Filed June 2, 2009
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
CHRISTIAN LAWRENCE KLINE,
Commission No. 07 CH 107
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 22, October 29 and December 29, 2008, before a panel consisting of Champ W. Davis, Jr., Chair; Donna L. Moore and Joseph J. Calvanico. Gina M. Abbatemarco appeared as Counsel for the Administrator. Thomas P. Sukowicz and Thomas P. McGarry appeared as Counsel for Respondent. Respondent was also present.
On October 19, 2007, the Administrator filed a one count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged Respondent engaged in dishonest conduct by submitting false time sheets to a legal services temporary agency. Respondent filed an Answer to the Complaint on January 15, 2008, in which he admitted some of the factual allegations, denied some of the factual allegations, and denied all the allegations of misconduct.
The Administrator presented the testimony of Tara Thompson, Elizabeth Brasser, Rosaria V. Owen, Anna Lambros, Jennifer Yu, and Robert Naumann, and Exhibits 2-6. Respondent
presented his testimony and the testimony of Michael J. Vollinger, Ajay Baddi, Edmund Butler, and Francesco Penati and Exhibits 1-5. The testimony of the witnesses, the Exhibits, and the admitted allegations of the Complaint established the following facts.
In December 2005, Respondent signed an agreement with Ajilon Legal ("Ajilon"), a legal services temporary agency, to perform legal services on a temporary basis for Ajilon's client, the law firm of Mayer, Brown, Rowe & Maw ("Mayer Brown"). Respondent and Ajilon agreed that Respondent would be paid $35 per hour for his work and that Respondent would submit weekly time sheets to Ajilon reporting the hours he worked each day. On December 12, 2005, Respondent began a month-long document review project at Mayer Brown.
Between December 13, 2005 and December 31, 2005, Respondent submitted written time sheets to Ajilon representing the number of hours he worked during that time on the Mayer Brown project. On those sheets, Respondent represented that he worked 10 hours each day on December 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, and 30, 2005, and five hours on December 26, 2005, for a total of 135 hours. (Adm. Ex. 2). Respondent expected that Ajilon would base his compensation on the amount of time he submitted on his time sheets and that Ajilon would charge Mayer Brown for his services based on those written time sheets.
Ms. Thompson was an associate in the litigation group at Mayer Brown. (Tr. 86). In December 2005 Ms. Thompson and Rosaria Owen, another attorney at Mayer Brown, oversaw the work of at least four contract attorneys from Ajilon, including Respondent, on a document review project. (Tr. 86-7, 125, 129). The project entailed the review of a number of documents Mayer Brown had received from its clients that were scanned into a document review system and
needed to be reviewed for production in a case and for Mayer Brown's use of the documents in the litigation. (Tr. 86-7). In addition to overseeing the contract attorneys Ms. Thompson also reviewed the documents on the system. (Tr. 87).
The documents included insurance policies, internal memoranda from the company, general business documents and correspondence. (Tr. 89-90). Most of the documents were two to three pages long, but some of the insurance policies were approximately 20 pages long. (Tr. 90). The document review system Mayer Brown used was called Case Data and was a standard computer program used for online document review. (Tr. 160). The program was web based and easy to use. (Tr. 165). Case Data is owned by Case Data Company and is not an entity of Mayer Brown. (Tr. 164).
The contract attorneys had an introductory meeting during which Ms. Thompson explained how to do the document review. (Tr. 96). Case Data Company also had a conference call or "webinar" with the contract attorneys to explain how to use the system. (Tr. 96). Ms. Thompson was not aware of any other meetings the contract attorneys were required to attend. (Tr. 99-100). Ms. Thompson occasionally stopped by the offices where the contract attorneys were working to answer their questions for five to ten minutes, but did not consider those formal meetings. (Tr. 99). Ms. Thompson testified that the contract attorneys, including Respondent, were in attorney offices and not cubicles. (Tr. 123-4).
The contract attorneys were given a five to ten page guide for using Case Data and for understanding the issues in the case that Ms. Thompson prepared. (Tr. 89). Ms. Thompson did not give the contract attorneys any other written materials that they were supposed to utilize in their work and she did not remember whether someone else gave them additional written materials. (Tr. 89, 97).
The only thing that was necessary for the contract attorneys to do was to review the documents on the system and they were specifically told they needed to work on the project at the firm and not from home. (Tr. 97-8). Ms. Thompson instructed the contract attorneys to look at each document, get a sense of what the document was, review it and use the buttons to mark which codes applied to the document. (Tr. 87-8, 90-1). The contract attorneys were told to code the documents for general production issues such as responsive, non responsive and privileged and for issues related to certain concepts in the case. (Tr. 88).
Ms. Thompson and a paralegal created and marked sets of documents in the document review system and Ms. Thompson assigned these batches of documents to the contract attorneys to review. (Tr. 91-2). Ms. Thompson did not recall how many documents were in each batch, but she tried to keep the batches of documents about the same size. (Tr. 131, 163). The contract attorneys would call Ms. Thompson or stop by her office when they had completed reviewing a batch of documents and Ms. Thompson would assign them a new batch. (Tr. 92). It usually took Ms. Thompson a few minutes to assign a new batch of documents to a contract attorney. (Tr. 93).
Ms. Thompson did not check to make sure the contract attorneys had completed reviewing and coding a batch before assigning them a new batch. (Tr. 136, 162). Ms. Thompson did not expect the contract attorneys to review the documents and not code them, because purpose of the document review project was to code the documents. (Tr. 161-2). Ms. Thompson did not recall how many documents a typical contract attorney would review in a day, but it could have been as many as 1000 documents depending on what the documents were. (Tr. 132).
Ms. Thompson was aware that there were some technical problems with Case Data which caused the system to go down and attorneys to have trouble logging into or out of the system (Tr. 112). The contract attorneys would notify Ms. Thompson when there was a problem with the system and most of the time the issues were resolved in under an hour. (Tr. 112-3). There were a "handful" of problems with Case Data over the course of the project, but they did not occur on a daily basis. (Tr. 113, 116). Respondent did not report any problems with his computer to Ms. Thompson. (Tr. 114).
One time Case Data was down for a significant part of one day and the contract attorneys were sent home, but Ms. Thompson could not recall whether that occurred during the time Respondent was working on the project. (Tr. 113-4). Ms. Thompson did not know if the system was down while someone was logged in whether the system would reflect that time as time between edits. (Tr. 150). Ms. Thompson also did not recall Respondent reporting any problems with the document review system or any difficulties in completing the work or reviewing the documents to her. (Tr. 115-6).
Ms. Owen reviewed and approved the time sheets the contract attorneys prepared for Ajilon. (Tr. 100). Ms. Thompson reviewed the time sheets for Ajilon once or twice when Ms. Owen was out of the office, but it was mainly Ms. Owen's responsibility. (Tr. 100). Ms. Thompson approved the time sheets based on her understanding of whether or not the contract attorneys were in the office that day, but not based on any reports she ran in Case Data. (Tr. 174).
While Respondent was working on the project at Mayer Brown Ms. Thompson noticed his document review was "on the slower side" compared to some other contract attorneys, but she did not remember discussing this with Respondent. (Tr. 134). After Respondent's time in
the project had concluded Ms. Thompson became concerned about the document review Respondent had done. (Tr. 100-1). Ms. Thompson discovered that a big chunk of documents that were assigned to Respondent to review looked like they had never been reviewed and had not been coded. (Tr. 101).
Case Data was a database which included fields of data for each document including the time that each document was accessed and edited and by whom. (Tr. 105). After meeting with Ms. Owen and a couple of other attorneys at Mayer Brown, Ms. Thompson used an administrative function in Case Data to run a report to determine what documents in the system Respondent had actually reviewed and made edits to. (Tr. 102, 105-6, 168, 166-7). Respondent did not have access to this administrative function and could not have run a similar report. (Tr. 167). Ms. Thompson did not inform the contract attorneys that she had the ability to run this type of report in the document review system. (Tr. 167).
The report Ms. Thompson ran showed each document in the system that Respondent had reviewed, the date and time each of those documents was accessed by Respondent, and the number of minutes between Respondent's edits to those documents. (Tr. 105-6, 168; Adm. Ex. 3). Ms. Thompson concluded from the report that Respondent had not edited any of the documents in the big chunk of documents she had discovered, because none of those documents appeared in the report. (Tr. 168). Ms. Thompson testified that an edit to a document constituted any change made to the document, including coding the document as responsive, non responsive or privileged. (Tr. 106). The contract attorneys were required to code each document they reviewed in some way. (Tr. 173).
After Ms. Thompson reviewed the report she ran on Respondent in Case Data she exported it to Excel for the purpose of sharing the results of the report with other people. (Tr.
104, 107; Adm. Ex. 3). Ms. Thompson testified Administrator's Exhibit 3 was in "substantially the same condition" as the Excel document that she prepared based on the report that she ran on Respondent in Case Data and contained the fields she had selected to be printed. (Tr. 160). Administrator's Exhibit 3 was entitled "Reviewer Details - Kline Christian" and contained, inter alia, the following information:
Time First Edit Entered
Time Last Edit Entered
Number of Edits Made to Documents1
There were no entries in Administrator's Exhibit 3 for December 23, 26 or 30, 2005. (Adm. Ex. 3).
Ms. Thompson concluded from the report that there were large periods of time Respondent had billed Mayer Brown for working even though Respondent was not actually doing any work in the system on the documents. (Tr. 169; Adm. Ex. 3). To reach that conclusion Ms. Thompson compared Respondent's billing records to the time that Respondent was actually making edits to the documents as reflected in the report. (Tr. 170). It appeared to Ms. Thompson from the report that Respondent was not reviewing documents in Case Data
during time periods he had billed Mayer Brown for reviewing documents. (Tr. 108-9; Adm. Ex. 3).
Respondent billed Mayer Brown for working on December 23, 26, and 30, 2005, even though he did not make any edits to any documents in the system on those days. (Tr. 180-1; Adm. Ex. 3). Ms. Thompson thought it was significant that Respondent billed for a full day of work on December 26, 2005, even though he had written an email to Ms. Thompson to tell her that he would be out of the office that day and the report showed that he did not make any edits in the system on that day. (Tr. 153, 155-6; Adm. Ex. 3).
Ms. Thompson searched the entire document review system to determine whether there were other similar chunks of documents that were assigned to the other contract attorneys that did not appear to be reviewed or coded in the system, but she did not find any. (Tr. 111-2, 161). Ms. Thompson also ran similar reports for some of the other contract attorneys to the one she ran for Respondent. (Tr. 175-7). Those reports were different than the one she ran for Respondent, because there were not any similar large gaps of time between edits or extremely short gaps of time between edits for the other attorneys. (Tr. 175-7). There were also no billing issues with any of the other contract attorneys. (Tr. 161).
Rosaria V. Owen
Rosaria V. Owen is an attorney at Mayer Brown and was admitted to practice law in Illinois in November 1991. (Tr. 251). Ms. Owen was the supervising attorney on the document review project and was senior to Ms. Thompson. (Tr. 255, 292). However, Ms. Thompson was mostly in charge of overseeing the contract attorneys. (Tr. 255, 292). Ms. Owen was on jury duty for three weeks in November 2005 and then she took some time off around the holidays in December 2005. (Tr. 256, 279).
Ms. Thompson and Ms. Owen had an orientation meeting for the contract attorneys on their first day. (Tr. 255, 274). After the initial orientation meeting Ms. Thompson and Ms. Owen might have met with the contract attorneys together once or twice for a half hour regarding a particular issue. (Tr. 274). Occasionally throughout the project Ms. Owen would stop by the area where the contract attorneys worked to see if they had any general questions. (Tr. 273). Respondent worked in a set of cubicles and was not in an individual office. (Tr. 288).
The contract attorneys were provided with a memo Ms. Thompson prepared which was approximately eight to ten pages long and provided information about the things Mayer Brown wanted the contract attorneys to look for and how to code the documents. (Tr. 262). Ms. Owen testified that there might have been one or two additional memos prepared by the paralegals about the document review system or the coding that was provided to the contract attorneys. (Tr. 262, 276). There were no other written materials given to the contract attorneys. (Tr. 262, 276-7).
The contract attorneys' only job was to review the documents on Case Data. (Tr. 263). The contract attorneys were assigned batches of documents and were expected to code all of the documents that they were assigned. (Tr. 257-8).
The only times the contract attorneys were not logged into the system reviewing documents was their first day during the orientation or if they had a question. (Tr. 263). The document review system automatically logged the users off the system after a certain period of time, so if a contract attorney left for the day and was logged into the system the attorney would need to log in with a password the next day. (Tr. 259). Some of the contract attorneys that started in the fall of 2005 were allowed to work from home once they became very familiar with the document review if they had high speed internet access. (Tr. 264, 290-1)
Ms. Thompson would assign the contract attorneys a new batch of documents when they informed her that they had completed a batch. (Tr. 258, 271-2). Neither Ms. Owen nor Ms. Thompson reviewed the batches of documents that the contract attorneys said they had completed before they were assigned a new batch, but a quality control review of the completed documents was conducted at a later time. (Tr. 293, 302). Ms. Owen's goal was to have all the documents reviewed by mid January and then do a quality control review of all the documents to insure they were coded properly before the documents were produced in mid February. (Tr. 302).
Ms. Owen sometimes experienced problems with Case Data and some of the contract attorneys had computer difficulties as well. (Tr. 275, 291). Ms. Owen did not recall whether Respondent was one of the contract attorneys that reported having a computer glitch. (Tr. 275). The contract attorneys could call the IT department at Mayer Brown if they had a problem with their computer. (Tr. 291). It was also possible for the contract attorneys to select a different computer to work on if they were having difficulties with their particular computer, but for the most part the contract attorneys worked on the computers they were assigned to. (Tr. 264). Sometimes when there was a problem with Case Data the contract attorneys were told to stay and wait until the problem was fixed. (Tr. 291-2). There was one day when the contract attorneys were sent home around 3:00 p.m. because the document review system was down, but Ms. Owen thought that occurred before Respondent began working on the project. (Tr. 275-6).
Ms. Owen was mostly responsible for approving the contract attorney's time. (Tr. 271). The contract attorneys filled out written time sheets internally at Mayer Brown which Ms. Owen gave to her secretary to input into the firm's system so that the time could be billed to the client. (Tr. 284). Ms. Owen testified that sometimes she did not review these internal time sheets and
that the internal time sheets have probably been thrown out. (Tr. 284, 286). The contract attorneys also separately reported their time to Ajilon and Ajilon would sent Ms. Owen an email to approve their time. (Tr. 284). Ms. Owen stated that she assumed the contract attorneys worked the number of hours they reported. (Tr. 285). The contract attorneys were given key cards to access Mayer Brown's offices. (Tr. 290).
Ms. Owen became concerned about the work Respondent had done on the document review project during the first or second week of January 2006. (Tr. 264-5). Ms. Owen and Ms. Thompson were in the process of performing quality control reviews of batches of documents that the contract attorneys had finished coding to make sure the documents were coded correctly. (Tr. 265-6). Ms. Thompson did a quality control review of one of Respondent's batches and noticed that none of the documents in the batch had been coded. (Tr. 266).
After that, Ms. Owen and Ms. Thompson looked at all the other batches that had been assigned to Respondent and in some of the batches that were assigned to Respondent none of the documents were coded and in other batches that were assigned to Respondent most of the documents were not coded. (Tr. 267, 272). Ms. Thompson ran a report in Case Data which showed that there were over a thousand documents that had been assigned to Respondent and were supposed to be coded, but were not. (Tr. 267). Ms. Owen reviewed the reports Ms. Thompson ran for Respondent and all the other contract attorneys and Respondent was the only contract attorney that had discrepancies between the time he billed and the time he was working on the documents. (Tr. 267-9). There were also no other billing issues with any of the other contract attorneys. (Tr. 273). Ms. Owen and Ms. Thompson had other attorneys redo the review and coding of all the batches of documents that had been assigned to Respondent to make sure all the work was done. (Tr. 267).
Ms. Owen contacted Ajilon within one day of discovering that many of the documents assigned to Respondent were not coded and sent a copy of the report Ms. Thompson ran in Case Data regarding Respondent to Ajilon. (Tr. 267, 269, 281-2; Adm. Ex. 3). Ajilon reimbursed Mayer Brown for the money it had paid for Respondent's work. (Tr. 296). Mayer Brown withdrew all the charges for Respondent's time that it had billed the client for. (Tr. 267, 282).
Anna Lambros is an attorney and was licensed to practice law in Illinois in 1999. (Tr. 314). Ms. Lambros has been employed by Ajilon since January 2000 and is currently an area manager. (Tr. 314). Ms. Lambros hires, trains and mentors the staff in the Chicago office and is responsible for the office's success. (Tr. 314).
Ms. Lambros's office employed Respondent on approximately five or six temporary assignments through Ajilon. (Tr. 315). Jennifer Yu assigned Respondent to the document review project at Mayer Brown in 2005. (Tr. 315). That was the last project Respondent worked on for Ajilon. (Tr. 317).
The contract attorneys that work for Ajilon are responsible for keeping track of how many hours they have actually worked each week. (Tr. 316). The contract attorneys submit their hours electronically which goes to the client for approval and the client's approval of the time sheet generates a paycheck. (Tr. 316).
In December 2005 Ajilon's policy regarding holiday pay was that if a contract attorney had accrued 500 working hours and he or she worked for eight hours on any day during the week of the holiday, the contract attorney would receive a check for eight hours of pay for the holiday. (Tr. 317). In December 2005 Ajilon's policy regarding vacation pay was that if a contract attorney had worked for Ajilon without a six month lapse and accrued 1,500 hours the contract
attorney could receive a full 40 hour week of vacation pay. (Tr. 318). Additionally, if the contract attorney took holiday or vacation pay on any give day, they could also work on that day and receive payment for the hours the attorney actually worked. (Tr. 318).
Ms. Lambros became aware of a billing issue with respect to Respondent's work on the December 2005 Mayer Brown project in January 2006 when Ms. Yu told her about it. (Tr. 319-20). Ms. Lambros spoke to the Mayer Brown attorneys about what they had discovered with regard to Respondent's billing and reviewed the comparison Ms. Thompson, Ms. Owen and Ms. Yu had made between the report Ms. Thompson prepared and the time Respondent reported working each day. (Tr. 320-1, 330, 353, 355-8; Adm. Ex. 3). Based on her conversations with the Mayer Brown attorneys and her review of the documentation they provided, Ms. Lambros decided to give Mayer Brown a full refund for all the money the firm had been charged and had paid for Respondent's work. (Tr. 320-1, 330, 353, 355; Adm. Ex. 3). Ms. Lambros apologized to Ms. Owen for what had occurred. (Tr. 359-60).
Initially, Ms. Yu attempted to contact Respondent regarding the allegations, but she did not receive any response from Respondent. (Tr. 321). A few days later, Ms. Lambros called Respondent and left a message for him. (Tr. 321-2). At the time she left the message Ms. Lambros had already apologized to Ms. Owen and decided to refund the money to Mayer Brown and to stop payment on Respondent's paycheck for a week of time that had already been approved by Mayer Brown. (Tr. 328-9, 332, 359-60). Respondent's time sheet for his final week at Mayer Brown was never approved. (Tr. 338).
The message Ms. Lambros left Respondent stated that she had very serious concerns about what had occurred, that she was going to stop payment on Respondent's paycheck and that
Respondent should contact the Ajilon office immediately. (Tr. 321-2). Respondent called the Ajilon office less than 24 hours after Ms. Lambros left him the message. (Tr. 322).
Ms. Lambros told Respondent that there were severe discrepancies in the amount of time that he was working on the matter at Mayer Brown and the time he had submitted to Ajilon for payment. (Tr. 323). Ms. Lambros also told Respondent it appeared that he was not working during time periods Ajilon had paid him for working. (Tr. 324). Ms. Lambros asked Respondent if he had any response and he said "no." (Tr. 324). Ms. Lambros informed Respondent that she was going to stop payment on his paycheck and that Ajilon would probably be looking into the matter further because it was extremely severe and Respondent said "okay." (Tr. 324).
Ms. Lambros did not recall Respondent asking her if he could speak to the attorneys at Mayer Brown. (Tr. 352-1). Ms. Lambros did not have any further contact with Respondent. (Tr. 325).
Jennifer Yu is an attorney and was licensed to practice law in Illinois 2001. (Tr. 360-1). She has worked at Ajilon as a legal placement consultant since 2004. (Tr. 360-1). Respondent was already working as a contract attorney for Ajilon when Ms. Yu began working there and she placed Respondent on two projects. (Tr. 362). The first project she place Respondent on was a project in Washington D.C. and when Respondent returned from Washington D.C. she place him on the document review project at Mayer Brown in December 2005. (Tr. 362). Ms. Yu did not receive any feedback or complaints about Respondent's performance on the project in Washington D.C. (Tr. 364, 389).
The contract attorneys were not allowed to bill for lunch breaks, smoke breaks or any extended periods of time the attorneys were not working and were not involved directly with work that was being done for the project. (Tr. 368). Once a contract attorney worked a certain number of hours for Ajilon the attorney was entitled to both holiday and vacation pay. (Tr. 368). Vacation pay is 40 hours at the pay rate that the contract attorney is currently on and holiday pay is eight hours per day for any accepted holiday. (Tr. 368). The contract attorneys could work on the same days they were eligible for vacation or holiday pay and be paid for eight hours of holiday or vacation pay in addition to time that they actually worked. (Tr. 368-9). During the time Respondent was assigned to the Mayer Brown project he became eligible for both holiday and vacation pay. (Tr. 368).
Respondent reported his time to Ajilon on an electronic system that is used by both the contract attorneys and Ajilon's clients. (Tr. 369). The contract attorneys log into the system and are given a drop-down menu where they can select each day of the week and enter a starting and ending time. (Tr. 369). There is another drop-down menu from which the contract attorneys designate those hours as worked, break, holiday or vacation. (Tr. 370).
A time sheet is generated from the hours the contract attorney submits and is sent to the time sheet approver which is usually a paralegal or attorney at the firm or corporation Ajilon is working for. (Tr. 370). Once the time sheet is approved the electronic system generates either a paycheck or an electronic payment. (Tr. 371). The contract attorney receives an electronic notification that the time sheet has been approved. (Tr. 371).
Ms. Yu became aware of an issue with Respondent's billing on the Mayer Brown project when Ms. Thompson contacted her to let her know there was a problem. (Tr. 380). Ms. Thompson sent Ms. Yu a report which showed the identification number of each document
Respondent edited, the date and time Respondent edited each document and the number of minutes between Respondent's edits to each document. (Tr. 382, 413; Adm. Ex. 3). The report did not show what time Respondent started working each day, but it did show what time Respondent made his first edit to a document each day. (Tr. 428; Adm. Ex. 3). Ms Yu concluded from the report that Respondent stayed logged into the document review system overnight. (Tr. 427, 429; Adm. Ex. 3).
Ms. Yu compared the time Respondent reported working each day on his time sheets to the time Respondent made his first edit to a document and his last edit to a document each day according to the report Ms. Thompson gave her. (Tr. 415-16, 427-8; Adm. Ex. 2, 3). Ms. Yu also looked at the number of documents Respondent reviewed each day and how much time elapsed between Respondent's edits. (Tr. 382, 414; Adm. Ex. 2, 3). Ms. Yu concluded there was a large discrepancy between the time Respondent billed for working and the time he was making edits to the documents and that there were very long breaks of time between the edits. (Tr. 382-3, 414-5; Adm. Ex. 3). Ms. Yu testified that contract attorneys generally review one document a minute on an on-line document review system. (Tr. 408).
Ms. Yu testified that Respondent would not have been working in the document review system the first day he worked on the project because the first day on a project is a combination of an orientation, a security tour and providing the contract attorneys with access to the building. (Tr. 405-6).
During the time Respondent was working on the Mayer Brown project Respondent never reported any computer difficulties he was having or any reasons why he was unable to complete his assignments at Mayer Brown to Ms. Yu. (Tr. 387). Additionally, neither Ms. Thompson nor
Ms. Owen notified Ms. Yu about any extended periods of time that the document review system was not working while Respondent was assigned to the Mayer Brown Project. (Tr. 389, 393-6).
Ms. Yu attempted to contact Respondent to discus the discrepancy between the hours. (Tr. 384). Ms. Yu called Respondent at least twice and left messages for him asking him to call her about issues that had come up regarding the Mayer Brown project, but she did not receive a response from Respondent. (Tr. 384-5, 417). Ms. Yu did not recall how specific she was about what those issues were on the messages she left for Respondent. (Tr. 418). A few days later Ms. Lambros called Respondent and left a message for him stating that she wanted to speak to him about the discrepancy between the hours and that his paycheck could be affected. (Tr. 384-6). Ms. Lambros wanted to talk to Respondent before she stopped the payment on Respondent's last paycheck. (Tr. 385).
Respondent returned Ms. Lambros's call, but asked to speak to Ms. Yu. (Tr. 386). Ms. Lambros was in Ms. Yu's office and took the call from Respondent. (Tr. 386). Ms. Yu was present in the room during the call, but was not able to hear Respondent's responses to Ms. Lambros's inquiries. (Tr. 386). Ms. Yu could hear what Ms. Lambros said to Respondent. (Tr. 386). Ms. Lambros asked Respondent if there was any information he could offer to explain the discrepancy between the hours. (Tr. 386-7). Respondent did not offer any explanation and he never asked Ms. Yu if he could sit down with the Mayer Brown attorneys and go through the documents. (Tr. 387). Ms. Lambros and Ms. Lambros's manager decided to recall a payment to Respondent by stopping those funds from being deposited into Respondent's account. (Tr. 396-7).
Ms. Yu testified that she makes activity notes about the contract attorneys and clients she works with and that there is an electronic record of the notes she made regarding Respondent.
(Tr. 477-8; Adm. Ex. 6). Ms. Yu made an activity note on January 5, 2006, that Respondent and three of the other contract attorneys were working slower than the other contract attorneys. (Tr. 485-7, 502; Adm. Ex. 6). Ms. Yu further noted that Ajilon would probably not work with Respondent and the other three contract attorneys whose work was slower again as top candidates. (Tr. 488; Adm. Ex. 6).
Respondent was not contacted for placement on additional projects after the Mayer Brown project and was designated at Ajilon as someone not to use. (Tr. 432). Ms. Yu was not aware of any offers made to Respondent by a former employee in Ajilon's Washington D.C. office after the Mayer Brown project. (Tr. 435).
Elizabeth Brasser is an attorney and was admitted to practice law in Illinois in 2003. (Tr. 223). Prior to moving to Florida she worked as a contract attorney for Ajilon and worked on the document review project at Mayer Brown in December 2005. (Tr. 224-5).
The contract attorneys were given an orientation the first day they started and an information packet that was 15 to 20 pages long. (Tr. 226-7). Ms. Brasser and the other contract attorneys did not review any documents that were not on the computer except for the information packet which was full of terminology. (Tr. 226).
Ms. Brasser testified the project was straightforward and the document review system was easy to use. (Tr. 247). Approximately once a week the Mayer Brown attorneys would give the contract attorneys updates about the project that would last 10-15 minutes. (Tr. 227, 242). Ms. Brasser recalled having to go back and review documents she had previously reviewed because the complaint or answer was amended or because the instructions for the project had changed. (Tr. 241).
Ms. Brasser got locked out of the document review system a couple of times. (Tr. 228-9). When that happened Ms. Brasser called the IT department at Mayer Brown and the problem would be fixed "within minutes." (Tr. 229, 244).
Ms. Brasser worked on the project at Mayer Brown from 9:00 a.m. to 5:00 p.m. and all the other contract attorneys worked the same hours except for one male attorney would come in the last hour of the day at approximately 4:00 p.m. (Tr. 229-30, 233, 238). Ms. Brasser did not recall if the male attorney was Respondent and had no personal knowledge as to how many hours Respondent worked each day. (Tr. 230, 233). Ms. Brasser was not aware of any opportunity to work on the project past 5:00 p.m., it was her understanding that 5:00 p.m. was the latest the contract attorneys could work. (Tr. 238-9). Ms. Brasser recalled that she had a key card to get into the floor she worked on and that she was paid for two 15 minute breaks. (Tr. 237).
Robert Naumann is an attorney and was licensed to practice law in Illinois in November 2003. (Tr. 437). Mr. Naumann worked as a contract attorney for Ajilon between 2005 and 2006 and worked on the project at Mayer Brown with Respondent. (Tr. 437-8). The project entailed the review of documents for the purpose of assisting Mayer Brown in determining responsiveness to discovery requests. (Tr. 438). Mr. Naumann reviewed and coded the documents on the computer. (Tr. 438).
After the first day of orientation the contract attorneys saw Ms. Owen and Ms. Thompson infrequently. (Tr. 457). The contract attorneys did not receive feedback about the quality of their work. (Tr. 458). Mr. Naumann recalled being instructed to re-review documents for something particular. (Tr. 459).
The only written materials Mr. Naumann recalled being given were a four page document regarding the confidentiality of the documents the contract attorneys were reviewing and a small document regarding how to log in and out of the computers. (Tr. 438-40; Adm. Ex. 5). Mr. Naumann did not recall being given a memo from Ms. Thompson or any pleadings regarding the case, but acknowledged that it was possible he was confusing the Mayer Brown project with another document review project he was assigned to by Ajilon. (Tr. 445-6).
Mr. Naumann worked approximately nine hours a day on the project and arrived typically between 8:00 a.m. and 8:30 a.m. and left between 5:30 p.m. and 6:00 p.m. (Tr. 443). Respondent typically arrived in the late morning at 11:00 a.m. and was still there when Mr. Naumann left for the day. (Tr. 444, 458). Mr. Naumann knew Respondent was present in the office for five or six hours each day, but Mr. Naumann could not observe Respondent working from where he sat in the Mayer Brown offices. (Tr. 442, 444, 451, 457). Mr. Naumann testified that Respondent participated in discussions with the other contract attorneys about how to code particular documents and questions to ask the supervisors. (Tr. 452).
Mr. Naumann did not recall being sent home because of computer problems during the project. (Tr. 443). There were computer problems that occurred approximately once a week and they normally lasted for approximately 30 minutes. (Tr. 443-4, 456).
A few of the contract attorneys on the Mayer Brown project exchanged emails and Mr. Naumann had Respondent's email address. (Tr. 441). Mr. Naumann received an email from Respondent dated December 26, 2005, which stated that Respondent had decided to stay home that day and take the holiday pay. (Tr. 441-2; Adm. Ex. 4). Mr. Naumann was "fairly certain" that he worked on December 26, 2005, because his policy at the time was to work as many hours as he could including holidays, but he could not verify that he worked that day. (Tr. 450-1). Mr.
Naumann recalled that Respondent did not work on December 26, 2005, but Mr. Naumann did not recall any other day Respondent was not in the office and acknowledged that he could not verify that Respondent was not present on December 26, 2005, if Mr. Naumann was also not there. (Tr. 450-1).
Respondent is 43 years old, is not married and lives alone. (Tr. 562, 639-40). He graduated from Northwestern University Law School and was admitted to practice law in Illinois in 1996. (Tr. 562). Respondent worked in private practice for a couple years after law school. (Tr. 562). Respondent left the practice of law and taught rowing from 1999 to 2002 at the Lincoln Park Boat Club. (Tr. 562). In 2002 Respondent decided to get back into the practice of law and began working as a contract attorney. (Tr. 563).
Respondent did contract work from 2002 to 2006 through agencies such as Ajilon, Compliance, Hire Counsel, Providus and Updated Legal and worked on assignments in both Chicago and Washington D.C. (Tr. 563, 565). During that time Respondent made his living doing contract work and wanted to work the full amount of time he was encouraged to work on each job. (Tr. 640). Respondent understood that he was working as a lawyer when he did contract work and that he was required to be honest, reliable and honorable. (Tr. 640-1). Prior to 2006 no firm or agency ever complained about Respondent's work. (Tr. 568).
Respondent has stopped doing contract work and now works as a solo practitioner out of his home and has handled traffic court cases, domestic violence cases, condominium disputes and landlord-tenant disputes. (Tr. 564-5, 682). Respondent does not have a staff and records the hours and the dates he works for each client on a legal pad in addition to a brief description of
the work done. (Tr. 682-3). Respondent strongly values his license to practice law and his reputation for honesty in the legal community and would not risk losing either. (Tr. 641-3).
Respondent did pro bono work and some work for a flat fee for First Defense Legal Aid for a few years after law school. (Tr. 562-3). Respondent coached a high school trial team from 1998 to 2002. (Tr. 563-4). Respondent also judges a moot court competition at his law school every year and has volunteered this past year for the history and science fairs at a school his friend Mike Vollinger teaches at. (Tr. 563).
While Respondent was working as a contract attorney most of the assignments he worked on were document review projects for law firms, but some of his assignments included more substantive work such as brief writing. (Tr. 565). Respondent did four jobs for Ajilon prior to working on the document review project at Mayer Brown and was told that he was doing good work on those jobs. (Tr. 568, 574). Respondent also testified that Ajilon kept asking him "to come back" which indicated his reliability because agencies have a lot of people on their rosters. (Tr. 575).
Respondent became very familiar with document review software during the time he was a contract attorney. (Tr. 566). Ms. Yu told Respondent she asked him to work on the project at Mayer Brown because it was substantive and fairly difficult and he had done other document reviews. (Tr. 575). Respondent had not worked with Case Data before the document review project at Mayer Brown and he did not think it was "as good" as some of the other document review software he had worked with previously. (Tr. 566).
The document review project at Mayer Brown was complicated and involved the UCC and a lot of concepts Respondent had not dealt with before. (Tr. 569, 588). The contract attorneys were given more materials to review than Respondent had seen on any other document
review project and the materials changed several times as the project went on. (Tr. 570). There were two three-inch binders of materials which included the complaint, the answer, interrogatories and a memorandum. (Tr. 569-70, 662).
Respondent was part of the third group of contract lawyers who were brought in to work on the document review project at Mayer Brown and they worked in an open area in cubicles. (Tr. 574-5). At the orientation Ms. Thompson and Ms. Owen told the contract attorneys they could only bill 10 hours a day and the attorneys were encouraged to work as many hours as they could. (Tr. 585). Respondent did not do any coding the first day of the project because the contract attorneys were being trained on the system. (Tr. 590-1).
The contract attorneys were told that they could work whatever hours they wanted to. (Tr. 617). Respondent tended to arrive later, sometimes as late as noon, and leave later than the other contract attorneys. (Tr. 617-18). Respondent wrote an email to two other contract attorneys, Robert Naumann and Mark Jones, on December 26, 2005, as a courtesy to let them know that he was not planning on coming in that day after he sent a similar email to Ajilon and Ms. Thompson. (Tr. 631; Adm. Ex. 4). Respondent's recollection was that Mr. Jones replied to Respondent's email and stated that he was going to work that day and Respondent decided to go in and work that day since Mr. Jones was in the office. (Tr. 632). It was the only day Respondent worked on the project that he billed 5 hours instead of 10. (Tr. 632).
Respondent testified that he understood coding documents was one of the purposes of the assignment, but that coding documents was not the only task the job required. (Tr. 569). At the beginning and end of each day Respondent reviewed the binders of materials, talked to the other contract attorneys about the work they were doing and any problems that they encountered and reviewed work he had already completed if there were any changes. (Tr. 591-2, 618-9, 662).
Respondent testified that there were changes almost every day including updates to the attorney lists. (Tr. 592, 618). Respondent testified that he reviewed the documents very carefully each time the attorney lists were updated and that he was required to review each page of every document to determine whether or not there were attorney comments on each page. (Tr. 571, 597-9).
Respondent would code documents through the bulk of the day, but it would take him time to review the documents first and sometimes he had to look at other documents to understand the document he was coding. (Tr. 592, 618-9). Many of the documents were hundreds of pages long such as spreadsheets and insurance policies and other documents were much shorter such as emails or cover letters. (Tr. 588, 597). There were also blank pages that Respondent would click through in two seconds and sometimes there were four or five blank pages in a row. (Tr. 588).
When coding the documents the contract attorneys had to categorize the documents. (Tr. 503). Respondent would first determine whether the document was responsive to the interrogatories. (Tr. 593). There was a document several pages long that explained the interrogatories and the contract attorneys were also given the interrogatories. (Tr. 593-4). After determining whether the document was responsive Respondent had to determine whether it was attorney-client privilege, work product, "key" which meant that it was "very good" or "hot" which meant it was "something that hurts." (Tr. 594).
Respondent testified that for documents that were attorney-client privilege, work product, "key" or "hot" he "always had to write attorney notes" in the attorney comments box and when he opened up that screen it often crashed the system. (Tr. 594, 626). Respondent never heard anyone use the term "edits" when he worked on the project at Mayer Brown, but the contract
attorneys did redact documents that were privileged, which could have been considered an edit. (Tr. 594-5). Respondent's "best recollection" was that the coding was saved automatically when he moved to the next document and that he did not have to save each document when he finished coding or editing it. (Tr. 607).
Ms. Thompson and a paralegal assigned the batches of documents to the contract attorneys. (Tr. 604, 611). Respondent recalled that there were between 300 and 500 documents in each batch. (Tr. 605). Respondent testified that he requested a new batch of documents approximately four or five times during the project. (Tr. 691, 693). Respondent believed that the batches he completed were being quality controlled at the time he turned them in. (Tr. 572, 625).
Respondent had to deal with computer problems, such as having his log in password "freeze out," on a daily basis. (Tr. 592-3). This required him to contact Mayer Brown's IT department to get it "unfrozen." (Tr. 592). Respondent testified there were times when he was off the system for hours because of the computer problems, but at his sworn statement in August 2007 Respondent testified that he did not recall a period when he was off the computer system for hours. (Tr. 662-3). Respondent was aware that other contract attorneys on the project had computer difficulties as well. (Tr. 675).
Sometimes Respondent experienced computer problems after the people in Mayer Brown's IT Department had already left for the day. (Tr. 593). When this occurred Respondent would either review documents or he would end his day. (Tr. 593). Respondent also experienced problems moving from one document to the next because there was a problem with the connection to Case Data or with the Case Data server. (Tr. 626). Respondent logged into the document review system a few times from home and "did a couple things." (Tr. 588).
Respondent knew that he was permitted to work from home but that Mayer Brown preferred the contract attorneys to work at the office. (Tr. 589).
The contract attorneys were also told at one point to go back and re-review all the documents they had already reviewed because the attorney lists changed and part of the document review was to identify documents that fell under attorney-client privilege. (Tr. 570, 601, 700). Respondent had to go back through all the documents he had already reviewed and look at the previous coding, but he did not know how many documents he re-reviewed at that point or how long it took him to do that. (Tr. 602, 701). He recalled that the re-review occurred during the third week of the project. (Tr. 601).
Respondent was never told how many documents he was required to review. (Tr. 604). Respondent asked Ms. Thompson and Ms. Owen several times whether his progress and the work he was doing was alright because the document review took more time than any other job Respondent had been assigned to. (Tr. 571). After the first week Ms. Thompson and Ms. Owen told Respondent not to worry about his output because "it takes time to get up to speed" and the subsequent feedback Respondent received was that he was doing "fine." (Tr. 571-2, 614). Ms. Owen specifically told him that the amount and quality of his work was "fine." (Tr. 625).
There were intermittent meetings with the supervisors, but no review of the contract attorneys' work. (Tr. 614). Respondent saw Ms. Owen approximately four times during the project and Ms. Thompson approximately five or six times. (Tr. 614). Respondent was concerned about the lack of substantive feedback he received from the supervisors, because he was afraid of being fired if he was working too slowly. (Tr. 572-3, 701). Respondent spoke about his concerns with two other contract attorneys, Mr. Jones and Mr. Naumann, who both sat near Respondent while he was assigned to the project. (Tr. 572-3).
Respondent further testified that he spoke to Ms. Thompson and Ms. Owen about the computer problems he experienced. (Tr. 581). Respondent told them he had to talk to people in the Mayer Brown IT department nearly every day and that he also spoke to people at Case Data. (Tr. 581). Respondent further testified that he told them "he was getting kicked out of the computer all the time" and that he was concerned about that. (Tr. 581). Respondent did not notify Ajilon about the computer problems he experienced during the project at Mayer Brown. (Tr. 664). Respondent did not recall whether he reported computer problems he experienced on previous projects to Ajilon. (Tr. 664-5).
Respondent was entitled to bill for everything he did including learning about the document review, reviewing the file, reviewing and reading documents, talking to his co-workers, consulting with his supervisors and talking to the IT department. (Tr. 586, 602). Respondent further testified that he was entitled to bill for becoming familiar with the complaint, answer, amendments to the answer, the interrogatories and other discovery requests. (Tr. 596). Respondent was also entitled to bill for reading supporting memoranda, attending meetings and reviewing documents when he was not editing, coding or modifying the documents. (Tr. 596).
There was no mechanism for Respondent to specify how he spent the time he billed for each day when he entered the time he worked on Ajilon's website. (Tr. 586). All the time he worked on the project was classified as "Document Review, Mayer Brown Project." (Tr. 586-7). The only thing Respondent was not supposed to bill for was a half an hour for lunch. (Tr. 586). Respondent went to Ajilon's website and entered his start time, the half hour that he took for lunch and his end time for each day he worked on the project at Mayer Brown. (Tr. 586-7).
Respondent's time was approved by Ms. Thompson or Ms. Owen every week. (Tr. 624). Respondent could not get paid until Mayer Brown approved his time. (Tr. 624-5). Respondent
was paid $35 an hour by Ajilon and Mayer Brown paid Ajilon $70 an hour for Respondent's work. (Tr. 589).
Respondent's understanding of Administrator's Exhibit 3 was that it is an Excel document Ms. Thompson created based on a Case Data document. (Tr. 609-10). Respondent testified that the document created by Ms. Thompson did not accurately and fairly show the work he did at Mayer Brown and that he did not only work each day from the time of his first edit to the time of his last edit. (Tr. 639; Adm. Ex. 3). The document did not show the time it would take him to boot up his computer or get on the Case Data system; the time he spent conferring with colleagues, his supervisors or the IT department; the time he spent in meetings; the time he spent in trainings or the time he spent reviewing source materials such as the complaint, answer or interrogatories. (Tr. 627-8; Adm. Ex. 3). Respondent further testified that he could have experienced computer problems and done non-coding work between edits. (Tr. 651-2; Adm. Ex. 3).
Respondent testified that the document created by Ms. Thompson also did not reflect the time he spent reviewing the documents or re-reviewing documents after there were changes. (Tr. 601, 628-9; Adm. Ex. 3). Respondent did not know whether the document showed that an edit was made when Respondent changed the coding he had previously done on a document while re-reviewing documents. (Tr. 602, 689-90; Adm. Ex. 3). Respondent testified that during the third week of the project he was instructed to re-review all of the work he had done up to that point because there was a "big change" to the protocol of what the contract attorneys were instructed to look for. (Tr. 603, 634-6, 656-7). Respondent testified that the document shows a drop-off in the amount of work he did during the third week of the project, but that Respondent recalled that his work output was not different that week. (Tr. 634-6; Adm. Ex. 3).
Respondent acknowledged that the document created by Ms. Thompson does not have any entries for coding Respondent did on December 23, 2005 or December 26, 2005. (Tr. 694-6; Adm. Ex. 3). Respondent explained that there are no entries for those dates because the document is not accurate and further explained that there could have been "batching problems" which could have caused his batches not to be recorded or for him to be assigned batches of documents from a different lawsuit. (Tr. 695-6). Respondent testified that he probably would have known if he was assigned batches of documents for a different case, but that he could have been assigned documents from the file that were not being reviewed for the project. (Tr. 697). Respondent also testified he thought he coded documents on December 23 and 26, 2005. (Tr. 695, 698).
Respondent further testified that because the document created by Ms. Thompson may not have "picked up" the coding Respondent did when he was re-reviewing documents, he did not think it was accurate that the first coding he did on December 28, 2005, occurred at 3:02 p.m. or that the last coding he did that day occurred at 6:19 p.m. (Tr. 699; Adm. Ex. 3). Respondent testified his answer would be the same for other days where it appeared on the document that Respondent's coding took place over a four or five hour period. (Tr. 700; Adm. Ex. 3).
Respondent testified the best evidence of what he did at Mayer Brown would be his time sheets and his work product which consisted of the actual documents he reviewed with his coding and attorney comments on them. (Tr. 603, 629). Respondent has never been able to see his time sheets or his work product. (Tr. 603, 611). If Respondent could review his work product he could explain why reviewing and coding certain documents took him a long or short period of time. (Tr. 603).
Respondent testified that he worked exactly the number of hours that he said he worked and that he worked the maximum number of hours the contract attorneys were encouraged to work. (Tr. 637-8). Respondent did not print out copies of his time sheets, because while he worked for Ajilon he was able to access all his previous timesheets by logging onto Ajilon's website. (Tr. 683-4). After the billing issue regarding the Mayer Brown project arose, he was no longer able to access his timesheets. (Tr. 683-4). Respondent also did not subpoena the records of the key card he used to get in and out of the building Mayer Brown's offices were in. (Tr. 702).
Respondent did not knowingly turn in a batch of documents or thousands of documents that were not coded. (Tr. 612-13, 625). Respondent testified that based on his experience working as a contract attorney there were a couple possible explanations for why some of the documents he submitted appeared to not be edited or coded. (Tr. 623). Respondent testified that the batches may have been improperly assigned, the batches he was assigned may have already been done, the batches he was assigned may have existed outside of "the production run on the servers" or the coding he did may not have been saved as he went through the documents he was assigned. (Tr. 623, 638).
Respondent experienced problems on other projects where the same batch of documents was assigned to two contract attorneys and none of the work the contract attorney who was assigned the documents second got recorded because the attorney was in "review only mode" and the "clicks" the attorney made to code the documents were not recorded. (Tr. 605-6). Respondent did not know whether the capability existed in Case Data to have the same batch assigned to two attorneys simultaneously or whether the system would choose to delete one attorney's edits as opposed to the other attorney's edits. (Tr. 655). Respondent also experienced
a problem on a prior project where the data he entered was changed when the data was exported from one program to another, but he was able to speak to the IT department and explain what happened. (Tr. 622).
Respondent was not terminated from the document review
project at Mayer Brown. (Tr. 575). Ms. Yu told Respondent the job would last
approximately a month and it did last for that amount of time. (Tr. 576). The
attorneys in Respondent's group were thanked for their work and told
heir part of the project had come to an end. (Tr. 576). They knew the project was continuing on
ithout them, but they were not let go for cause. (Tr. 576).
Respondent received three calls from Ajilon on January 12, 2006. (Tr. 579-80). The first two calls were from Ms. Yu and the messages she left for him simply requested that he call her back. (Tr. 580). Respondent did not assign any urgency to the messages from Ms. Yu and he assumed she was calling him about a new project because the project at Mayer Brown had just ended. (Tr. 580). Later in the day Ms. Lambros called Respondent and left him a message that there was a problem with his pay and to please call her back. (Tr. 580). Respondent returned Ms. Lambros's message within a day and called her from his grandmother's house. (Tr. 580).
When he spoke to Ms. Lambros she informed him that there was a problem with his billing and that Mayer Brown claimed he did not do all the work that he said he did, but she did not give him any specific information. (Tr. 581, 583). Respondent was "flabbergasted" by this allegation because of all the effort he expended trying to get feedback from the supervisors of the project. (Tr. 581). Respondent asked Ms. Lambros if he could speak to Ms. Thompson or Ms. Owen and Ms. Lambros said that she would not allow him to do that because Respondent signed a contract that he could not contact a client after a project was finished without Ajilon's
permission. (Tr. 581-3). Ms. Lambros also told him she was going to report him to the ARDC. (Tr. 584). Respondent was not aware Ms. Yu was also on the phone. (Tr. 582).
Respondent did not call Ms. Lambros again. (Tr. 672). Respondent did not contact anyone higher up at Ajilon to complain about Ms. Yu or Ms. Lambros. (Tr. 671). He also did not submit a written request to review the documents from the Mayer Brown project or to talk to the Mayer brown attorneys because Ms. Lambros denied his verbal request. (Tr. 672). Respondent did not attempt to contact anyone at Mayer Brown because he signed an agreement that he would not and he assumed there was going to be an ARDC proceeding. (Tr. 671, 679; Adm. Ex. 1).
Respondent was paid for the hours he worked during the first and second weeks of the project at Mayer Brown and for a week of vacation time he qualified for. (Tr. 578, 589-90). In order to qualify for vacation time the contract attorneys that worked for Ajilon had to work 1500 hours and Respondent had worked 1475 hours when he started the project at Mayer Brown. (Tr. 590). Money was also deposited into Respondent's account for the hours he worked during the third week of the project and for two days of holiday pay he earned during the third week, but that money was then withdrawn from his account. (Tr. 578). Respondent was not paid for the hours he worked during the fourth week of the project. (Tr. 703).
Respondent did not think he was treated fairly by Ajilon because Ajilon caused money that had already been deposited into Respondent's bank account to be withdrawn. (Tr. 578). Respondent considered Ajilon to be in breach of its agreement with him after they took the money for his paycheck out of his bank account. (Tr. 670). Respondent signed a document which authorized Ajilon to make debit entries and adjustments for any credit entries made in error to his account. (Tr. 674). Respondent testified that there was no error in the amount
deposited for his third week of work and that he did not authorize Ajilon to take his funds out of his account when Ajilon disputed whether he worked the time he said he did. (Tr. 676-7).
Jon Pomykala from Ajilon's Washington D.C. office called Respondent in the summer of 2006 and asked Respondent to work on a job in Washington D.C. for Ajilon. (Tr. 576). Respondent declined Mr. Pomykala's offer. (Tr. 577).
Michael J. Vollinger
Michael J. Vollinger has been a Chicago Public School teacher for six years. (Tr. 185). Respondent is a personal friend of Mr. Vollinger's and he has known Respondent socially for approximately nine years. (Tr. 186-7, 193). Respondent has come into Mr. Vollinger's classroom to help out and volunteered to be a judge in a history fair that Mr. Vollinger ran at his school. (Tr. 190).
Mr. Vollinger and Respondent have many mutual friends who have various occupations including teachers, doctors, lawyers and businessmen. (Tr. 187). Respondent has a reputation of honesty and integrity among their mutual friends and Mr. Vollinger's personal opinion is that Respondent is an honest person with great personal integrity. (Tr. 188-9, 194-5). Mr. Vollinger has specifically spoken to three people about Respondent's reputation for truthfulness and veracity, but it is something that is generally understood. (Tr. 191-3). Mr. Vollinger does not have knowledge of Respondent's reputation in the legal community. (Tr. 195).
Mr. Vollinger was aware Respondent's ARDC matter involved a discrepancy about billable hours, but that knowledge did not change his opinion of Respondent. (Tr. 189-90). Mr. Vollinger was not aware of the specific allegations against Respondent in the Administrator's Complaint. (Tr. 191).
Ajay Baddi has been a cardiologist for six years. (Tr. 196). Mr. Baddi is a personal friend of Respondent's and has known Respondent for approximately 20 years. (Tr. 197). Mr. Baddi sees Respondent a couple of times a month and used to see him more frequently before Mr. Baddi got married and had children. (Tr. 197). Respondent has babysat Mr. Baddi's children. (Tr. 197). Mr. Baddi trusts Respondent and has never had any issues with Respondent's honesty. (Tr. 198).
Mr. Baddi and Respondent have approximately 10-20 mutual friends. (Tr. 198). Mr. Baddi's opinion of Respondent's reputation for truthfulness, honesty and integrity is that it's impeccable. (Tr. 198). Mr. Baddi has not specifically spoken to other people about Respondent's character or his reputation for truthfulness and veracity, but "it's never been an issue" and "it's never really come up." (Tr. 199-200). Mr. Baddi does not know Respondent's reputation for truthfulness and veracity in the legal profession and he has never been a client of Respondent's. (Tr. 200). Mr. Baddi is aware that the allegations against Respondent are that he billed for a certain number of hours that he did not work, but the allegations did not change his opinion of Respondent. (Tr. 199). Mr. Baddi did not review the Administrator's Complaint. (Tr. 200).
Edmund Butler is currently a teacher, but previously worked in banking. (Tr. 201). Mr. Butler has known Respondent socially for approximately 11 years. (Tr. 202). Mr. Butler sees Respondent a few times a month. (Tr. 202). Mr. Butler has never been a client of Respondent's and he has not referred anyone to Respondent for legal services. (Tr. 202, 204). Mr. Butler's opinion is that Respondent has unimpeachable integrity and very impressive character. (Tr.
203). Mr. Butler has no knowledge of Respondent's reputation among their mutual friends and he has not discussed Respondent's reputation for truthfulness and veracity with anyone in the legal community. (Tr. 203-4). Mr. Butler is generally aware that the ARDC matter regarding Respondent is a billing dispute, but it did not change his opinion of Respondent. (Tr. 203). Mr. Butler did not review the Administrator's Complaint. (Tr. 204).
Francesco Penati has been an attorney since 1993 and graduated from Notre Dame Law School. (Tr. 207). Mr. Penati is a partner at Kirkland and Ellis and works in the firm's San Francisco office. (Tr. 206-7). Mr. Penati has known Respondent for approximately 11 years and he and Respondent have a very active social life and friendship although they have only been able see each other "every few months" since Mr. Penati moved to San Francisco. (Tr. 207-9).
Mr. Penati met Respondent through another lawyer who Mr. Penati went to law school with when Mr. Penati moved to Chicago to start working for Kirkland and Ellis. (Tr. 207). Mr. Penati and Respondent also have two or three other friends in common who are attorneys. (Tr. 207). Respondent has a very good reputation for honesty among their mutual friends who are attorneys, but Mr. Penati could not recall a specific conversation they had about Respondent's reputation. (Tr. 208). Mr. Penati's opinion of Respondent is that he is very honest. (Tr. 209).
Mr. Penati has not discussed Respondent's reputation for truthfulness and veracity in any legal community outside of his and Respondent's mutual friends. (Tr. 211). Mr. Penati has not reviewed the Administrator's Complaint. (Tr. 211).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must establish charges of lawyer 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). It is well settled that "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, sec. 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).
It is the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh the conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). With the above principles in mind and after careful consideration of the admitted facts, testimony and exhibits, we make the following findings.
We find the Administrator proved by clear and convincing evidence Respondent violated Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct by engaging in misconduct involving a misrepresentation. We conclude the evidence provided by the Administrator is clear and convincing that Respondent, a contract attorney working at Mayer Brown, engaged in overbilling.
Ms. Thompson and Ms. Owen supervised the contract attorneys at Mayer Brown. Ms. Thompson was able to generate a computer record from Case Data which was a report showing the time of day Respondent made his first edit to a document, the time that elapsed between each document edit, and the time of day Respondent made his last edit to a document. Ms. Thompson testified that making an edit to a document was the same as coding a document.
Respondent billed his employer Ajilon Legal Services for ten hours he claimed to have spent "on the job" at Mayer Brown on December 13, 14, 15, 16, 19, 20, 21, 22, 23, 27, 28, 29, and 30, 2005, and for five hours he claimed to have worked on December 26, 2005. The report generated by Ms. Thompson using Case Data shows that on at least three of the days in which Respondent billed time, December 23, 26, and 30, 2005, no edits were performed by Respondent, and on December 29, 2005, Respondent only made one edit at approximately 6:00 p.m. Respondent billed 35 hours in total for those days.
The report also shows that Respondent edited documents for periods of far fewer than ten hours on the other days in the relevant period. The report shows that Respondent spent approximately 35 hours editing documents on the seven days of December 14, 15, 16, 19, 20, 21 and 22, 2005 and approximately seven hours editing documents on December 27 and 28, 2005. Respondent billed 90 hours of work for those days.
Respondent's overbilling is confirmed by the fact that very few edits were made to documents on the days Respondent did some editing. For example, the report reflects that Respondent worked a full day on December 13, 2005, his first day of editing after the orientation, and made 44 edits to documents. While this does not appear to be a substantial amount of editing over a period of almost ten hours, Respondent made far fewer edits to documents on December 14, 15 and 16, 2005. He made 9 edits on December 14, 2005, 13 edits on December 15, 2005, and 25 edits on December 16, 2005. The elapsed time between his first and last edits was 3, 4, and 5 hours respectively on those days, which was consistent with the small number of edits he made.
Other evidence supports this conclusion. First, Respondent's supervisors at Mayer Brown testified that there was a large chunk of over 1000 documents that were assigned to
Respondent and were supposed to be coded, but were not. This evidence is consistent with the fact that the report Ms. Thompson generated from Case Data shows that Respondent edited very few documents on several days and none on others. Additionally, the emails Respondent sent Mr. Naumann and Ms. Thompson stating that he was not going to be in the office on December 26, 2005, corroborate the evidence contained in the report prepared by Ms. Thompson that Respondent did not do any editing that day.
Respondent testified that he was assigned approximately five batches of documents with 300 to 500 documents in each batch during the time he worked at Mayer Brown. Ms. Thompson and Ms. Owen testified that the contract attorneys were supposed to make an edit to each document they were assigned, yet the report from Case Data shows Respondent only made 235 edits during the period in question. We find the report and the testimony of Ms. Thompson and Ms. Owen that there were over 1000 documents assigned to Respondent which were not coded very consistent.
Moreover, the evidence was clear that Respondent worked different hours than the other contract attorneys. While the other contract attorneys arrived in the morning and put in normal working days, Respondent often came in late morning or early afternoon. The time Respondent did his first edit each day as reflected in the report prepared by Ms. Thompson is consistent with this testimony. For example, Respondent began his first edit at 2:18 p.m. on December 14, 2005; 12:49 p.m. on December 15, 2005; 11:55 a.m. on December 16, 2005; 12:02 p.m. on December 19, 2005 and 12:31 p.m. on December 20, 2005.
Accordingly, Respondent's ten hour day would not end until the other contract attorneys had left for the day. However, there was no evidence that Respondent stayed at Mayer Brown until 10:00 p.m. or 11:00 p.m. on the days he began his first edit after 12:00 p.m. In fact, the
report prepared by Ms. Thompson reflects that Respondent completed his last edit each day between 5:00 p.m. and 7:00 p.m. Respondent did not introduce the building security records which might have shown his entry and exit time each day.
While we are not inclined to put a great deal of weight on Respondent's silence when confronted by Ms. Lambros over the phone about the discrepancy between the number of hours Respondent billed and the amount of work the report generated by Ms. Thompson shows that he did, the fact that he did not deny the accusations is consistent with the other evidence discussed herein.
Respondent challenged the admissibility of the report Ms. Thompson generated from Case Data and argued that the report did not show the time he spent conferring with colleagues, the time he spent meeting with his supervisors or the time he spent reviewing two binders of documents the contract attorneys were given for the project. Respondent also testified that the report did not reflect the time he spent reviewing the documents before coding them or the time he spent re-reviewing documents after the protocol for what the contract attorneys were looking for changed.
Respondent's assertions that he spent a significant amount of time engaged in these other activities was not corroborated by the testimony of the other contract attorneys or the testimony of the supervisors at Mayer Brown. No one else testified that the contract attorneys were required to review two binders of materials for the project. One of the other contract attorneys, Ms. Brasser, corroborated Ms. Thompson and Ms. Owen's testimony that the only written materials the contract attorneys reviewed was a memo prepared by Ms. Thompson that was approximately 10 to 20 pages long. Additionally, Ms. Thompson, Ms. Owen, Ms. Brasser and
Mr. Naumann all testified that the meetings between the contract attorneys and the supervisors were short and infrequent after the initial orientation.
There was also no evidence to support Respondent's claim that he experienced frequent and lengthy computer problems. The other contract attorneys and the supervisors consistently testified that there were computer problems; but that they did not occur daily and they did not cause a prolonged delay in the contract attorney's work. Ms. Thompson and Ms. Owen both testified that there was one time the system went down and caused them to send the contract attorneys home, but that they did not recall that occurring while Respondent was working on the project. Ms. Thompson testified that she did not recall Respondent reporting any computer problems to her and Ms. Yu also testified that Respondent never reported experiencing any computer difficulties to her during the time he worked on the Mayer Brown project.
We note that both Ms. Brasser and Mr. Naumann testified consistently with Respondent that the contract attorneys were required to re-review documents at some point during the project. Mr. Naumann also corroborated Respondent's testimony that the group of contract attorneys they worked with conferred with each other about the project. However, there was no evidence that re-reviewing documents or conferring with the other contract attorneys caused a similar discrepancy between the work the other contract attorneys billed for and the work they actually did. In fact, the evidence was to the contrary. Ms. Thompson testified that she searched the entire system and there were no other similar chunks of documents that had been assigned to the other contract attorneys which did not appear to be reviewed or coded. Ms. Thompson and Ms. Owen also testified that a review of the reports Ms. Thompson ran for Respondent and the other contract attorneys showed that Respondent was the only contract attorney that had discrepancies between the time he billed and the time he was working on the documents.
Respondent argued that Mr. Naumann's testimony that he saw Respondent at the office five to six hours each day during the project established that Respondent worked a minimum of 70 or 80 hours during the relevant time period. We did not find Mr. Naumann's testimony conclusive regarding the fact that Respondent was working during those hours because Mr. Naumann testified that he was not able to see Respondent from where he sat in the office. Mr. Naumann's testimony regarding whether Respondent was in the office on December 26, 2005, was also inconclusive because Mr. Naumann did not recall whether he was in the office that day.
Respondent's argument that it is not reasonable to assume that he would turn in over a thousand unedited documents and expect to get paid is not persuasive. Ms. Thompson and Ms. Owen testified that they did not do a quality control of the contract attorneys' work at the time the batches of documents were turned in. The evidence established that the quality control review which revealed the problem with Respondent's work was not done until early to mid January 2006 after Respondent's time on the project had ended. Additionally, Respondent's argument that there must have been some type of problem with the Case Data system or with the assignment of batches of documents which caused the documents assigned to him to appear unedited is also unpersuasive due to the fact that there were no other issues with the other contract attorneys' work.
We find the evidence showing Respondent worked far fewer hours than he reported is consistent and convincing. There were days when Respondent did no editing, and there were days that his hours between the first and last edit were far fewer than 10; and on those days the number of edits Respondent made was insubstantial. The only day Respondent appeared to put in 10 hours of work was on December 13, 2005. For these reasons, together with the fact that Respondent offered no credible evidence to show that he spent 10 hours a day working at Mayer
Brown, we are convinced that Respondent intentionally overbilled Ajilon and that his conduct was in violation of Rule 8.4(a)(4) because it involved a misrepresentation in connection with his time submissions.
We find the Administrator did not prove by clear and convincing evidence Respondent engaged in conduct that is prejudicial to the administration of justice or conduct which tends to defeat the administration of justice or to 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. Respondent's misconduct did not tend to defeat the administration of justice because there was no evidence Respondent's actions detracted from the integrity of the legal system or harmed any clients. See In re Storment, 203 Ill.2d 378, 399, 786 N.E.2d 963 (2002); In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840 (1990). There was also no evidence presented that anyone outside of the legal profession was aware of Respondent's misconduct or that Respondent's actions resulted in tarnishing the reputation of the legal profession. See generally In re Sutton, 01 CH 32, M.R. 18445 (January 23, 2003) (Review Bd. Dec.).
The purpose of this disciplinary system is to protect the public, maintain the integrity of the legal system, and safeguard the administration of justice. In re Gorecki, 208 Ill.2d 350, 360, 802 N.E.2d 1194 (2003); see also In re Howard, 188 Ill.2d 423, 434, 721 N.E.2d 1126 (1999). The goal is not to punish the attorney. In re Smith, 168 Ill.2d 269, 295, 659 N.E.2d 896 (1995). In determining the proper sanction, we consider the misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526 (1991).
Respondent's misconduct is mitigated by the fact that he has not been previously disciplined. See In re Demuth, 126 Ill. 2d 1, 14, 533 N.E.2d 867 (1988). Respondent also
presented four character witnesses and three of those witnesses testified to Respondent's reputation for honesty and integrity in the community. Additionally, Respondent presented testimony about his pro bono work and volunteer activities. See In re Lenz, 108 Ill.2d 445, 453-4, 484 N.E.2d 1093, 1097 (1985) (lack of prior discipline, community service and character testimony are mitigating factors).
We did not find any aggravating factors to Respondent's misconduct. Although Respondent falsely charged Ajilon for work he did not do, Ajilon was reimbursed for any damages it incurred when it took funds out of Respondent's pay check which had been directly deposited into his bank account and included holiday pay. There was also no evidence that Respondent's false billing harmed Ajilon's reputation with Mayer Brown since Ajilon reimbursed Mayer Brown for all of Respondent's time.
Having considered the mitigating factors and lack of any aggravating factors, we now must determine an appropriate sanction. The Administrator recommends that Respondent be suspended for five months, that he be required to make restitution to Ajilon in the amount of $1,330 for 38 hours of time he overbilled Ajilon for at $35 per hour, and that he be required to complete the ARDC Professional Responsibility Institute. In support of his recommendation the Administrator cited the following cases: In re Schiller, 98 CH 132, M.R. 158 (May 25, 1999); In re Garfinkle, 97 CH 104, M.R. 15297 (November 24, 1998); In re Hall Adams, III, 05 CH 30, M.R. 22150 (March 17, 2008).
The Respondent recommends a finding of no misconduct based on his argument that the Administrator did not meet his burden of proof. In support of his recommendation Respondent cited the following cases: In re Bub, 06 SH 07, M.R. 21636 (September 18, 2007); In re Sargent, 104 CH 129, M.R. 22219 (May 19, 2008); In re Wolf, 07 CH 49 (April 17, 2008); In re O'Neil,
04 CH 9, M.R. 19560 (September 27, 2004); In re Smith, 04 CH 64, M.R. 21240 (January 12, 2007); In re Berman, 04 CH 121, M.R. 20133 (May 20, 2005).
After considering the cases cited by the Administrator and Respondent, we conclude that a suspension is warranted in this case and recommend that Respondent be suspended for three months and until he attends the ARDC Professional Responsibility Institute. The cases cited by the Administrator in support of a five month suspension involve fraudulent conduct that is more egregious than Respondent's isolated incidence of false billing over a two week period. The attorney in Adams, 05 CH 30, was suspended for five and a half months for intentionally submitted false billing statements totaling over $28,000 over a period of three and a half years. The attorney in Garfinkle, 97 CH 104, was suspended for six months for submitting false time records for one client over a period of six months. Similarly, the attorney in Schiller, 98 CH 132, was suspended for five months for submitting false reimbursement requests over a two year period.
However, Respondent's misconduct is more serious than the attorneys in the cases cited by Respondent. The attorney in Bub, 06 SH 07, was censured for billing an excessive amount of hours for preparing a brief, but unlike Respondent was not found to have engaged in any dishonest or fraudulent conduct. The attorney in Sargent, 04 CH 129, was suspended for 30 days for billing for work she did not do, but in contrast to Respondent she was a young and inexperienced attorney and she did not directly benefit financially from her misconduct. Similarly, the attorney in O'Neil, 04 CH 9, was suspended for 30 days for misleading her employer and client about the status of a case and billing the client for work that she pretended to do on the case. There was no evidence the attorney in O'Neil received a direct financial benefit from her dishonest conduct and she was also a young attorney.
Accordingly, we conclude that a three month suspension with conditions is appropriate to address Respondent's intentional overbilling of Ajilon over a two week period. Although Respondent received a direct financial benefit from billing Ajilon for more hours than he worked, we do not recommend that Respondent be required to make restitution to Ajilon. Ajilon was compensated for Respondent's false billing when it removed funds from a pay check that had been directly deposited into Respondent's bank account, which included Respondent's holiday pay.
Considering the nature of the Respondent's misconduct, the evidence in mitigation and the lack of evidence in aggravation, this Panel recommends Respondent be suspended for three months and until he attends the ARDC Professional Responsibility Institute
Date Entered: June 2, 2009
|Champ W. Davis, Jr., Chair, with Donna L. Moore and Joseph J. Calvanico concurring|
1 Adm. Ex. 3 shows certain documents were accessed and edited more than once by Respondent in the same day.