Filed December 17, 2009

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

In the Matter of:

JOHN N. DORE,

Attorney-Respondent,

No. 661007.

Commission No. 07 CH 122

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on June 3 and August 27, 2009 at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of Henry T. Kelly, Chair, Thomas J. Potter and Frederich Bingham. Gary S. Rapaport represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent was represented by George B. Collins and Theresa M. Gronkiewicz.

PLEADINGS

On December 14, 2007 the Administrator filed a three-count Complaint against Respondent and on August 6, 2008, an amended four-count complaint was filed. The first three counts of the Amended Complaint alleged that Respondent, in representing various clients in litigation matters, asserted positions and arguments that were frivolous and served merely to harass the opposing parties and their counsel. Count III further alleged that Respondent made false statements concerning the integrity of a judge. Count IV alleged that Respondent made a false statement to a tribunal.

On September 5, 2008 Respondent filed an answer in which he admitted filing the pleadings referenced in the Amended Complaint and admitted taking other action in the various

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court cases, but denied that any of his positions were frivolous or asserted merely for harassment purposes. He further denied impugning the integrity of a judge, intentionally making any false statements, or engaging in any professional misconduct.

THE EVIDENCE

The Administrator called five witnesses and presented seventy-two exhibits which were admitted into evidence. Respondent testified on his own behalf, presented four additional witnesses and introduced thirteen exhibits into evidence.

Respondent's Background

Respondent testified that he is sixty-five years old and is married with five grown children. After being admitted to the Illinois bar in 1974, Respondent was employed by the Cook County State's Attorney's office for approximately five years. Upon leaving the State's Attorney's office, he worked for two different law firms before serving as in-house counsel for Firemen's Fund for eight or nine years. He then opened his own office and maintained a general civil practice. For several years Respondent sublet space from his brother and Edward Rothschild, who were partners in the law firm Dore and Rothschild. (Tr. 251-56, 270, 342).

Count I

Beginning in the 1970s, Respondent had a friendship with attorney Paul Greviskes and his wife, Angelita Greviskes ("Angelita"). On January 13, 2003, Respondent filed an employment discrimination suit in the United Stated District Court for the Northern District of Illinois on Angelita's behalf against her former employer, Universities Research Associates, Inc. d/b/a Fermilab ("URA"). Several months later he propounded a request for the production of documents requesting, among other things, personnel and payroll records related to one of Angelita's co-workers, Terry Erickson. URA produced Erickson's personnel file which included

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Erickson's social security number and documents that bore her signature. The personnel file did not include copies of Erickson's monthly timesheets. (Adm. Exs. 2, 4).

Discovery in Angelita's case was closed on October 27, 2003, and on that date URA filed a motion for summary judgment. On November 18, 2003, Respondent filed a motion for an extension of time to December 29, 2003 to file a response to URA's motion for summary judgment. At no time prior to November 24, 2003, did Respondent inform URA or its counsel that its production of records in response to Respondent's request to produce was incomplete or that Erickson's monthly timesheets had been omitted. (Adm. Ex. 1).

On December 1, 2003 Karen Osgood, an attorney for the law firm representing URA, sent a letter to Respondent and Paul Greviskes. The letter stated that on November 24, 2003 her client received a copy of a fax purportedly sent and signed by Terry Erickson with instructions to mail copies of Erickson's monthly timesheets to "Dore and Rothchild, c/o P.O. Box 393, Batavia, IL" by November 30, 2003, or to fax them to 630-879-8390. The fax included Erickson's social security number. A second, nearly identical, fax was received by URA on November 25, 2003. Osgood's letter stated that Erickson had not signed either of the faxes, had not given authority to another person to sign for her, and had not instructed URA to release records relating to her employment to Respondent or the Greviskeses. According to the letter, the Batavia address and fax number referenced in the transmittals belonged to the law firm of Paul Greviskes, and the faxes were transmitted from the home of the Greviskeses. Osgood conveyed her concern that "one or both of you were involved" in the forged documents and requested a written explanation prior to bringing the matter to the attention of the courts. (Adm. Exs. 5-7).

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Upon receiving Osgood's letter, Respondent telephoned her and left a voice message. A transcription of that message indicates that Respondent advised her not to "proceed any further" because "commonsense would have told you that I was not involved with anything." Respondent requested a written apology from Osgood regarding her allegations of the forged documents "as soon as possible." (Adm. Ex. 8).

On December 11, 2003, Osgood sent another letter to Respondent requesting an immediate written explanation of Angelita's involvement in the faxes. The letter stated that copies of URA's motions to dismiss were enclosed but had not yet been filed because URA preferred to resolve the issue without court involvement. (Adm. Ex. 9).

On December 16, 2003, URA filed a motion requesting dismissal of Angelita's case as a sanction for the alleged forgeries of Erickson's signatures, the release of Erickson's social security number in violation of a protective order which prohibited disclosure of protected information supplied during the discovery process, and inappropriate use of channels to discover information after discovery was closed. The motion asserted that the court had authority to dismiss the action under both Rule 37(b)(2)(c) which allows sanctions for failure to comply with discovery orders, and under its inherent power to address egregious conduct regarding discovery matters. On December 17, 2003, the court authorized URA to conduct discovery on the allegations of its motion. Thereafter, the court scheduled an evidentiary hearing for May 26, 2003 on URA's motion to dismiss. (Adm. Exs. 1, 10).

On May 11, 2004, Osgood caused a subpoena to be served upon Paul Greviskes that required him to appear and testify at the evidentiary hearing on May 26. On May 14, 2004, Respondent caused subpoenas to be served upon Osgood and Ron Paul, URA's payroll department manager, requiring them to appear and testify at the hearing. Respondent's subpoena

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to Paul required him to produce payroll records related to URA employee Terry Erickson. (Adm. Exs. 11-13).

On May 17, 2004, URA filed a motion to quash the subpoenas served upon Osgood and Paul. On that same date, Respondent filed a pleading entitled "Motions to Dismiss and to Quash the Trial Subpoena" in which he requested that the proceedings on URA's motion to dismiss be terminated because the district court lacked jurisdiction of the subject matter. He argued that while URA relied upon Rule 37(b)(2)(c) for the court's authority to impose sanctions for failure to comply with a protective order, his client had not violated the protective order because the alleged subject matter was never designated as being protected information in accord with the protective order. In addition, he asserted that the inaccuracy of the factual premises asserted by URA raised the legal question as to the authority of the court to entertain URA's motion to dismiss. As an alternative to dismissal, Respondent asked that the subpoena served upon Paul Greviskes be quashed on the basis that his testimony would be subject to attorney-client or marital communications privileges. (Adm. Ex. 14).

On May 20, 2004 a hearing was held on URA's motion to quash and Respondent's motion to dismiss and quash. With respect to Respondent's challenge to jurisdiction, the court stated that it had inherent authority to determine if fraudulent conduct had occurred, and the fine points of Rule 37 were not at issue. The court further indicated that it had explained his reasoning to Respondent on prior occasions. The court granted URA's motion to quash the Osgood and Paul subpoenas, without prejudice to Greviskes's ability to raise relevant issues at the hearing, and denied Respondent's motion to dismiss and quash Paul Greviskes' subpoena. The court explained that Paul Greviskes could assert privileges relating to his communications,

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but he could be examined on other subjects that do not involve marital or attorney-client communications. (Adm. Ex. 17; Resp. Ex. 8).

Immediately following the court's ruling, Respondent filed a motion to dismiss the evidentiary hearing scheduled for May 26, 2004, and again challenged the district court's jurisdiction. The court denied Respondent's motion and on May 26, 2004, a hearing was held during which testimony and evidence in relation to URA's motion to dismiss was received. On June 10, 2004, Respondent filed a post-trial memorandum arguing that the district court lacked jurisdiction to conduct the hearing under Rule 37(b)(2)(c), the court did not have inherent authority to impose punishment absent the initiation of a contempt proceeding, and due process standards were never satisfied. (Adm. Exs. 1, 16).

On June 16, 2004, the district court issued a memorandum opinion and order in which it found that the protective order was not violated because the information regarding Erickson's social security number was not marked "confidential," and the order did not prohibit disclosure of information to an entity which already possessed the information. The court further found, however, that Angelita engaged in "deceptive, fraudulent, criminal and inexcusable" conduct in sending the fraudulent faxes to URA and attempting to conceal her actions, and that her action "deserves nothing less than the most severe sanction of dismissal with prejudice." The court stated that it possessed the inherent authority to impose such a sanction. With respect to the proceedings in general, the court observed:

In addition to plaintiff's direct misconduct, her husband's and lawyer's conduct throughout the proceedings on defendant's motion to dismiss have been aimed at preventing the court from inquiring into the matter and determining the facts. Beginning with Mr. Dore's churlish response to defendant's query about the November faxes. . . .to Mr. Dore's inept attempts to derail the evidentiary hearing, one attempted roadblock after another has been developed to prevent this court from reaching the conclusions it has reached herein.

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Further, the court noted that Respondent's due process argument in the post-trial brief "demonstrates his misconception of the nature and gravity of these proceedings." Greviskes v. Universities Research Ass'n, 226 F.R.D. 595 (N.D. Ill. 2004). (Adm. Ex. 19).

Angelita was ordered to pay URA's attorney's fees in connection with the motion to dismiss. Thereafter, on October 25, 2004, the Court issued a second memorandum opinion in which it dismissed Angelita's opposition to payment of the fees as "patently frivolous" and awarded attorney fees in the amount of $54,613.50 and costs in the amount of $14,435.95 to URA. The Court noted that Angelita and Respondent failed to "understand their obligations in these proceedings" and had thrown up "every roadblock [they] could think of." Greviskes v. Universities Research Ass'n, 342 F. Supp. 763 (N.D. Ill. 2004). (Adm. Ex. 26).

Respondent filed notices of appeal from the court's decisions of June 16, 2004 and October 25, 2004 and on November 9, 2004, the two appeals were consolidated. On December 10, 2004 he filed an appellate brief on behalf of Greviskes. (Adm. Exs. 20, 27, 28).

On August 8, 2005, the Seventh Circuit issued an opinion in which it affirmed the lower court's dismissal of the complaint and the award of attorney fees and costs. Greviskes v. Universities Research Ass'n., 417 F. 3d 752 (7th Cir. 2005). The Seventh Circuit stated that Angelita's arguments regarding jurisdiction and due process were "often incoherent, unsubstantiated, and representative of a continuing litigation practice which evinces bad faith," Because the appeal was "frivolous on all claims" and "baseless," the court ordered her to show cause why reasonable attorney fees and costs related to the appeal should not be imposed. On February 13, 2006, the Seventh Circuit entered an order requiring Angelita to pay URA $25,000.00 as "an appropriate sanction for the conduct" relating to the appeal. Greviskes v. Universities Research Ass'n, No. 03 C 257 (7th Cir., 2006). (Adm. Exs. 31, 32).

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Thomas Piskorski

Thomas Piskorski, a partner of the law firm Seyfarth, Shaw ("Seyfarth"), testified he represented URA in litigation brought by Angelita Greviskes. Karen Osgood was the primary associate on the case. (Tr. 48-49).

With respect to the letter that was faxed to Respondent from Osgood suggesting that Respondent or his client were involved in forging documents, Piskorski stated that the facts indicated Respondent may have been involved, and the letter was asking for an explanation. Piskorski noted that the discovery material produced to Respondent was material used in connection with the forgeries. (Tr. 58; Adm. Ex. 7).

Piskorski recalled that Respondent questioned the authority of the court to sanction Angelita, and that the objection was rejected as being nonsensical. The court held that it had the inherent power to dismiss the case and did so. With respect to the fees and costs assessed against Respondent's client by the district and appellate courts, Piskorski stated they were based upon the amount paid to Seyfarth by URA. (Tr. 50, 59-60).

Respondent

Respondent testified he agreed to represent Angelita Greviskes in a discrimination action and filed an action in good faith on her behalf. On December 1, 2003 he received the letter from Karen Osgood regarding faxes sent to the personnel department of URA. Respondent denied having any knowledge of the faxes prior to receiving Osgood's letter and stated that nothing in the faxes or letter indicated he had any awareness of or involvement in the forged documents. With respect to the reference in the faxes to the law firm of "Dore and Rothchild" or "Rothchild and Dore," Respondent denied he was ever a partner in that firm, and further stated that the Dore and Rothschild firm ceased to function as a partnership when his brother died in 1991.

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Respondent did not inform opposing counsel that he was not the Dore of Dore and Rothschild. (Tr. 258-64, 271, 341, 344; Adm. Ex. 7).

Respondent acknowledged leaving a telephone message for Osgood regarding her letter, but stated the message was neither insulting nor derogatory. He believed Osgood was accusing him of a felony, and he was asking for an apology and informing her that she should not proceed with accusations against him because he was not involved with the faxes. (Tr. 264-65; Adm. Ex. 8).

Respondent received a subsequent letter from Osgood asking for a more thorough explanation of Angelita's involvement with the November faxes. The letter made reference to an enclosed motion to dismiss, but Respondent denied that he received any enclosure with the letter. (Tr. 343; Adm. Ex. 9).

Regarding URA's motion to dismiss filed on December 16, 2003, Respondent took issue with the allegation that he failed to explain or deny his or the plaintiff's involvement in the two faxes, and that plaintiff or someone acting at her directive violated an existing protective order by releasing Erickson's social security number. Respondent stated he had made an absolute denial of his involvement in his telephone message to Osgood. He had no knowledge whether Angelita denied her involvement, and stated he did not communicate with her regarding the matter. As to the protective order, Respondent noted that the documents provided to him by defense counsel, including the information regarding Erickson's social security number, were not stamped "confidential" as required by the protective order, and ultimately the judge ruled the protective order was not violated. (Tr. 266-68, 340; Adm. Ex. 10).

With respect to the subpoenas Respondent served on Ron Paul and Karen Osgood that were quashed without prejudice, Respondent denied that the subpoenas were retaliatory. He

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explained that Ron Paul was identified in Osgood's motion as a principal witness regarding the receipt of the faxes and how the faxes were distributed, and therefore Respondent believed Paul would be a central person in any hearing. With respect to Osgood, Respondent believed she was the person who collected the information included in her letter and motion, and therefore she should have been a witness as to how the information was obtained. Respondent further stated that because he had not received any responses to subpoenas served by Osgood, he subpoenaed her for that information. (Tr. 271-73).

Respondent noted that Osgood had caused a subpoena to be issued to Dore and Rothschild, but that subpoena was quashed. Osgood then caused a subpoena to be issued to John Dore & Associates. Respondent stated he was never deposed or called as a witness regarding the faxes. He denied having any knowledge of the replacement of a telephone line in Angelita's house or AT&T's objection to the release of information. He believed the case was made more difficult because Angelita and her husband declined to testify on material matters. Respondent stated he did not advise them to assert privileges, but defended their right to do so as being non-obstructive. (Tr. 270, 274; Resp. Ex. 4-6).

With respect to Respondent's repeated challenges to the court's jurisdiction to allow discovery and conduct a hearing on the issue of who was responsible for the faxes, he stated that URA did not file any pleading which set forth a basis for applying or requesting the federal court to exercise its inherent authority, and the case law cited by URA did not apply to the circumstances of Angelita's case. He stated that the court's jurisdiction could only arise where an actual fact circumstance triggers the exercise of the court's authority. As to Angelita's case, everything occurred in Kane County and nothing had ever been presented to the federal court to affect any portion of the federal court proceedings. Therefore, Respondent felt the federal court

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did not have the jurisdiction to exercise its inherent authority with respect to the subject matter that was presented. Despite Respondent's best efforts, Judge Gettleman disagreed with his position and imposed sanctions against Angelita. Respondent denied that his filings were designed to harass anyone. (Tr. 268-70, 275, 329, 346-47).

With respect to the appeal of Judge Gettleman's decision, Respondent stated that he followed his client's instruction to take the appeal, 276-77, but he also believed the appeal had merit. The Seventh Circuit did not agree with his positions, however, and imposed a further sanction on Angelita. (Tr. 276-77, 350).

When Respondent was asked if he still contends that the district court's jurisdiction was not properly invoked, he stated that the issue has now been determined by Judge Gettleman and the Seventh Circuit and he has to abide by those decisions. Respondent denied that any of his actions were taken with the intent to thwart, delay, or harm the judicial process and stated that no motion for sanctions was ever filed against him. Prior to Angelita's case, Respondent had only limited experience in federal court and did not regularly handle discrimination cases. (Tr. 261, 277-78, 349).

Count II

On December 13, 2004, Respondent filed a defamation suit on his own behalf in the Circuit Court of Cook County against attorneys Karen Osgood and Thomas Piskorski, their law firm Seyfarth Shaw, URA in-house attorney David Gassman and URA. Respondent alleged, among other things, that he was defamed in the course of the Greviskes litigation by Osgood's December 1, 2003 letter which accused him and attorney Paul Greviskes of participating in forgeries; Osgood's and Piskorski's inclusion of the December 1, 2003 letter in subsequent court

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filings; and the defendants' discussion of Respondent's misconduct with other URA attorneys and certain URA employees. (Adm. Ex. 33).

On February 1, 2005, Respondent filed an amended complaint. The amended complaint was dismissed without prejudice and on June 24, 2005, a second amended complaint was filed. In the second amended complaint, Respondent added allegations that Osgood, Piskorski and Seyfarth were liable for invasion of privacy because the Chicago Daily Law Bulletin publicly reported Judge Gettleman's June 16, 2004 memorandum opinion which criticized Respondent. (Adm. Exs. 33, 34; Resp. Ex. 10).

On July 20, 2005, Osgood, Piskorski and Seyfarth filed a motion to dismiss the second amended complaint and a motion for sanctions in which they argued that Respondent's lawsuit was frivolous. Gassman and URA also filed a motion to dismiss. On October 26, 2005, the circuit court found that the attorney litigation privilege barred the defamation and invasion of privacy claims and dismissed Respondent's second amended complaint with prejudice. (Adm. Exs. 35, 36, 38).

On January 27, 2006, the court issued a memorandum opinion and order allowing defendants' motion for sanctions. The opinion stated, in part:

[T]he Court finds that the Plaintiff's cause of action as alleged was not well-founded in existing law. The Plaintiff should have known that an absolute privilege would have applied in this case to bar the action. Despite this, the Plaintiff made three attempts at filing these causes of action. Further, the circumstances here show that the Plaintiff filed this action to retaliate or harass his opposing counsel from a previous federal action. This suit should not have been filed in good faith.

On March 3, 2006, the court ordered Respondent to pay $21,468.04 in attorneys' fees to Osgood, Piskorski and Seyfarth. (Adm. Exs. 40, 41).

On March 28, 2006, Respondent filed a notice of appeal from the circuit court's orders. On December 31, 2007 the Illinois Appellate Court affirmed the orders dismissing Respondent's

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defamation action and imposing sanctions. The appellate court found that the lower court had properly applied the attorney litigation privilege. (Adm. Exs. 33, 42).

Thomas Piskorski

Thomas Piskorski, an attorney with the Seyfarth Shaw law firm, testified that he, Karen Osgood and the Seyfarth firm were defendants in the defamation and invasion of privacy action brought by Respondent. They were represented by counsel provided by the firm's insurance carrier. Piskorski felt the litigation had an impact on him in that he had to meet with counsel and dedicate time and effort to explaining the situation. Further, he was concerned about the effect the litigation might have on any client relationships, the firm's relationship with its insurer, and on his own career. (Tr. 51-53).

Respondent

Respondent testified he was seriously and personally offended by the suggestion in Osgood's December 2003 letter that he was involved in forging documents. When he filed an action for defamation, he was aware of the absolute judicial privilege but did not believe the letter was sheltered by that privilege. He understood Osgood's letter to be an accusation of perjury, which is defamatory per se, and pointed out that the letter was totally separate and distinct from any court proceedings. The accusations were published when the defendant's motion to dismiss was filed. Respondent felt he had a non-frivolous, arguable case for defamation. (Tr. 278-79, 324-26, 328; Adm. Ex. 7).

Respondent filed the defamation complaint himself but when it was dismissed with leave to replead, he retained competent counsel, Mitchell Asher, who filed the second amended complaint. The circuit court dismissed the second amended complaint with sanctions on the basis that the letter was subject to some form of absolute privilege. Respondent stated he

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appealed the decision himself, and the appellate court affirmed the dismissal on the ground that the letter was not defamatory. Respondent noted that the appellate court did not impose any sanctions for the appeal. (Tr. 281-82, 327, 380; Adm. Ex. 34).

Count III

In 2000, Cerniglia Company, Inc. ("Cerniglia") was a contractor hired to install water mains in the Village of Brookfield. Cerniglia subcontracted to Pezza Landscape, Inc. ("Pezza") for restorative landscape work in connection with the project. A dispute arose between Cerniglia and Pezza, and in 2001, Pezza ceased work on the project.

On February 14, 2002, attorney Paul Greviskes filed a lawsuit in the Kane County Circuit Court on behalf of Pezza against Cerniglia for breach of contract, alleging that Cerniglia owed Pezza $14,859.96 for landscaping materials and labor. Attorneys Gregory Adamski, Karen Conti, and Edward Bogle of the law firm Adamski and Conti entered appearances for Cerniglia. (Adm. Ex. 44).

On March 20, 2002, on defendant's motion, the case was transferred from Kane County to the Circuit Court of Cook County. On May 23, 2002, Cerniglia filed an answer denying Pezza's charges and also a "countercomplaint" requesting damages in the amount of $23,000.00 as a result of alleged incomplete and unsatisfactory work by Pezza. (Adm. Ex. 45).

On May 28, 2002, Respondent filed an appearance on behalf of Pezza. At no time after May 28, 2002, did Paul Greviskes file any pleading or perform any further legal work on behalf of Pezza in relation to the case. Beginning on that date, Respondent solely represented Pezza in the cause of action.

On March 18, 2003 the matter proceeded to arbitration, and an award was entered in favor of Pezza in the amount of $14,859.96. On April 29, 2003 the court entered judgment on

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the award. Cerniglia filed a notice of appeal, and on March 22, 2004 the appellate court reversed the judgment and remanded the matter to the lower court. (Adm. Ex. 43).

On November 4, 2004, Cerniglia filed a disclosure of opinion witnesses and descriptions of their testimony pursuant to Illinois Supreme Court Rule 213. On November 17, 2004, Respondent filed a "Motion to Strike and to Bar," in which he requested the court to strike Cerniglia's Rule 213 disclosure and bar the testimony of those individuals identified in the disclosure. In the motion, Respondent alleged, among other things, that the statements and opinions that the disclosure described were "made up and supplied by the Defendant's Attorneys," "without factual basis," and "the product of mere invention." The court denied Respondent's motion to strike and bar. (Adm. Ex. 47, 48, 50).

Between December 16 and December 21, 2004, Circuit Judge Francis J. Dolan conducted a bench trial in the Pezza case. Wayne Pesek, a management consultant retained by Cerniglia, sat at Cerniglia's counsel table and also testified on Cerniglia's behalf. In the course of the trial, the court denied motions by Respondent to bar Pesek from sitting at counsel's table and to bar him from testifying. (Adm. Ex. 51).

On December 23, 2004 in open court, Judge Dolan announced his ruling against Pezza on its complaint and in favor of Cerniglia on its counterclaim, and ordered Pezza to pay damages in the amount of $18,192.00 to Cerniglia, plus costs of the suit. Respondent then stated in open court that attorneys Adamski and Conti had suborned perjury on the part of Pesek in the course of the trial. (Adm. Ex. 52).

In response to Respondent's accusation of subornation of perjury, the court conducted a hearing. According to the court's certified report of proceedings, it found that Respondent's

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assertion of subornation of perjury had no basis and that issues regarding findings related to evidentiary rulings and Pesek's credibility could be raised on appeal. (Adm. Ex. 70).

On January 18, 2005, Respondent filed a post-trial motion in which he asked the court to set aside the judgment for Cerniglia and enter judgment in favor of Pezza or grant a new trial. Respondent's post-trial motion included the following representations:

  1. The trial court "chose to rule contrary to the trial evidence, or to accept false testimony as the basis for its decision in favor of the Defendant."

  2. "The Court did not apply or understand the need to apply the Rules of Evidence."

  3. The court "allowed the introduction of false testimony from a witness who should have been excluded from the trial based on the motion to exclude. Mr. Wayne Pesek was to provide opinion testimony, and he was not an officer, employee or director of the Defendant. Despite Plaintiff's objections, he was allowed to remain in the courtroom during the trial to hear the testimony of other witnesses and then fabricate statements based on the prior testimony. The Court accepted that patently fabricated testimony as the bases for its rulings."

  4. "Established legal principles were ignored or basically disregarded by the Court. This created the opportunity for the falsification of the testimony on which the judgment is based. The fact that the testimony was manipulated and contrived was borne out by the Court's attempt to hold a hearing on the basis of Himel [sic] to exonerate the Defendant's Attorneys for the process of creating false testimony. The Court chose to disaffirm proper and controlling legal principles and to accept pretense as the factual bases for the decision."

  5. "Despite the fact of Plaintiff's objections, Mr. Pesek was permitted to cover any defects in the Defendant's case by presenting fabricated evidence."

  6. "The absolute failure of the proofs on behalf of the Defendant caused what constitutes a judicial conversion. The Court awarded Defendant $2,200 for the unsupported economic damages testified to by Mr. Pesek. The Court is without any authority to become the means to effect a unlawful conversion of Plaintiff's property."

  7. "Rather than deny the admission of the document the Court admitted it and then circled its copy to pretend to ignore the hearsay statements. It thereby became an advocate in the Defendant's case. The Court is not authorized to excise parts of a hearsay document and then admit the remainder to the hearsay items based on the objectionable matter. The Court can not be

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objective and independent when it elects to manipulate the evidence in favor of the Defendant."

  1. "The Court was obligated not to allow the independence of the trial process to be tainted by the attendance of Mr. Pesek. The Court was advised that the specific intent was to allow him to create fabricated testimony at the hearing."

(Adm. Ex. 53).

On January 25, 2005, Cerniglia filed a motion to strike Respondent's post-trial motion on the asserted basis that the lawsuit had been settled because Pezza had paid the judgment and Cerniglia had waived costs and sanctions. Cerniglia's motion included an affidavit executed by Pesek. On February 14, 2005, Respondent filed a response disputing that the litigation was settled and asserting, among other things, that Pesek gave perjured testimony at trial and opposing counsel suborned the perjured testimony. (Adm. Ex. 54, 55).

Also on February 14, 2005, Cerniglia filed a motion for sanctions against Respondent and Pezza under Supreme Court Rule 137. The motion alleged that Respondent's repeated assertions that Pesek committed perjury, that defense counsel suborned the perjury, and that the court engaged in judicial conversion were false and malicious. (Adm. Ex. 56).

On February 22, 2005, Respondent filed a response to Cerniglia's motion for sanctions and a reply in support of Pezza's post-trial motion. Respondent repeated his accusations of perjury and subornation of perjury, and asserted that the court conducted the Himmel hearing on December 23, 2004, with the purpose and intent "to exonerate Adamski and Conti." (Adm. Ex. 57).

On May 16, 2005, Respondent filed a "Motion to Strike the Affidavit of Wayne Pesek" which stated, in part:

Whatever is necessary, Pesek will relate it to the Court, whether it is factually true or not. This was the same attitude that made the subornation statements available for presentation at the trial. The Affidavit repeats the same illegal approach to a court proceeding that was evident at the trial.

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In the motion, Respondent requested an award of legal fees under Rule 137. (Adm. Ex. 61).

On June 10, 2005, during a hearing on Respondent's motion to strike the Pesek affidavit, Respondent asserted, in open court: "What I'm saying to you is this affidavit was prepared, submitted by Mr. Pesek, who we know will sign and state - fabricate anything." The court stopped Respondent and instructed him to cease making unsupported accusations of perjury.

On June 27, 2005, Respondent sent a letter to the Judicial Inquiry Board that complained of Judge Dolan's conduct. In the letter, Respondent accused Judge Dolan of attempting to "obstruct justice" in relation to subornation of perjury on the part of Cerniglia's counsel. (Adm. Ex. 63).

On September 16, 2005, Judge Dolan entered a memorandum order that denied Cerniglia's motion to strike Respondent's post-trial motion to set aside the judgment or grant a new trial, and denied, as moot, Respondent's motion to strike Pesek's affidavit. The court continued hearing on the other pending motions. Thereafter on December 21, 2005, Judge Dolan entered a memorandum order denying Respondent's post-trial motion. (Adm. Exs. 64, 65).

In January 2006, Respondent filed a "Motion for Substitution of Judges for Cause" in which he asserted, among other things, that Judge Dolan "acted as the advocate for the Defendant," "chose to change the trial evidence," "chose to overlook the actual trial evidence," and demonstrated "want of objectivity." On January 31, 2006, Judge Michael Healy entered an order denying Respondent's motion for substitution of judges. (Adm. Exs. 66, 68).

On July 13, 2006, Judge Dolan entered a memorandum order granting Cerniglia's motion for sanctions under Rule 137 and denying Respondent's request for sanctions. The order stated that Respondent's pleadings following the trial "are replete with factual and evidentiary distortions and reckless mischaracterizations. Moreover, the record is peppered with false and

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baseless claims leveled against both opposing counsel and the Court." The court also noted "numerous and continued false and reckless allegations, made by plaintiff's counsel directed at the Court's integrity." The court awarded Adamski $500.00, and directed that copies of its memorandum orders be sent to the Illinois Attorney Registration and Disciplinary Commission for its review and any action it deems appropriate. (Adm. Ex. 69).

On August 11, 2006, Respondent filed a notice of appeal. On May 16, 2008 the Illinois Appellate Court issued an opinion in which it affirmed Judge Dolan's judgment against Pezza and in favor of Cerniglia and affirmed the award of sanctions against Pezza and Respondent. (Adm. Ex. 74).

Wayne Pesek

Wayne Pesek testified that in 2001 he worked for Cerniglia Company as a project manager regarding the company's municipal water and sewer work. He was paid on a monthly retainer basis and was not an employee of the company. One of Pesek's projects involved work performed by Pezza Landscape, as a subcontractor of Cerniglia. Pezza stated that after several months he determined that Pezza was not able to perform satisfactorily, and he recommended that Pezza be replaced by Frank's Landscaping. With respect to his statement in a prior deposition that Frank's was on board before he began working for Cerniglia, Pesek explained that Cerniglia had engaged Frank's to work in other geographic areas within the Village of Brookfield to supplement Pezza's efforts. (Tr. 95-96, 105, 107, 113-14).

With respect to the lawsuit filed by Pezza against Cerniglia, Pesek testified he was designated by Cerniglia to be the company's trial representative and in that role he accompanied the company's attorneys, Greg Adamski and Karen Conti, to the hearing and sat at counsel table. The owners of the company were not present at all times. During the trial, Pesek exchanged

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notes with the attorneys and gave testimony that was truthful and honest. The Cerniglia attorneys did not ask him to testify to anything that was not truthful, nor did he conspire with them to give false opinions or false testimony. With respect to documents entitled "Defendant's Witness Disclosures" and "Amended Affidavit of Wayne Pesek," Pesek denied that any of his opinions or statements in those documents was untruthful. He also denied that he listened to the testimony of other witnesses and then fabricated statements as needed, or that he acted as a super-witness to relate information to the Court. Pesek acknowledged that the trial was an adversarial proceeding in which the attorneys challenge statements on behalf of their clients. (Tr. 96-108; Adm. Ex. 47, 60).

Pesek stated that he was upset to learn of Respondent's accusations against him and has taken the charges very personally. He does not know if he has lost any business because of any accusations made in the Pezza case. (Tr. 103-04, 109).

Gregory Adamski

Gregory Adamski, an Illinois attorney, testified that his firm represented Cerniglia Company in litigation with Pezza Landscape. In connection with that case, Adamski authored documents entitled "Witness Disclosure" and "Amended Witness Disclosure" in which he summarized the opinions of witnesses. He stated that he prepared the documents after speaking to the witnesses regarding their knowledge of the facts and their opinions with respect to the property. He denied inventing any of those opinions. With respect to arguments made by Respondent in a motion to strike and bar the witness disclosure, Adamski acknowledged that he used identical language to describe the opinions of several witnesses, but he also stated that the witnesses agreed with each other and held the same opinions. Adamski stated that the

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amendment was necessary because the original witness disclosure had not been verified. (Tr. 124-25, 147-50, 156-57; Adm. Ex. 47-49).

Adamski stated that Wayne Pesek, who worked for Cerniglia and had principal responsibility for the Brookfield project, was designated to be the company's representative at trial and to sit at counsel table. Respondent objected to Pesek's being in the courtroom on the basis that Pesek was a consultant to Cerniglia, rather than an employee, but the Court allowed him to stay in the courtroom. Adamski denied that Pesek's purpose in the courtroom was to hear testimony of other witnesses and then fabricate statements based on the testimony he heard. (Tr. 126, 128, 136).

Adamski acknowledged that he conversed with Pesek and exchanged notes with him during the trial. He denied that he asked Pesek to provide untruthful testimony or that Pesek gave untruthful testimony. Adamski did not attempt to suborn any perjury and had no knowledge of Pesek's engaging in any perjury. (Tr. 126-27, 130).

Adamski testified that when Pesek was called as a witness, he took a document to the witness stand. The document, which was a damage calculation, had originated from Respondent but Adamski and Pesek recalculated the damages, and Adamski made notes on the document. Adamski denied knowing that Pesek was taking the document to the witness stand, and he did not see Pesek refer to the document during his direct examination of Pesek. When Pesek attempted to refer to the document on cross-examination, Respondent asked to see it. Adamski argued that the document contained work product, and the Court refused Respondent's request. Adamski felt that Respondent did not understand that the information on the document was protected even though the document had been generated by Respondent. Adamski stated that Respondent repeatedly objected to not being allowed to view the document and continued to

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object in his post trial motions. Adamski noted that Respondent's actions were unlike anything he had ever seen. (Tr. 137-42).

Adamski testified that Respondent also objected to the admission of a letter from Cerniglia to Pezza which set forth Cerniglia's position with respect to the dispute. The document was admitted with the third page, which proposed the terms of a settlement, redacted. Adamski stated the document was not hearsay because it was created in the ordinary course of business. He did not believe Respondent's objection was sincere. (Tr. 153-55; Resp. Ex. 12).

Adamski recalled that Respondent objected to the court's consideration of invoices that were not marked "paid." Adamski did not know if his client produced the cancelled checks but noted that two witnesses had testified that the invoices were paid. (Tr. 151; Resp. Ex. 11).

Adamski testified that Judge Dolan held a hearing with respect to accusations by Respondent that Pesek had engaged in perjury and that the perjury was suborned by counsel. At the end of the hearing Adamski requested the court to make a determination that he had not suborned perjury, but he did not ask the court to conduct a sham proceeding for the purpose of being exonerated. Adamski stated that Respondent's accusations that he suborned perjury were outrageous, untrue and unfounded, and they besmirched his reputation. (Tr. 131-33; Adm. Ex. 66).

Adamski identified a document prepared by his associate Karen Conti entitled "Affidavit of Wayne Pesek" which was attached to Cerniglia's motion to strike Pezza's post-trial motion. Adamski stated that the assertions in the affidavit were true to the best of his knowledge. (Tr. 131; Adm. Ex. 60).

Adamski testified that at some point he petitioned the Court to award sanctions against Respondent for his conduct in the case. On July 13, 2006 the Court ordered Respondent to pay

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$500, but the order was stayed while the appeal was pending. Adamski recalled that Respondent advised Adamski if he attempted to collect the money, Respondent would take action against him. Adamski finally received payment on June 2, 2009. (Tr. 146, 150).

Adamski stated he does not approve of Respondent and believes his actions fall outside the normal gambit of practicing law. The Pezza case should have been tried in one day but because of Respondent's conduct and constant objections, the trial lasted for four or five days. Similarly, Respondent's first two appellate briefs were stricken because they were incomprehensible and raised issues that were improper. Adamski stated that lawyers should work together and not cause undue expense to others. He acknowledged, however, that Respondent believed in his client's case and had initially obtained an arbitration award in his client's favor. Further, Adamski stated he has seen other lawyers like Respondent. (Tr. 134, 156, 158-59, 163).

Francis Dolan

Judge Francis Dolan testified he recently retired from the bench of the Circuit Court of Cook County after serving as a judge since 1999. During his tenure on the bench, he presided over the action brought by Pezza Landscape against Cerniglia Company. He described the litigation as spirited and acknowledged that at one of the hearings in the case, he observed that he had never had a case quite as contentious. (Tr. 165, 167, 175).

Judge Dolan recalled Respondent alleging at the end of the trial that Wayne Pesek had engaged in perjury and that the Cerniglia lawyers had suborned Pesek's perjury. Judge Dolan held a hearing on the matter to determine if there was any substance to the allegations. He denied that the purpose of the hearing had anything to do with one party or the other. (Tr. 169-71; Adm. Ex. 70).

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Judge Dolan stated that Respondent, in post-trial pleadings, accused him of failing to be impartial and of having an interest in the case that would inure to the benefit of Cerniglia. Judge Dolan denied that he ever ruled contrary to the evidence, accepted false testimony, deliberately failed to apply or understand the need to apply the rules of evidence, overlooked any significant evidence, manipulated evidence to favor one side, or was biased in favor of Cerniglia. In preparing a bystander's report of witness testimony, he relied primarily upon his own trial notes. (Tr. 167-68, 172, 176-77).

Because Judge Dolan believed that Respondent crossed the line that separates vigorous advocacy and objectionable conduct, he referred the matter to the ARDC for further review. He stated he took Respondent's personal attacks to heart but because the accusations were so unusual, he did not feel they impacted his actions in the case. (Tr. 172, 179-80; Adm. Ex. 69).

Respondent

Respondent testified he represented Pezza Landscape in an action against Cerniglia, and obtained an arbitration award of $14,859.00 for his client. Ultimately the award was reversed, and the case was assigned to Judge Dolan. (Tr. 283-85).

Prior to trial, Respondent received summaries of proposed witness testimony from opposing counsel, Gregory Adamski. The identical nature of the summaries was an occurrence that Respondent had not previously encountered, and which he felt was impossible. Respondent also noted that opposing counsel produced documents on the day of trial even though counsel had previously tendered affidavits attesting to the completeness of the document production. (Tr. 291-93, 306).

When the Pezza case went to trial, Respondent strenuously objected to Wayne Pesek's sitting at defense counsel table because Pesek was not an officer or employee of Cerniglia.

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Respondent also felt that Pesek was going to change his deposition testimony and present a different and undisclosed statement that was contrary to what Respondent had learned through the discovery process. Judge Dolan overruled Respondent's objection. (Tr. 286-88).

Respondent testified that during Pesek's testimony regarding damages to Cerniglia, Pesek read notes from a pad of paper in his hand. Respondent requested permission to examine Pesek regarding the notes, but the opposing counsel objected that the contents of the document were work product, and Judge Dolan sustained the objection. Respondent stated he had never had such an experience and felt what happened was an affront to everything he knew and understood about the legal practice. He recalled being outraged and aggravated. (Tr. 289-91).

Respondent stated that he also objected to the admission of a letter from Cerniglia to Pezza regarding a settlement of their dispute, and argued that settlement proposals are not admissible. Judge Dolan directed Cerniglia's counsel to delete the third page of the letter pertaining to the amount offered to Pezza, and he admitted the first two pages which summarized Cerniglia's position as to why Pezza was wrong. Respondent objected to the admission of those pages because the statements were unsworn, unconfirmed, and hearsay. He stated he had never experienced a situation where an objectionable exhibit was changed in order for it to be admitted. (Tr. 299-301; Resp. Ex. 12).

Respondent was concerned about other events during the trial as well. He stated that Pesek's testimony as to the timing of his involvement with the project differed from the information that was provided in the witness disclosure statement; invoices were offered into evidence without any proof that they had been paid; and contractors' sworn statements were signed and notarized by a person who had died at the time of the signing. (Tr. 294, 306, 314-15).

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Because of the foregoing circumstances, Respondent felt the rules of evidence were not followed, due process rights were violated, and the judge's erroneous rulings resulted in a conversion of Pezza's property to the benefit of Cerniglia. He also believed Pesek had committed perjury and that opposing counsel had suborned perjury because Pesek had testified from a scripted document that had been provided to him. Respondent acknowledged he has never seen the document, but he inferred that it was a script. (Tr. 301-03, 305, 350-51, 356).

With respect to the Himmel hearing conducted by the court, Respondent testified he was not aware that the Himmel case gave any court authority to evaluate whether an attorney had engaged in misconduct. He objected to the hearing which, he explained, was not an evidentiary hearing but consisted primarily of his providing the basis for the objections he made during the trial. (Tr. 304, 351, 357).

Following the trial and a judgment in favor of Cerniglia, Respondent filed post-trial motions in which he referred to perjured testimony. Respondent acknowledged that his argument was seriously overstated, but he stated that it was the result of frustration and his emotional reaction to circumstances he perceived to be unfair. He regrets using that language. (Tr. 308-09).

Respondent's post-trial motion was heard and denied, and subsequently the court ordered him to pay sanctions in the amount of $500. Respondent stated he does not know why he was sanctioned by the court. The sanction was stayed pending Respondent's appeal of Judge Dolan's decisions, but Respondent eventually made the payment. (Tr. 308, 313).

Respondent denied ever stating or writing that Judge Dolan had "thrown the case." He filed a complaint with the Judicial Inquiry Board ("JIB") because of the outrageous circumstances and irregularities of the case. He acknowledged that the JIB investigation was

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closed immediately or very quickly. With respect to other cases he lost before Judges Gettleman and Flanagan, he did not file any complaint with the JIB. (Tr. 309, 311-12).

Respondent denied filing any motions in the Pezza case for the purpose of harassment or to harm anyone. (Tr. 313).

Count IV

On November 22, 2006, attorney David A. Novoselsky filed a complaint for declaratory judgment against Anita Wilson and the Clerk of the Circuit Court of Cook County. The complaint sought a judgment declaring that settlement funds held by the clerk should be paid to Novoselsky for his attorneys' fees in representing Wilson. The matter was assigned to Judge Mary Anne Mason. (Adm. Ex. 82).

On November 28, 2006, Novoselsky filed a "Motion for Substitution of Judge as a Matter of Right" pursuant to 735 ILCS 5/2-1001(a)(2). On December 8, 2006, Judge Mason entered an order allowing the motion for substitution of judge and transferring the case to Judge Kinnaird, presiding judge of the chancery division, for reassignment. The matter was reassigned to Judge Billick. (Adm. Exs. 83, 84).

Respondent agreed to represent Wilson in relation to the complaint filed by Novoselsky, and on January 11, 2007, he filed a motion to dismiss the complaint with prejudice. The second paragraph of Respondent's motion stated:

The Complaint was filed on November 28, 2006. The cause was assigned to Judge Mason. On December 8, 2006 Judge Mason reviewed the pleadings and determined that the Complaint did not state a cause of action for declaratory relief. Rather than allow the Complaint to be dismissed, Plaintiff moved to have it re-assigned based on an oral motion to substitute judges. On December 11, 2006 the cause was reassigned.

(Adm. Ex. 85).

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On January 18, 2007, Novoselsky filed an emergency motion to disqualify counsel, to strike pleading, or to conduct discovery, asserting that Respondent's representations regarding the events of December 8, 2006 were erroneous. On February 20, 2007, Judge Billick conducted a hearing and entered an order striking all but the first sentence of the above-quoted paragraph in Respondent's motion to dismiss, and directing Respondent to file an amended motion to dismiss. Thereafter Respondent filed an amended motion to dismiss which was granted without prejudice to Novoselsky alleging matters or claims against Wilson in two other actions that he had pending in the Circuit Court of Cook County. (Adm. Ex. 86, 90; Resp. Ex. 16, 18).

Judge Mary Anne Mason

The parties stipulated that if called to testify, Judge Mary Anne Mason would testify that she is a judge of the Circuit Court of Cook County serving in the chancery division. On November 22, 2006 the Novoselsky case was assigned to her by random process. On November 28, 2006 Novoselsky filed a written motion for substitution of judge as a matter of right and on December 8, 2006 an attorney for plaintiff appeared on the motion. Judge Mason allowed the motion, and the matter was transferred to Judge Kinnaird for the purpose of reassignment. (Adm. Ex. 91).

Judge Mason would state that at no time did she review the complaint to determine whether it stated a cause of action for declaratory relief, whether it was sufficient in law, or whether there were grounds for dismissal of the complaint. Further, she would state she had no reason to review the sufficiency or merits of the complaint and did not do so. Judge Mason did not make a determination, or express an opinion or concern to any person, that the complaint failed to state a cause of action, was insufficient in law, or would be dismissed. (Adm. Ex. 91).

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David Novoselsky

David Novoselsky, an Illinois attorney, testified he represented a married couple, James and Anita Ayers (now Anita Wilson), in their action against an insurance company. The couple then divorced and when the case settled, the judge ordered that the settlement proceeds be held by the clerk of the court pending a decision as to how the money should be disbursed. (Tr. 63).

Novoselsky stated he has several cases pending with Respondent in connection with the Wilson matter. In November 2006 he filed a complaint for declaratory judgment to address the question of disbursement, and when the case was assigned to Judge Mason, he filed a motion for substitution of judges as of right. Because the defendants had not yet been served, Novoselsky did not believe he was required to provide them with notice of his motion. He stated that case law supports that conclusion. Novoselsky's associate, Julie Fox, appeared on the motion for substitution. (Tr. 64-67, 70, 82, 85, 92).

Novoselsky stated that after the case was reassigned, the defendants were served. Respondent appeared on behalf of Wilson and filed a motion to dismiss with prejudice, stating that Judge Mason had reviewed the complaint and determined it did not state a cause of action. Novoselsky then filed a motion to disqualify Respondent and on February 20, 2007 a hearing was held in front of Judge Billick, who dismissed the case without prejudice to Novoselsky's raising the same allegations in the other actions involving causes against Wilson and/or concerning the distribution of the settlement funds. Novoselsky stated that the issue of distribution of funds is currently pending in the law division. (Tr. 64-68, 72, 86; Adm. Exs. 85, 86; Resp. Ex. 17, 18).

Novoselsky does not recall stating to a judge that he hates Respondent but acknowledged that is an accurate reflection of his feelings. His dislike stems from the fact that he has seen

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Respondent insult judges, make false statements to judges and others, fabricate orders and file frivolous motions that ran up legal expenses for Novoselsky's clients. Novoselsky stated that when Respondent is caught, he laughs. Novoselsky acknowledged that he had filed an action for intentional tort against Respondent and Anita Wilson in April 2006. (Tr. 69, 76-81, 87-90; Resp. Ex. 21).

Anita Wilson

Anita Wilson testified she was formerly married to James Ayers, Jr., an attorney with David Novoselsky & Associates. In 1995 Wilson suffered a serious injury when she was struck by an automobile that crashed through a building. In connection with her injuries, she brought suit against Humana and was represented in that action by David Novoselsky. She was then sued by Novoselsky in at least eleven actions, and was referred to Respondent for representation. She has not paid any fees to Respondent but has paid the litigation costs. (Tr. 230-33, 239).

Wilson stated that when Novoselsky had her served with papers in November 2006, she contacted her divorce attorney, James Singer, for advice. He suggested she call the clerk's office to ascertain the time and place for her appearance. Wilson spoke to someone in the clerk's office, whose name she does not recall, who told her she did not need to go to court because the case had been dismissed by Judge Mason for lack of merit. Wilson was also told that the case might go to Judge Billik but a determination had not been made because Judge Maddux was still reviewing it. Further, she was told it was common for Novoselsky to look for different judges for his petitions. (Tr. 234-35, 238, 242-43).

Wilson testified she called Respondent and informed him of the papers she received and the information she had been given by the clerk's office. Respondent agreed to represent her and eventually the case was dismissed. (Tr. 239).

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Wilson stated that Respondent continues to represent her in other cases filed by Novoselsky, even though Novoselsky offered to take his financial interest off the table if she were to fire Respondent. Wilson stated that Respondent has a reputation for being an honest man with the highest level of integrity, and she has recommended him to other people. (Tr. 240-41).

Respondent

Respondent testified that Novoselsky has brought a number of actions against Anita Wilson and has also sued Respondent. The suits against Wilson involved fees owed by Wilson and her ex-husband as a result of Novoselsky's representation of them in a breach of contract action. (Tr. 319-20).

With respect to the declaratory judgment action brought by Novoselsky, Respondent stated that after the case was filed, Wilson informed him that she spoke to someone in the clerk's office and learned the case was being transferred from Judge Mason to another judge, and that Judge Mason had reviewed the complaint and determined that it would be dismissed. Respondent noted at that time he had been representing Wilson for approximately eight months and found her to be a reliable person. Based on Wilson's representations, he filed a motion to dismiss the complaint which stated Judge Mason had reviewed the pleadings and determined the Complaint did not state a cause of action for declaratory relief, and the case was reassigned based on an oral motion to substitute judges. (Tr. 316, 318, 320-21; Adm. Ex. 85).

Respondent acknowledged that the statement in his motion was incorrect and that he probably should have conducted his own investigation to determine what action the court had taken. On further questioning, he stated he checked the court file prior to filing his motion to try to confirm the status of the case and found only a cover sheet; there were no motions or any

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indication of a dismissal. He denied receiving any notice of motion for substitution of judges, and Wilson did not report that she had received any such notice. Respondent denied that the statements in his motion were made to irk Novoselsky; rather, he was trying to present a history of the proceedings. (Tr. 321-22, 336, 368-69).

Respondent stated that he filed a response to Novoselsky's emergency motion to disqualify counsel, but acknowledged he did not state in his response that he had received his information from Anita Wilson, nor did he make that explanation orally to the judge. He did provide that explanation in March 2007 in his response to the Administrator's request for information. Respondent pointed out that the objectionable language in his motion had nothing to do with the merits of his argument. Judge Billik, to whom the case had been reassigned, ordered him to file an amended motion that would omit the erroneous language. His amended motion was granted. (Tr. 317, 322, 337-38, 359; Adm. Exs. 86, 87, 90).

Respondent testified he has had dozens of interactions with Novoselsky. Novoselsky has expressed anger toward him, stated on two separate occasions that he hates him, brought suit against him, and reported his actions to the ARDC. (Tr. 316, 319, 323).

Evidence Offered in Mitigation

Respondent stated he has cooperated with the ARDC, has never previously been brought before the Commission, and does charitable work for his church. He provides pro bono legal services on an "irregular" basis, typically in the context of answering questions at the courthouse. He noted that, as to all of the cases referenced in the Complaint, he has only received his costs. On cross examination he acknowledged that he has never agreed to represent a client free of charge, based upon the client's financial circumstances. With respect to Anita Wilson, he does

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not expect to receive any fees but acknowledged that at the time he agreed to represent her, she did agree to pay legal fees. (Tr. 258, 323, 330-35).

Respondent stated that, as a result of the current proceedings, he has learned that if an attorney disagrees with a judge's decision, the attorney should take action to preserve the error and then move on. Further, he has realized there are two sides to many situations, and an emotional reaction should not direct a response. (Tr. 332-33).

Character Witnesses

James Karahalios

James Karahalios, an associate judge of the Circuit Court of Cook County, testified he has known Respondent since 1971 when they both worked in the Cook County State's Attorney's office. Judge Karahalios stated that Respondent has an excellent reputation for honesty and integrity among lawyers and judges. The charges against Respondent have not changed Judge Karahalios' opinion. (Tr. 223-26).

Robert Hall

Robert Hall, an attorney, testified he and Respondent worked for the same law firm for approximately ten years. Hall stated that Respondent is a man of honesty, integrity, truth and veracity. (Tr. 228-29).

Edward Rothschild

Edward Rothschild, an attorney since 1973, testified he first met Respondent in 1974 or 1975 when they both worked in the Cook County State's Attorney's office. In 1981 Rothschild formed the law firm of Dore and Rothschild with Respondent's brother, Maurice Dore. Respondent shared office space with Dore and Rothschild for several years and after Maurice Dore died, Respondent continued to share space with Rothschild. Rothschild stated that during

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the time he shared office space with Respondent, they often discussed strategy and points of law. Rothschild believes that every attorney can benefit from sharing ideas with another attorney. (Tr. 246-49).

Rothschild stated that Respondent has an excellent reputation for honesty and integrity, and the allegations of the Complaint do not change his opinion. (Tr. 248-49).

Prior Discipline

The Administrator reported that Respondent has not been the subject of any prior orders or opinions imposing discipline.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991).

Count I

Count I, which involved Respondent's representation of Angelita Greviskes in an employment discrimination action against URA, alleged several acts of misconduct in connection with Respondent's responses to a motion to dismiss filed by defense counsel and the court's determination to hold a hearing on the motion to dismiss. The motion to dismiss was based upon Greviskes' alleged fraudulent conduct in sending false faxes to URA in an attempt to obtain payroll information.

In preparation for the hearing on the motion to dismiss, defense counsel Karen Osgood caused a subpoena to be served upon Angelita Greviskes' husband, Paul Greviskes, who was

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possibly implicated in the fraudulent conduct. Several days later, Respondent caused subpoenas to be served upon Osgood and Ron Paul, the manager of URA's payroll department. The Administrator alleged that the subpoenas to Osgood and Paul were frivolous and unwarranted, and served merely to harass them and URA in retaliation for the subpoena to Paul Greviskes.

Respondent denied that the subpoenas were retaliatory. He explained that Ron Paul was identified in the defendant's motion to dismiss as a principal witness regarding URA's receipt of the faxes and how the faxes were distributed and therefore, according to Respondent, Ron Paul would be a central person in any hearing. With respect to the subpoena to Osgood, Respondent justified its issuance by stating that Osgood was the person who collected the incriminating information which was then set forth in a letter and the motion to dismiss, and therefore she was a witness as to how the information was obtained.

While we see some tangential support for Respondent's subpoena to Ron Paul in that Paul's testimony might have been useful in explaining how the allegedly forged faxes were received and processed by URA, we see no legitimate reason for the subpoena issued to defense counsel Osgood. As for the contention that Osgood collected information relating to possible forgeries by Greviskes, Osgood's actions were merely that of defense counsel conducting an investigation, and could have no independent bearing on a determination of who was responsible for the fraudulent conduct. Therefore, we find that the Administrator proved by clear and convincing evidence that the subpoena to Osgood was frivolous and issued for the purposes of harassment.

With respect to Osgood's subpoena to Paul Greviskes, Respondent filed a motion to quash in which he asserted that Paul Greviskes's communications with his wife were subject to marital privileges and the attorney-client privilege, and therefore no legal justification existed for

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the subpoena. The Administrator alleged that Respondent had no reasonable basis for contending that Paul Greviskes could not offer any admissible testimony on issues related to URA's motion to dismiss. We agree. The marital privilege against adverse spousal testimony generally applies only to criminal proceedings. See Ryan v. Commissioner of Internal Revenue, 568 F. 2d 531, 544 (7th Cir. 1977). The marital communications privilege and attorney-client privilege protect communications only, and would not prevent inquiry into other areas such as the transmission or origin of the allegedly fraudulent faxes. See e.g. U.S. v. Lofton, 957 F. 2d 476, 477 (7th Cir. 1992) (acts observed by the spouse are not protected by the marital communications privilege); U.S. v. Evans, 113 F. 3d 1457, 1460, 1463 (7th Cir. 1997) (attorney client privilege extends only to communications between client and professional legal advisor acting in that capacity).

The remaining allegations of misconduct in Count I relate to Respondent's repeated arguments that the district court was without jurisdiction to proceed on URA's motion to dismiss. URA asserted that the court had authority to dismiss Greviskes' complaint pursuant to Rule 37 of the Federal Rules of Civil Procedure, and also pursuant to the court's inherent power to address egregious conduct by a party. URA cited two cases, including a recent Seventh Circuit case, to illustrate the district court's inherent powers. See Dotson v. City of Chicago, 321 F. 3d 663, 667 (7th Cir. 2003); Jones v. Goodyear Tire and Rubber Co., et al., 137 F.R.D. 657 (N.D. Ill. 1991). Respondent then filed a motion to dismiss URA's motion,1 in which he challenged the court's jurisdiction under Rule 37. His motion did not address URA's statement that the court possessed inherent authority to dismiss the case, or distinguish the cases cited by URA for that proposition.

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The district court denied Respondent's motion to dismiss and explained that it was proceeding under its inherent authority to protect the integrity of the judicial process. On the same day as the denial, Respondent filed another motion -- this time to dismiss the evidentiary hearing -- and again challenged the court's jurisdiction to proceed under Rule 37. That motion was denied as well, and an evidentiary hearing was held. Following the evidentiary hearing, Respondent filed a post trial memorandum in which he repeated his Rule 37 argument and offered a new theory to defeat the court's jurisdiction. His argument, which we found to be rambling and imprecise, suggested that the court's inherent authority could only be activated through a contempt proceeding but since proper procedures were not followed for the initiation of a contempt proceeding, his client's due process rights were violated.

The district court issued an opinion in which it dismissed Greviskes's complaint. The court relied upon its inherent authority to impose such a sanction, citing the same case URA had cited in its original motion to dismiss. Thereafter, the court awarded $69,000 to URA for its attorneys' fees and costs incurred in connection with the motion to dismiss.

Respondent appealed the district court's decisions. In his brief he acknowledged that a court has inherent authority to fashion an appropriate sanction for conduct that abuses the jurisdictional process but argued, among other things, that the exercise of authority in this case was improper because the fraud engaged in by Greviskes was not prejudicial to URA, and the evidentiary hearing conflicted with national rules of procedure and federal statutes. The Seventh Circuit rejected Respondent's arguments, characterizing them as "often incoherent, "baseless," "unsupported by relevant case law or coherent legal analysis," "representative of a continuing litigation practice which evinces bad faith" and "frivolous on all claims."

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After reviewing Respondent's submissions to the district and appellate court, we conclude that his numerous attempts to challenge the court's jurisdiction, his shifting theories and his failure to distinguish authority cited by URA all point to one conclusion: Respondent was unable to mount a legitimate argument to challenge the court's authority to dismiss Greviskes' complaint and therefore adopted a strategy of frivolous and vexatious litigation. His lack of a valid position should have been apparent to him when he first reviewed the cases cited in URA's motion to dismiss, as well as when the court explained its position at the hearing on his motion to dismiss. Without regard to the court's decision or relevant authority, he filed another motion and a post-trial brief in which he continued to attack the court's jurisdiction. His failure to distinguish URA's relevant case law, along with his persistence in raising an issue already ruled upon by the district court, are evidence of his lack of good faith in filing the documents. Rather than apprising the court of the state of the law, he engaged in tactics which could have no purpose other than to delay the proceedings and harass his opponent.

We have reached the foregoing conclusions on the basis of Respondent's filings, but also note our complete agreement with the district court and appellate court's conclusions regarding Respondent's presentation of positions that have no merit, and find further support for our decision in those opinions. See In re Owens, 144 Ill. 2d 372, 581 N.E.2d 633, 636 (1991) ("Although a civil judgment may not be the only factor of consideration of a Hearing Board, it nevertheless may be a component in the greater whole of the Board's decision."). The fact that neither the district court nor the Seventh Circuit imposed sanctions directly against Respondent does not change our view. As noted by both courts, Respondent's conduct clearly played a role in their determinations that Greviskes was responsible for defense counsel's attorneys' fees.

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Simply put, our analysis of ethical violations is not dependent on whether financial sanctions were imposed against Respondent.

We find therefore, as to Count I, that the following misconduct was proved by clear and convincing evidence:

  1. asserting a position on behalf of a client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another in violation of Rule 1.2(f) of the Illinois Rules of Professional Conduct;

  2. bringing or defending a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, in violation of Rule 3.1;

  3. using means that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4;

  4. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5);

  5. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

Count II

Count II charged similar misconduct in connection with Respondent's filing of a defamation action against the attorneys for URA. Respondent alleged he was defamed by Karen Osgood's letters regarding the forgery of faxes sent to URA, the inclusion and discussion of the letters in subsequent court filings, and the defendants' discussions of possible misconduct with other URA attorneys and employees. Respondent also alleged that his privacy was invaded when the Chicago Daily Law Bulletin published an article about the opinion dismissing Greviskes's complaint.

We have reviewed the letter from Osgood to Respondent and subsequent motions and fail to see anything that is defamatory to Respondent. The letter did not accuse Respondent of

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committing a crime; rather, it described the circumstances which indicated that the faxes were falsified, stated that "the foregoing strongly indicates that one or both of you were involved in these forged documents," and requested a written explanation as to whether and to what extent Respondent or Greviskes were involved in the forgeries. Respondent's preference to interpret the request as an accusation does not place the letter within any category of statement that is recognized by Illinois courts to be defamatory per se. See Van Horne v. Muller, 185 Ill. 2d 299, 705 N.E.2d 898 (1998).2 Similarly, the motion to dismiss filed by the URA attorneys did not accuse Respondent of criminal conduct; rather the motion stated that Greviskes or "someone acting on her directive or behalf' was responsible for the forgeries.

We further note that the statements in Osgood's letter and subsequent motions, as well as the discussions with other URA attorneys and employees were subject to the attorney litigation privilege, which protects statements between opposing counsel and between attorneys and their clients in connection with a judicial proceeding. See Golden v. Mullen, 295 Ill. App. 3d 865, 870, 693 N.E.2d 385 (1st Dist. 1997) citing Restatement (Second) of Torts, sec. 586 (1977); Atkinson v. Affronti, 369 Ill. App. 3d 828, 861 N.E.2d 251, 255 (1st Dist. 2006). The UAR attorneys filed a motion to dismiss Respondent's complaint in which they offered a detailed discussion, with citation to legal authority, of the attorney litigation privilege. In his response, Respondent failed to address the legal authority cited by his opponents, and failed to offer any cogent explanation as to why the communications were not protected by the privilege.

We heard very little testimony regarding research conducted by Respondent prior to his filing of his defamation action. He acknowledged being aware of an "absolute judicial privilege," but he felt the privilege did not apply because Osgood's letter was totally separate and distinct from any court proceeding. We reject Respondent's reasoning as being completely

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without merit. The letter clearly addressed a matter that had arisen in the pending litigation between Respondent's client and URA. Furthermore, in determining whether a communication pertains to a proposed or pending litigation, case law states that "all doubts should be resolved in favor of a finding of pertinency." Golden v. Muller, 295 Ill. App. 2d at 870.

Based on the foregoing, we find that Respondent's initiation of the suit against the URA attorneys was frivolous and unwarranted.3 Further, his lack of facts to establish his claim shows that the suit was filed merely for harassment purposes.

Respondent argued at hearing that we should not find a violation of Rule 1.2(f) (prohibiting filing of actions that would serve merely to harass another) as that rule is directed to acts taken "on behalf of a client." In this case Respondent initiated the lawsuit against the URA attorneys and filed an amended complaint, but then retained counsel to file the second amended complaint. In a somewhat analogous case involving an attorney who was the named plaintiff in a defamation action against a former client, the Review Board, in an opinion affirmed by the Supreme Court, declined to find a violation of Rule 1.2(f) and 3.1 in part because the attorney-plaintiff was represented by counsel who advised him with respect to the cause of action, researched the defamation issues, and filed the complaint on the attorney's behalf. See In re Greenblatt, 92 CH 269, M.R. 10357 (Nov. 30, 1994). In contrast to the attorney in Greenblatt, Respondent initiated the defamation action on his own behalf and, although he brought in counsel to file a second amended complaint, his counsel's name does not appear on subsequent filings, including Respondent's response to the defendants' motion to dismiss. Moreover, in three court opinions, the circuit court referred to Respondent as a "pro se plaintiff." We believe the circumstances of the present case show that Respondent was the one who was calling the shots and making the decisions regarding claims and arguments that were asserted. His stance as

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a pro se litigant representing himself should not preclude the application of the rule prohibiting claims that are unwarranted and harassing. See In re Zurek, 99 CH 45, M.R. 18164 (Sept. 19, 2002) (Review Board, in opinion approved by Supreme Court, stated that an attorney's stance as a pro se litigant should not preclude the application of Rule 1.2(f)).

For the foregoing reasons, we find the following misconduct was proved by clear and convincing evidence:

  1. asserting a position on behalf of a client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct;

  2. advancing a claim that the lawyer knows is unwarranted under existing law without a good-faith argument for an extension, modification, or reversal of existing law, in violation of Rule 1.2(f)(2);

  3. bringing or defending a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, in violation of Rule 3.1;

  4. using means that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4;

  5. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5);

  6. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

Count III

Count III, which involved Respondent's representation of Pezza Landscape against Cerniglia Company, alleged that during the course of the Pezza litigation proceedings Respondent accused defense counsel of fabricating statements, asserted that a witness perjured himself and defense counsel suborned the perjury, and alleged that the presiding judge lacked objectivity and made improper rulings. Respondent's statements occurred in written pleadings,

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in oral statements made during the proceedings, and in a report to the Judicial Inquiry Board. Respondent was charged with making false and frivolous statements for the purpose of harassment, and making false statements concerning the integrity of a judge.

As to Respondent's accusations that defense counsel fabricated witness opinions, the evidence showed that prior to the trial of the Pezza matter, defense counsel filed a witness disclosure statement in which the opinion of each of six witnesses was briefly summarized. Respondent then filed a motion in which he asserted that, because the wording of each opinion was identical, the opinions were a "product of mere invention" and were "made up" by defense counsel. He asked that the disclosure statement be stricken and that the witnesses be barred from testifying.

We have reviewed the witness disclosure statement and see no basis for Respondent's assumptions and accusations. The mere fact that the wording of each opinion is identical does not compel a conclusion that the opinions were false or that they were the product of defense counsel's invention. It is more likely, in our opinion, that the replication was the simplest and most efficient way to state the opinions. Defense counsel Adamski, whom we perceived to be a credible witness, stated that he prepared the statement after speaking to each potential witness and confirmed that they all held the same opinion. He denied that he invented or concocted any of the opinions. Respondent's justification for his accusations, that he had not previously encountered such an occurrence and believed identical opinions to be impossible, was not convincing. We see nothing surprising or unusual about the fact that various individuals working on the same project would reach the same conclusions and hold the same opinions. Since we can discern no reasonable basis for Respondent's conclusion that the opinions were

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concocted by defense counsel, we conclude that his motion was frivolous and filed solely for the purposes of harassment.

With respect to Respondent's assertions that a witness, Wayne Pesek, perjured himself at trial and that defense counsel suborned the perjury, the accusations were first asserted orally after the court rendered its verdict in favor of Cerniglia. Judge Dolan promptly ordered a hearing on the allegations of subornation to determine if the matter should be referred to the ARDC. After listening to statements from Respondent and defense counsel, the court found that the allegations had no basis, and that Respondent's disagreement with the court's rulings on evidence and witness credibility could be raised on appeal.

Respondent then submitted post-trial motions and responses to motions in which he continued to accuse Pesek of perjury and defense counsel of suborning perjury. Respondent justified his allegations by pointing to the following circumstances:

  1. Pesek was allowed to sit at defense counsel's table during the trial and listen to other witnesses testify

  2. Pesek consulted a document during his testimony which Respondent was not allowed to examine.

  3. Pesek's testimony regarding damages lacked documentary support

  4. Pesek's testimony at trial differed from his statements during the discovery process

Respondent's claims notwithstanding, the evidence did not establish that Pesek fabricated testimony, or that he testified from a script. Adamski acknowledged that he conversed with Pesek and exchanged notes with him during the trial, but denied that he asked Pesek to provide untruthful testimony or that Pesek gave untruthful testimony. Likewise, Pesek testified he was designated by Cerniglia to be the company's trial representative and the testimony he gave during the Pezza trial was truthful. He denied that he conspired with defense counsel to fabricate

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testimony or that he acted as a "super witness." Respondent produced no evidence that led us to doubt Pesek's veracity. With respect to the allegation that Pesek's trial testimony differed from his prior statements, the court's bystander report indicates that Respondent was not able to impeach Pesek's testimony at trial.

Having reviewed Respondent's filings and the other relevant evidence, we find that his accusations against Pesek were unsupported by facts, and served merely to harass the opposing party. Similarly, Respondent's repeated allegations of subornation of perjury were vague and conclusory, rather than grounded in fact, and we do not believe they were asserted with a sincere belief in their accuracy. We are particularly troubled that Respondent continued to make the assertions after Judge Dolan determined they were baseless, and that Judge Dolan ultimately had to instruct Respondent to cease making unsupported accusations. Respondent acknowledged at hearing that he let his emotions get the better of him and as a result, his arguments concerning perjury were seriously overstated.

Respondent's accusations extended beyond the conduct of his opponents; they also encompassed the court's actions and rulings. After Judge Dolan announced his ruling in favor of Cerniglia and against Pezza, Respondent filed a post-trial motion requesting the court to set aside the judgment or grant a new trial. His motion accused the court of allowing the introduction of false evidence, manipulating and ignoring the evidence, failing to apply the law, acting as an advocate for the defendant, holding a Himmel hearing in order to exonerate the defense attorneys, and engaging in judicial conversion. Respondent continued to make the same assertions in subsequent filings relating to the post-trial proceedings and, following the denial of his motion, he repeated the allegations in a motion for substitution of judges. That motion was also denied.

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Judge Dolan, whom we found to be credible, denied he ever ruled contrary to the evidence, accepted false testimony, deliberately failed to apply or understand the need to apply the rules of evidence, overlooked any significant evidence, manipulated evidence to favor one side, or was biased in favor of Cerniglia. In addition to Judge Dolan's testimony, we have his written opinions which demonstrate a careful consideration of Respondent's various arguments and sound reasoning in the disposition of each issue, including a ruling in Respondent's favor on defense counsel's motion to strike Respondent's post-trial brief. The record in this case does not support Respondent's claim that Judge Dolan was biased in favor of Cerniglia, attempted to manipulate the evidence, or made rulings without regard to the law, nor did he present legal authority to support his claims.4 See In People ex rel. Chicago Bar Association v. Standidge, 333 Ill. 361, 164 N.E. 844, 845-46 (1928) (Supreme Court rejected an attorney's accusations that appellate judges had "willfully, wantonly and corruptly" made false findings, stating that the "record fails utterly to support the charge," and the appellate opinion "evinces careful consideration of the evidence upon which the order for the preliminary injunction was based").

Respondent's statements concerning Judge Dolan went beyond vigorous advocacy or a disagreement with the court's rulings, and reflect an unwarranted and reckless assault on the court's competence, objectivity and integrity. Whether or not Respondent was acting out of frustration with what he perceived to be judicial bias, as suggested by his counsel, his overwrought and baseless accusations cannot be excused. Respondent's proper recourse, as he well knew, was to preserve his objections and present a well-documented argument in a professional manner without insults or unsupported accusations of judicial dishonesty.

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The Supreme Court has outlined the procedure to follow when an attorney legitimately suspects judicial misconduct. In People ex rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734, 735 (1920) the Supreme Court stated:

Judges are not exempt of just criticism, and whenever there is proper ground for serious complaint against a judge, it is the right and duty of a lawyer to submit his grievances to the proper authorities, but the public interest and the administration of the law demand that the courts should have the confidence and respect of the people. Unjust criticism, insulting language, and offensive conduct toward the judges personally by the attorneys, who are officers of the court, which tend to bring the courts and the law into disrepute and to destroy public confidence in their integrity cannot be permitted.

See also In re Jafree, 93 Ill. 2d 450, 460, 444 N.E.2d 143, 149 (1982).

We note that Respondent also attacked Judge Dolan's integrity in a letter to the Judicial Inquiry Board. Although we believe the allegations of bias contained in that letter were as unjust as those in his court filings, we do not base any findings of misconduct on the statements made to the board. Complaints to that board are intended to be confidential unless and until a judge is publicly charged with misconduct, and therefore we do not have the same concern that frivolous charges will impact the public's perception of the judiciary. Even more important, we do not wish our findings to create a chilling effect on attorneys who sincerely believe they have witnessed improper conduct.

We find that Respondent's various accusations and filings, as detailed above, were without merit and asserted for the purpose of harassment. Apparently angered by unfavorable testimony, adverse evidentiary rulings and other developments in the trial, Respondent reacted by making frivolous allegations and launching personal attacks against a witness and opposing counsel. He also made statements which impugned the integrity of a judge, without regard to the falsity of those statements. As with Counts I and II, we were presented with judicial opinions which severely criticized Respondent's conduct. Judge Dolan imposed sanctions against

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Respondent for making false and reckless accusations against Wayne Pesek, defense counsel, and the court. The appellate court affirmed Judge Dolan's decision, and found that Respondent had waived many of his contentions by failing to offer citations to relevant authority or coherent arguments in support of his bare assertions. Those judicial findings are consistent with and lend support to our own conclusions in this case.

For the foregoing reasons, we find as to Count III that the following charges of misconduct were proved by clear and convincing evidence:

  1. asserting a position on behalf of a client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct;

  2. bringing or defending a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, in violation of Rule 3.1;

  3. using means that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4;

  4. making a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, in violation of Rule 8.2(a);

  5. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5);

  6. conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

Count IV

Count IV alleged misconduct in connection with Respondent's representation of Anita Wilson in an action brought by David Novoselsky. Respondent filed a motion to dismiss Novoselsky's complaint and stated in the motion that the case had been assigned to Judge Mason, who had reviewed the complaint and determined it did not state a cause of action. Respondent further represented that Novoselsky, rather than allowing his case to be dismissed,

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had made an oral motion to have the case reassigned to another judge. In fact, Respondent's representations were incorrect. The evidence showed that Novoselsky had filed a written motion for substitution of judges which was granted without any comment by Judge Mason as to the validity of the complaint. Respondent was charged with engaging in dishonest conduct and making misrepresentations to a tribunal and to a third person which he knew or reasonably should have known were false.

Respondent admitted at hearing that his statements were inaccurate but explained they were based on information he had received from Wilson, whom he had found to be reliable in the past. He also checked the court file to determine the status of the case, but he found nothing in the file other than a cover sheet.

We find that the charges of Count IV were not proved by clear and convincing evidence. With respect to Respondent's representation that Judge Mason determined the complaint did not state a cause of action, we accept his testimony that he was acting on representations by his client and that he made some attempt to verify those representations by looking at the court file. The fact that no dismissal order appeared in the file was consistent with his understanding that Judge Mason reassigned the case rather than dismissed it. Further, his explanation was supported by his client's testimony. Wilson confirmed that she spoke to someone in the clerk's office, received information regarding statements made by the judge and relayed that information to Respondent. With respect to Respondent's inaccurate statement that Novoselsky made an oral motion for substitution, Novoselsky acknowledged he did not serve Wilson with a copy of his motion for substitution, and Respondent testified he found no motion in the court file.

We conclude that Respondent filed a motion in which he attempted to provide the court with a history of the proceedings based on information available to him. We believe he made at

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least some attempt to verify the information, and we do not assign any nefarious motive to his misstatements. We further note that, pursuant to an order by the court, Respondent cured his mistake with an amended motion that omitted the erroneous language.

Therefore, as to Count IV, we find the Administrator did not prove by clear and convincing evidence that Respondent engaged in the following misconduct, as charged in the complaint:

  1. making a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false, in violation of Rule 3.3(a);

  2. making a statement of fact or law to a third person which statement the lawyer knows or reasonably should know is false, in violation of Rule 4.1(a);

  3. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4);

  4. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5);

  5. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

RECOMMENDATION

Having found that Respondent engaged in the misconduct charged in Counts I, II and III, we must determine the appropriate discipline warranted by that misconduct. In determining the proper sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906, 912 (1994).

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In making our recommendation for discipline, we also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526, 535 (1991). In mitigation, Respondent cooperated in these proceedings, has not been previously disciplined, and presented several character witnesses, including a judge and two attorneys, who attested to his excellent reputation for truth and honesty.

In aggravation, we consider the harm or risk of harm caused by Respondent's misconduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care). In this case Respondent's frivolous filings in the Greviskes matter caused his opposing counsel to expend considerable time in responding to the filings. Although the Seyfarth firm was awarded its fees in defending Respondent's frivolous motions and appeal, the matter obviously detracted from counsel's ability to attend to other work. Similarly, Respondent's opposing counsel in the Pezza Landscape matter expended considerable time and expense in opposing Respondent's frivolous post-trial motion and related filings.

In addition to financial harm, Respondent's actions posed a genuine risk of harm to the reputations of everyone he falsely maligned. Respondent accused the attorneys for URA of defaming him, accused Wayne Pesek of committing perjury, accused the attorneys representing Cerniglia of suborning perjury, and accused Judge Dolan of bias and lack of competence. Because damage to reputations is not easily quantifiable or always detectable, we can consider the "risk" of harm, which we believe existed here. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194, 1201-02 (2003).

We are particularly concerned that Respondent's frivolous and harassing litigation tactics occurred over the course of two years and involved several litigation matters. See In re Lewis,

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138 Ill. 2d 310, 562 N.E.2d 198 (1990); In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995) (in determining discipline, court considered fact that attorney engaged in a pattern of misdeeds rather than an isolated instance of misconduct). Had Respondent been guilty of only one or two unwarranted filings or accusations, we might accept his explanation of an emotional reaction to a perceived injustice. His repeated course of conduct, however, leads us to conclude that he has an overly vexatious and contentious nature which has interfered with his ability to make sound judgments.

Keeping in mind Respondent's misconduct, the purposes of the disciplinary proceedings, and the mitigating and aggravating factors, we now look to relevant case law to guide us in our recommendation of discipline. In urging that Respondent be suspended for a period of one year, the Administrator drew our attention to several cases. We note that the Administrator's suggestion was premised on the assumption that we would find misconduct on all counts of the Complaint, which we did not do. In fact, our lack of finding of any misconduct in Count IV is somewhat significant, since that was the only count charging Respondent with dishonesty, fraud, deceit or misrepresentation. For his part, Respondent argued that his conduct warrants only a minimal sanction, if any, and presented case law to support that suggestion.

The types of misconduct that occurred in this case have resulted in a range of disciplines depending on the degree of offensiveness of the acts, as well as the mitigating and aggravating factors. Attorneys who engage in unwarranted attacks on the judiciary have faced harsh discipline where the attacks were extreme and/or involved suits filed against members of the judiciary. This type of behavior not only has the potential to damage the reputation of the judge involved, but also could undermine confidence in the integrity of the entire judicial process. See People ex. rel. Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1919) the

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attorney was disbarred for filing suit against a judge purportedly on behalf of client who received an adverse ruling, giving an interview to a newspaper regarding the suit, and writing a letter to the judge accusing him of being a "political manekin" and doing dastardly work. In In re Phelps, 55 Ill. 2d 319, 303 N.E.2d 13 (1973) the attorney was suspended for two years and until further order of court for initiating three separate proceedings accusing judges in a divorce case of collusion, coercion, acting in a criminal, discriminatory, arbitrary and capricious manner, and having conspired to obstruct justice.

On the other hand, single instances of impugning the integrity of a judge, with no additional misconduct, have warranted minimal discipline. See In re Harrison, 06 CH 36, M.R. 22839 (March 16, 2009) (censure for attorney who stated in a motion and amended motion that circuit court judge and state's attorney were obstructing justice and engaging in prosecutorial misconduct, and disrupted court). People ex rel CBA v. Sherwin, 364 Ill. 350, 4 N.E.2d 477 (1936) 1.2(f)(1), 3.1, 4.4 (attorney censured for stating in petition that court order was result of vindictiveness of judge who refused to follow law).

Likewise, attorneys who have submitted frivolous and unwarranted filings have been subject to a range of discipline. In In re Greanias, 01 SH 117, M.R. 19079 (Jan. 20, 2004) the attorney was suspended for two years and until further order of the court for filing five frivolous lawsuits against the Commissioners and Secretary of the Industrial Commission alleging fraud, conspiracy and racketeering. The attorney had no understanding of or remorse for her actions. At the other end of the discipline spectrum, the attorney in In re Balog, 98 CH 80 (April 26, 2000) was reprimanded for filing three frivolous appeals. The attorney had made significant contributions to the profession, and because the appeals were all part of the same proceeding, the misconduct was viewed as one isolated occurrence. See also In re Fitzgibbons, 96 CH 496, M.R.

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12712 (Sept. 24, 1996) (attorney reciprocally censured for filing a frivolous complaint and, after its dismissal, filing a motion for reconsideration and notice of appeal); In re Bercos, 97 CH 97, M.R. 14713 (May 27, 1998) (attorney suspended on consent for thirty days for filing numerous frivolous pleadings in one child support matter). We do not believe the conduct in the present case is as egregious as that in Greanias, but it is more severe than the conduct in the latter cases, since more client matters were involved and Respondent engaged in additional misconduct relating to Judge Dolan.

Within the noted broad range of discipline, we believe the following cases offer the best guidance for our decision. In In re Chiang, 07 CH 67, M.R. 23022 (May 18, 2009) the attorney was suspended for five months until further order of court, with the last month stayed and the attorney placed on a two year period of probation, for advancing an unwarranted claim and making baseless accusations of racial discrimination and laziness against the judges of the Seventh Circuit Court of Appeals. He also demonstrated incompetence in relation to several appeals and made a false statement in a pleading. Probation was warranted in that case because the attorney needed further education and supervision in the substantive area of law in which he practiced. In In re Andion, 95 CH 808, M.R. 11898 (Jan. 23, 1996) reciprocal discipline was imposed upon an attorney who had been suspended in California for initiating vexatious and frivolous suits on behalf of his client and signing pleadings in which he accused the judiciary of racial bias. The Illinois Supreme Court suspended the attorney for one year, and stayed the suspension after sixty days, pending the attorney's compliance with probationary conditions imposed by the California court. In People ex. rel Chicago Bar Association v. Standidge, 333 Ill. 361, 164 N.E. 844 (1928) the Court suspended an attorney for six months for bringing a

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meritless suit against three appellate judges who had ruled against him, and for accusing them of wantonly making false findings.

Having reviewed the misconduct, the mitigating and aggravating factors, and the relevant case law, we conclude that a suspension of five months is warranted and will serve the purposes of safeguarding the public, maintaining the integrity of the profession and protecting the administration of justice from reproach.  Because Respondent has practiced more than thirty years without being subject to any other disciplinary orders and because his conduct did not involve dishonest acts, we do not believe that an additional period of suspension is necessary to achieve the objectives of the disciplinary process.  On the other hand, by interfering with the smooth function of the judicial process, placing burdens on his opposing counsel, and causing reputations to be jeopardized, his pattern of conduct had a negative impact on the integrity of the legal profession and the administration of justice.

We believe that a five month absence from the practice of law will provide Respondent with the time he needs to reflect upon his actions and consider ways to change and control his behavior. In addition, a review of professional ethics rules will aid him in his introspection and reformation, and therefore we make completion of an ethics class a part of our recommendation.

Accordingly, we recommend that Respondent John N. Dore be suspended from the practice of law for a period of five months and until he completes the class in professional ethics offered by the Professional Responsibility Institute.

Date Entered: December 17, 2009

Henry T. Kelly, Chair, and hearing panel members Thomas J. Potter and Frederich Bingham

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_______________________________________________________________________________________________
1  As noted by the district court during the hearing on Respondent's motion, the "motion to dismiss" was not a proper motion but rather was a "response" to URA's motion to dismiss, although Respondent had already filed a response.  

2  The five categories of statements that are recognized as defamatory per se are:  1) statements imputing the commission of a crime; 2) statements imputing infection with a loathsome communicable disease; 3) statements imputing an inability to perform or want of integrity in performing employment duties; 4) statements imputing a lack of ability or that otherwise prejudice a person in his or her profession or business; and 5) statements imputing adultery or fornication.  705 N.E.2d at 903.  Even if a statement falls within one of the categories, it is not actionable per se if it is reasonably capable of an innocent construction. 

3  We draw no contrary conclusions from Missner v. Clifford, 333 Ill. App. 3d 751, 914 N.E.2d 540 (1st Dist. 2009), appeal pending (Nov. 1, 2009), a recent appellate court case currently being appealed to the Supreme Court.  In that case, which involved an allegedly defamatory press statement that accused attorneys of forgery and extortion, the appellate court reversed a finding that the defendants were protected by the fair report privilege and remanded the case for resolution of factual issues relating to publication.  

4  With respect to Respondent's argument that the court had engaged in "judicial conversion" by awarding damages to Cerniglia without any evidence to support its award, Judge Dolan rejected that concept and noted that "judicial conversion" is not a legally recognized principle.  At hearing, Respondent's counsel offered a federal case which refers to "judicial conversion" in the context of a court "converting" a sec. 1983 action into a petition for collateral review.  See Moore v. Pemberton, 110 F. 3d 22 (7th Cir. 1997).  Other than establishing that the combination of words has been used by a court, however, the Moore case adds no support for Respondent's suggestion that Judge Dolan effected an unlawful conversion of Pezza's property.