures ultimately benefited CDEL and paved the way for greater accuracy in its recordkeeping. While there was potential for harm, Wolf's actions do not appear to have actually caused any harm. While CDEL withdrew the grant
proposals it had submitted based on Wolf's numbers, thereby losing that funding for the year, the extent to which this was caused by Wolf's conduct, as opposed to the conduct of others, is uncertain.
The Administrator seeks a remand. However, even if Wolf presented a case to the Hearing Board, she would be bound by her judicial admission, which established a violation of Rule 8.4(a)(4).3 Based on the Administrator's case alone, the evidence does not warrant any greater sanction than a reprimand. Given this fact, a remand to the Hearing Board so that Wolf could present a case would not serve any useful purpose. Consequently, we decline to remand.
For these reasons, we reverse the Hearing Board's findings that the Administrator did not prove the misconduct charged. We recommend that the Court reprimand Respondent-Appellee, Anna Marie Wolf.
Date Entered: 21 April 2009
1 Stulberg's comment was prompted by the fact that, unbeknownst to Wolf at the time, a CDEL employee was accused of embezzling approximately $150,000 from CDEL. That person was on leave when Wolf was preparing the form; her employment was terminated shortly thereafter.
2 Unlike In re Tankus, No. 96 CH 239 (Review Board Nov. 30, 1998), approved and confirmed, No. M.R. 15557 (March 23, 1999) and In re Runkle, No. 00 CH 64 (Hearing Board Dec. 7, 2001), approved and confirmed, No. M.R. 17958 (March 22, 2002), this is not a situation in which the Administrator's evidence truly contradicts the admitted facts or the evidence concerning the elements of the Administrator's cause of action.
3 The admitted facts also describe conduct that would violate Supreme Court Rule 770.