Filed November 22, 2010
In Re Guy D. Geleerd, Jr.
Commission No. 07 CH 31
Synopsis of Review Board Report and Recommendation
The Administrator charged Geleerd with making misrepresentations to a court and submitting false pleadings in connection with a medical malpractice case. Geleerd denied all allegations of misconduct.
The Hearing Board found that Geleerd committed some of the charged misconduct. Specifically, it found that Geleerd made a false statement of material fact to a tribunal which he knew or should have known was false, in violation of Rule 3.3(a)(1); offered affidavits that he knew to be false, in violation of Rule 3.3(a)(4); participated in the creation or preservation of evidence when he knew or reasonably should have known the evidence was false, in violation of Rule 3.3(a)(5); engaged in misrepresentation, in violation of Rule 8.4(a)(4); and engaged in conduct that was prejudicial to the administration of justice and that tended to defeat the administration of justice and to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770. The Hearing Board recommended that Geleerd receive a ten-month suspension with the last five months stayed pending Geleerd's completion of a professionalism seminar.
Both Geleerd and the Administrator filed exceptions to the Hearing Board Report and Recommendation. The Administrator argued that he proved Geleerd made an additional false statement to the court and that his misconduct warrants a one-year suspension. Geleerd contended that most of the Hearing Board's findings of misconduct were erroneous and that he should receive at most a censure or reprimand.
The majority of the Review Board determined that, but for the finding that Geleerd should have known that he misidentified his consultant's specialty and thereby made a false statement to the court, the Hearing Board's findings were erroneous. In light of its recommended reversal of all but one of the Hearing Board's findings of misconduct and Geleerd's substantial evidence in mitigation, the majority recommended that Geleerd receive a censure.
The dissenting member of the Review Board would not disturb certain of the Hearing Board's findings of fact and misconduct and consequently could not join in the recommendation of censure as an appropriate sanction.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
GUY D. GELEERD, JR.,
Commission No. 07 CH 31
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant/Cross-Appellee charged Guy D. Geleerd, Jr., Respondent-Appellee/Cross-Appellant, with making false statements to a judge and filing false documents with a court. Respondent admitted some of the Administrator's factual allegations, denied others, and denied all allegations of misconduct.
The Hearing Board found that the Administrator proved some of the alleged misconduct but ruled for Respondent with respect to certain other charges. The Hearing Board recommended that Respondent's license be suspended for ten months, with the last five months of the suspension stayed pending Respondent's completion of a professionalism seminar.
The Administrator filed exceptions to the Hearing Board Report and Recommendation, contending on review that he proved an additional false statement by Respondent and that Respondent should receive a one-year suspension. Respondent filed a cross-appeal, asserting that the Hearing Board's findings of misconduct are erroneous and that a reprimand or censure is an appropriate sanction.
In our analysis of the Hearing Board findings, we discuss in detail the facts pertinent to each finding. Therefore, in this introductory part of our Report we present only a brief synopsis of the case.1
The allegations of misconduct against Respondent arose from his representation of the estate of Novalene Crull in a medical malpractice action filed in the Circuit Court of Livingston County in 2004. In October 2004, Respondent asked Dr. Bernard Lerner to review Crull's medical records. Respondent had previously used Lerner as a consultant in other medical malpractice cases. He believed that Lerner was a neurosurgeon who was licensed to practice in New Mexico and New York, although Respondent was also aware that Lerner had been arrested for illegally prescribing drugs, had served time in a Minnesota jail, and had lost his Illinois medical license.
Lerner reported his findings to Respondent in October 2004. Based on Lerner's report, Respondent decided to proceed with the medical malpractice claim. When Respondent filed the Crull complaint on December 17, 2004, he attached two affidavits, pursuant to Section 2-622 of the Illinois Code of Civil Procedure (735 ILCS 5/2-622), stating that he was unable to obtain a healthcare professional's report prior to the expiration of the statute of limitations. Section 2-622 requires a plaintiff's attorney to file with a medical malpractice complaint a reviewing healthcare professional's report as to each defendant, stating that there is a reasonable and meritorious cause for the malpractice action. Section 2-622 provides a ninety-day extension for filing the necessary reports if the plaintiff's attorney cannot obtain the required consultations prior to the expiration of the statute of limitations. The statutory extension for the Crull matter
expired on March 17, 2005. Prior to March 17, 2005, Respondent did not file any 2-622 reports or seek a further extension.
Respondent testified that in November 2004 he contacted Dr. Frank Rhame, an infectious disease specialist, and Dr. Bruce Leslie, an internist with a specialty in nephrology. He did not send Crull's medical records to either Dr. Rhame or Dr. Leslie prior to March 22, 2005.
On January 1, 2005, Respondent's partner, Laurence L. Coughlin, passed away. Respondent testified that, as a result of Coughlin's death, he had to review and take responsibility for approximately 300 additional case files. Respondent advised the Circuit Court that these circumstances caused him to miss the deadline for filing the 2-622 reports.
THE HEARING OF MARCH 22, 2005
The Crull defendants filed motions to dismiss based on Respondent's failure to timely comply with Section 2-622. The motions were heard on March 22, 2005. At the outset of the hearing before Judge Frobish of the Circuit Court of Livingston County, Respondent presented a motion for leave to file instanter Section 2-622 affidavits on behalf of the plaintiff. The affidavits, which Respondent prepared and signed, stated that he had consulted with a qualified healthcare professional who had indicated in a written report that there was a reasonable and meritorious cause for the malpractice action. Respondent attached three identical, unsigned reports to the affidavits, one for each of the three defendants named in the reports.
Respondent had prepared the reports, which were based on Lerner's medical analysis. He then sent them to Lerner to review and sign. Lerner signed the reports on March
18, 2005 and returned them to Respondent. As noted, Lerner's signature and identity were not shown on the reports which accompanied the motion seeking leave to file them.
At the conclusion of the hearing, the Court reserved ruling on the defendants' motions to dismiss. It made no ruling with respect to Respondent's instanter motion for leave to file the unsigned Lerner reports and 2-622 affidavits. Instead, the court granted Respondent leave to file a motion to extend the time for filing 2-622 affidavits and signed medical reports from experts who would testify at trial.
SUBSEQUENT PROCEEDINGS IN THE CIRCUIT COURT
Respondent submitted medical records to Dr. Leslie for review on March 25, 2005. On April 20, 2005, Dr. Leslie signed a letter opinion that the cause of action had merit. This report was furnished to defense counsel on April 27, 2005 along with a supplemental motion for an extension of time to file the 2-622 reports. That motion was allowed on July 1, 2005.
The parties then litigated the issue of whether Respondent should be compelled to identify his consultant. On January 31, 2006, the Court ordered Respondent to identify his consultant for the reason that the consultant's opinion was the only opinion available to defeat the defendants' motions to dismiss, which were predicated on plaintiff's failure to timely file a medical opinion that there was a meritorious cause of action. Respondent filed a motion to reconsider that order, which was heard and denied on April 18, 2006.
Respondent disclosed Lerner's name and address on April 28, 2006. It was later determined that Lerner's medical licenses had been revoked as of the time he had determined there was a meritorious cause of action. Because Lerner was not a licensed doctor, Judge Frobish determined that Respondent had no opinion from any physician that there was a
meritorious cause of action prior to the expiration of the 90 day extension from the date that the suit was filed. Accordingly, the judge dismissed the Crull case with prejudice on October 10, 2006, reasoning that the plaintiff failed to meet the requirements of Section 2-622.
Respondent appealed and the appellate court affirmed. Crull v. Sriratana, 376 Ill.App.3d 803, 808 N.E.2d 753 (2007). Leave to appeal was sought in the Supreme Court, which was denied. However, the Court entered a supervisory order directing the appellate court to vacate its opinion and reconsider its judgment in light of a recently decided case, O'Casek v. Children's Home & Aid Society of Illinois, 229 Ill.2d 421, 892 N.E.2d 994 (2008). Crull v. Sriratana, 229 Ill.2d 619 (2007). The Appellate Court did so and determined that its original decision should stand. Crull v. Sriratana, 388 Ill.App.3d 1036, 1047, 904 N.E.2d 1183, 1192, 328 Ill.Dec. 673, 682 (4th Dist. 2009).
THE REVIEW BOARD'S ANALYSIS
Initially it is important to understand exactly what transpired on March 22, 2005, the first time that Respondent appeared before Judge Frobish.
March 22, 2005 - Geleerd explained that only his consultant signed an opinion letter.
After Judge Frobish noted that the medical opinion letters were unsigned and that they contained no letterheads, the following exchange, in part, occurred between the Judge and Respondent:
THE COURT: . I want to know from you, as an officer of this court, that you have got somebody. I want to know who he is, and I want to know why his name is not on here.
MR. GELEERD: I have two experts. One is a board certified internal medicine and nephrologist; and one is a board certified internal medicine and infectious disease expert. (Adm. Ex. 11, p. 7.)
THE COURT: . I want to be assured. I want the Appellate Court to be assured that you have someone on board right now that has seen this opinion letter to you and has said, Mr. Geleerd, I will sign that.
Let me ask this question. Have these experts signed these opinion letters already?
MR. GELEERD: One has not. The board certified internist with the specialty in infectious diseases has not. And the board certified internal medicine with the specialty in nephrology has reviewed the records. And he is the one who gave me a draft of the letter that I attached the 2-622. The actual 2-622 is what I sent down to him on march 18, which I have not received a copy of.
THE COURT: As you sit there now, there is not in your possession a signed opinion letter by anyone. Would that be true or not true?
MR. GELEERD: No, that is not true. I do have a signed opinion letter of a consultant who is an internal medicine physician. However, I am happy to disclose to this court the names of the two experts that I would put on the stand in front of the jury. I just would ask not to do that in front of defense counsel unless this Court is ordering me to do so, then, I would be happy to do so. But both of the individuals who I will disclose at this point in time will come on board as experts for the plaintiff to testify in this case. (Emphasis added; Adm. Ex. 11, pp. 9-10.)
The Administrator (Tr. 400) and the Hearing Board concluded that Geleerd's "One has not" statement meant that Geleerd was falsely representing that one of his testifying experts had signed a meritorious cause of action letter. But that's not what Judge Frobish heard, nor what Geleerd intended. We know it's not what the judge heard because he immediately responded with his statement that "there is not in your possession a signed opinion letter by anyone."
And that's when Geleerd responded, "I do have a signed opinion letter of a consultant who is an internal medicine physician," referring to the March 18 letter signed by Lerner, which was a truthful statement in so far as the comment referenced "a consultant."2 (Emphasis added; Adm. Ex. 29.) Geleerd then, in the same paragraph, discussed his two testifying experts who had not signed the opinion letters, but who Geleerd predicted "will come on board as experts." (Emphasis added.)
From that point on, the judge knew that only the consultant, not the testifying experts, had signed an opinion letter. Thus, the incorrect implication arising from the "One has not" comment had been immediately corrected.
There then ensued a discussion as to whether Geleerd must identify his testifying experts prior to their signing the opinion letters. After further colloquy, Geleerd said: "I am certain that within a very short period of time, I can get the two experts to sign letters identifying their name and address." (Emphasis added; Adm. Ex. 11, p. 17.)
Geleerd also commented on the reason why his testifying experts had not signed, and why he needed an extension of time, saying:
I would like to also say that if the circumstances were not what they have been over the last 90 days, I would have had both experts identified on their own letterhead with their own signatures. And that is why I was about to say I was grateful to defense counsel for waking me up on this case with regard to their motion due to the fact that I had inadvertently allowed this 2-611 period to go beyond the 90 days without motion for extension. (Emphasis added; Adm. Ex. 11, p. 13.)
So again, Geleerd was telling the court that his testifying experts had not yet signed even though the deadline for signing had passed.
Finally, the judge demonstrated his clear understanding that Geleerd had not represented that the testifying experts had signed letters, because he concluded the hearing with these comments:
I am telling you you better get these opinion letters here sooner rather than later. (Emphasis added; Adm. Ex. 11, p. 20.)
We will talk again by phone May 12. In the meantime, I would urge Mr. Geleerd to furnish these opinion letters signed by the good doctors to all of them. And I would urge Mr. Geleerd to file a motion explaining to the court that I have discretion under all these circumstances to allow a late filing. Okay? (Emphasis added; Adm. Ex. 11, p. 23.)
The docket entry by Judge Frobish for March 22 reiterates his understanding reflected in the above comments. In it he "directs" plaintiff to "submit authority" showing "that the court has authority to grant a late filing" of the "professionals report," referring to the opinion letters of the testifying experts that the judge knew had not yet been signed or filed. (Resp. Ex. 1, p. 2.)
Judge Frobish understood that the unidentified consultant was not Dr. Leslie.
In the "One has not" paragraph, Geleerd's reference to a "board certified internal medicine with the specialty in nephrology" as having "reviewed the records," and having given Geleerd "a draft of the letter" that he had attached to the 2-622 affidavit, was, in Geleerd's mind, a reference to Dr. Lerner. This was despite the fact that the specialties Geleerd described were those of Dr. Leslie, not those of Lerner. (Tr. 392.)
Based upon the exchanges between Judge Frobish and Geleerd, the judge understood on March 22, 2005, that the unidentified consultant, who Geleerd represented had signed an opinion letter, would not be one of the testifying experts. If Dr. Leslie was the consultant who had signed the letter opinion, and would also be a testifying expert, there would
have been no necessity for an extension of time to file his letter. Geleerd could have given it to the judge on the day of the hearing.
Additionally, the parties are in agreement that on May 12, 2005, Respondent expressly informed the judge that Dr. Leslie had not authored the report tendered to the court on March 22, 2005, which Geleerd represented his consultant had signed. (C54, Hearing Bd. Report, p. 9.) Finally, on October 10, 2006, when Judge Frobish dismissed the case, he expressly stated that he had understood at the outset of the case that Dr. Leslie "was not the author of the earlier report." (Adm. Ex. 47, p. 33.)
THE HEARING BOARD'S FINDINGS
The Hearing Board, in its Report, made several findings with regard to Respondent's alleged misconduct. For convenience, we have numbered the findings and now address each of them.
Hearing Bd. Finding No. 1: Geleerd falsely represented that his two testifying experts were "engaged" in the Crull matter.
In the Hearing Board's Findings and Conclusions of Law, no specific reference is made to any parts of the transcript except the "One has not" paragraph, which the Hearing Board set forth verbatim. On the basis of that isolated paragraph, and without considering the later paragraphs of the colloquy, the Board found that Geleerd's statements were "false" and "intentionally misleading." (Hearing Bd. Report, p. 25.) It acknowledged "that Respondent attempted to clarify his statement," but then said, "we find that the court was still led to believe that Respondent had two experts engaged in the Crull matter at the time of the March 22, 2005 hearing, which was false," and that therefore Geleerd had violated Rule 3.3(a)(1) of the Rules of Professional Conduct.3 (Emphasis added; Hearing Bd. Report, p. 25.)
This finding of Geleerd falsely representing that two experts had been "engaged" at the time of the March 22, 2005, hearing is vague and imprecise. If the Hearing Board meant to say that Geleerd had represented, as the Administrator claimed (Tr. 400), that one of the testifying experts had signed an opinion letter, the finding is against the manifest weight of the evidence, or alternatively, is factually erroneous because the court transcript is a document that the Review Board can read as easily as the Hearing Board.4
As the record clearly shows, and as explained, in context Geleerd truthfully represented that the testifying experts had not signed the opinion letters, and that only his consultant had. The "One has not" comment, implying that one of his testifying experts had signed,5 was, as noted, immediately corrected, probably within seconds after the comment had been made.
If the term "engaged" meant something less than having signed opinion letters, such as Geleerd having contacted the testifying experts to become involved in the case prior to March 22, 2005, the Hearing Board's finding is still contrary to the record made before it and therefore against the manifest weight of the evidence. Geleerd testified at the ARDC hearing that he had discussions with both of his testifying experts in November of 2004 about the Crull case, advising them that Dr. Lerner had favorably reviewed the case, and that they had agreed to support the plaintiff's position if, after reviewing the medical records, they agreed with Dr. Lerner. Geleerd also testified that he had worked with these doctors previously. (Tr. 240-241, 242, 316-317, 318.) Geleerd had made these same statements at a hearing before Judge Frobish on April 18, 2006. (Adm. Ex. 27, p. 8.)
Based on those telephone calls, and Geleerd's prior work with those experts, he believed they would support his case. That was why he informed the judge on March 22 that he "ha[d] two experts" with the specialties described. (Tr. 330; Adm. Ex. 11, p. 7.)
Geleerd's testimony regarding these telephone calls to his experts was uncontradicted and was corroborated by the fact that he had offered the same remembrances on April 18, 2006 before Judge Frobish. A trier of fact may not willfully disbelieve uncontradicted testimony which is not inherently improbable. See Bazydlo v. Volant, 164 Ill.2d 207, 207 Ill.Dec. 311, 315, 647 N.E.2d 273, 277 (1995). And this rule applies "even though the witness may be an interested party." Cockrell v. Koppers Industries, Inc., 281 Ill.App.3d 1099, 217 Ill.Dec. 587, 593, 667 N.E.2d 676, 682 (1st Dist. 1996). Circumstantially, the fact of the prior contacts with his experts is borne out by Dr. Leslie furnishing a signed opinion letter on April 20, 2005, which was less than a month after the March 22 hearing. (Adm. Ex. 14.)
Curiously, in its very next paragraph, the Hearing Board seemingly contradicted its finding that the testifying experts were not "engaged" in the case prior to March 22, 2005. In that paragraph it found for Geleerd with regard to statements he made at the April 18, 2006 hearing before Judge Frobish. (Adm. Ex. 27, p. 8.) The Hearing Board, in its report (p.26), said:
Based on the testimony, regarding whether Respondent's experts "were on board" verses whether his experts were engaged in the matter prior to the March 22, 2005 hearing, we find that the Administrator failed to provide clear and convincing evidence as to whether these statements were false.6
In our view, it was not legally correct for the Hearing Board to find professional misconduct by splitting hairs over a supposed difference in meaning between phrases like "on board" and "engaged,"7 particularly when the latter term was not a word used by Geleerd at the March 22, 2005 hearing.
Finally, under the rule found to have been violated, Rule 3.3(a)(1), the false statement must be "material." "Material" means that the fact or facts found must be of consequence.8
As this matter unfolded, what was of consequence to Judge Frobish with respect to the motions to dismiss was whether one or more experts had agreed, within the 90 day extension, that there was a meritorious cause of action. Experts could have been "engaged" in the Crull matter well before March 22 and still, for any number of reasons, not have determined within the 90 day period whether the case had merit.
As a result, when an expert was "engaged" on the case, if the term meant something less than the expert having an opinion on the merits, was not of consequence to any issues Judge Frobish was considering.
Hearing Bd. Finding No. 2: Respondent filed false affidavits with the intention of misleading the court into believing that his testifying experts had concluded his case had merit.
With respect to the affidavits and medical opinion letters that Respondent drafted, the Hearing Board found:
The affidavits and letters were filed with the court; and
"We find that Respondent filed the affidavits with the intention of misleading the Court into believing that he had engaged two medical experts in the Crull matter and those experts believed the Crull matter had merit." (Hearing Bd. Report, pp. 26-27.)
Those findings and related conclusions are unsupported by the record.
THE AFFIDAVITS WERE NOT LEGALLY FILED WITH THE COURT.
First, the record does not show that the affidavits and unsigned opinion letters were filed with the court as the Hearing Board found. Administrator's Group Exhibit 10 contains those documents. None of them show a court file stamp.
Geleerd testified that he went to the March 22 hearing with an emergency motion for leave to file the affidavits instanter. (Tr. 325-326.) The record made before Judge Frobish shows that Geleerd handed the originals of the instanter motion and the affidavits with the unsigned opinion letters to the judge. (Adm. Ex. 11, pp. 3 & 6.) The docket entry for March 22, 2005, authored by the judge, also shows that the Motion for Leave to File the affidavits and the unsigned opinion letters with those documents attached to or accompanying the motion were filed, presumably by the judge after Geleerd handed the documents to him. (Resp. Ex. 1, p. 2.)
Thereafter, the discussion ensued where Geleerd informed the court that only his consultant had signed an opinion letter, and where he asked for additional time to have his testifying experts sign such letters. The transcript does not show that following such discussion Geleerd persisted in his request for court leave to file the affidavits and unsigned letters. Based on the ARDC transcript and the record made before Judge Frobish, it is clear the affidavits and unsigned letters were not filed pursuant to court leave. Near the end of the hearing, Judge Frobish said:
Mr. Geleerd, I am going to reserve ruling today. I am granting you leave to file your motion for extension. I am reserving ruling. I am telling you you better get these opinion letters here sooner rather than later. (Emphasis added; Adm. Ex. 11, p. 20.)
No mention is made by the judge that he was granting the instanter motion for leave to file the affidavits and unsigned letters, and Geleerd testified that the instanter motion was not granted. (Tr. 377.) Additionally, the court's docket entry for that day does not show that Geleerd's motion for leave to file the affidavits was granted. Instead it states:
The court reserves ruling and directs that plaintiff file the appropriate health care professionals report as soon as possible. . (Resp. Ex. 1, p. 2.)
Thus, by the end of the March 22 hearing, the affidavits and unsigned opinion letters had lost whatever significance they might have had. Instead, the focus had shifted to obtaining letters from the testifying experts. Indeed, Geleerd testified that the unsigned opinion letters were "moot," once the court had ordered him to file a signed letter, a statement he had also made in his September 8, 2006, brief. (Tr. 334; Adm. Ex. 44, p.5.)
Thereafter, on May 2, 2005, Geleerd filed a Supplemental Motion for leave to file an amended 2-622 affidavit to accompany Dr. Leslie's opinion letter. (Resp. Ex. 2.) That motion was allowed on July 1, 2005. (Adm. Ex. 16, p. 18; Resp. Ex. 1, p. 4.) As a result the Dr. Leslie filing supplanted the initial affidavits and unsigned opinion letters which had never been filed pursuant to court leave.
The unsigned opinion letters were included in the Livingston County Court file only as attachments or accompanying documents to Geleerd's initial motion seeking leave to file them. (Res. Ex. 1, p.2.) Therefore, under either de novo review or manifest weight standards, the Hearing Board's finding that Respondent filed the affidavits must be reversed.
Geleerd did not utilize the affidavits to misrepresent that his testifying experts had signed opinion letters.
A second issue is whether Geleerd's drafting of the affidavits and unsigned letters, and then presenting them to the judge with a motion for leave to file, was misrepresentation in violation of Professional Conduct Rule 8.4(a)(4), was the offering of evidence that Respondent knew to be false in violation of Rule 3.3(a)(4), and was creating or preserving evidence that Respondent knew or reasonably should have known was false in violation of Rule 3.3(a)(5). The Hearing Board determined that Respondent had violated all of those rules. (Hearing Bd. Report, pp. 26-28, C210-C212.)
The violations were based on a factual finding substantially similar to the Hearing Board finding relative to Respondent's oral representations of March 22, 2005 (HB Finding No. 1, supra):
We find that Respondent filed the affidavits with the intention of misleading the court into believing that he had engaged two medical experts in the Crull matter and that those experts believed the Crull matter had merit. (Hearing Bd. Report, pp. 27-28, C211-C212.)
But as discussed, Geleerd told the court on March 22, 2005 that only his consultant had signed a letter opinion, which was dated March 18, 2005. (Adm. Ex. 29.) So the Board's supposition regarding Geleerd's "intention of misleading the court into believing" that his testifying "experts believed the Crull matter had merit" was unfounded. The Hearing Board simply had no basis to ascribe to the unfiled affidavits a meaning or intention that Geleerd, on the record and before the judge, was orally denying.9
In short, disciplinary violations cannot be predicated upon a speculative or surmised future "intention" that does not reach fruition. As the title of our Rules of Professional Conduct imply, they govern conduct, not intentions unaccompanied by wrongful acts. Regardless of Respondent's intentions prior to arriving at the hearing, once there, he disavowed any claim that the affidavits and unsigned opinion letters represented any medical doctor's opinion other than that of his unnamed consultant. And as shown, Judge Frobish clearly understood that this was the case.
Accordingly, Geleerd did not utilize the affidavits in an effort to mislead the judge into thinking that his "two medical experts believed the Crull matter had merit." (Hearing Bd. Report, pp. 27-28.) Instead, he did exactly the opposite, and as noted, by the end of the hearing on March 22, 2005, the unsigned letter opinions had become "moot." (Tr. 334; Adm. Ex. 44, p. 5.)
The affidavits and unsigned letter opinions only gained significance at a later time when Judge Frobish ordered Respondent to disclose his unnamed consultant. But the judge's very reason for entering the disclosure order was that Respondent had continually made clear, commencing on March 22, 2005, that the affidavits and unsigned medical letters represented only the opinion of his unnamed consultant, and that Geleerd had no other experts who "believed the Crull matter had merit," as of the deadline date for filing a 2-622 report. Thus, the affidavits and unsigned letter opinions were never either on March 22, 2005, or later used for the purpose of attempting to mislead the judge.
As a result, the Hearing Board's findings with respect to the affidavits are without basis in the record made before Judge Frobish. Therefore, under either de novo review or manifest weight standards, those findings must be and are reversed.
Hearing Bd. Finding No. 3: Geleerd misidentified his consultant's medical specialty.
The somewhat garbled "One has not" paragraph contains false or incorrect statements. In this paragraph, Geleerd told the judge that "the board certified internal medicine with the specialty in nephrology has reviewed the records. And he is the one who gave me a draft of the letter that I attached the 2-622." (Adm. Ex. 11, pp. 9-10.)
Based on what Geleerd told the judge in the next paragraph of the transcript regarding his consultant having been the only doctor signing an opinion letter, as well as what later transpired, we know that Geleerd was referring to Dr. Lerner, not Dr. Leslie, his testifying expert. And as previously explained, Judge Frobish understood this to be the case.
Additionally, Geleerd later, and for a second time, referred to the consultant as "an internal medicine physician." (Adm. Ex. 11, p. 10.) But Dr. Lerner, the consultant, was not an internal medicine physician, and he had no specialty in nephrology.
With regard to the misidentification of Lerner's specialty, Geleerd testified at the ARDC hearing as follows:
Dr. Lerner was a neurosurgeon. The only way that I can piece in my mind how these words [misidentifying Lerner's specialty] could have come out was I had to have had in my hand, as I was responding to Judge Frobish's examination of me, Dr. Lerner's report attached to my 2-622. I did not intentionally call Dr. Lerner an internist or having a specialty in nephrology because I know he did not. (Tr. 392.)
The report that Geleerd "had in [his] hand" which Dr. Lerner signed referred to himself as having a "specialty of internal medicine/nephrology." (Adm. Ex. 29.) This was because the letter was initially drafted for Dr. Leslie and both Geleerd and Lerner neglected to change it prior to Lerner signing so as to show his correct specialty. (Tr. 383-384.)
The findings with respect to the "One has not" paragraph are confusing and unclear. After quoting the entire paragraph, the Hearing Board described it as a "statement to the court" which was "false" and said that "Respondent has admitted the statement was false." (Hearing Bd. Report, p. 25.) Actually, Geleerd only admitted that he had misidentified Lerner's specialty.10 (Tr. 332-333.) Certainly, he did not admit as false the statement within the quoted paragraph that "[t]he board certified internist with the specialty in infectious diseases has not" signed the letter of merit. That was a true statement.
Since Geleerd did admit he misidentified the consultant's specialty, it must be assumed that the Hearing Board had found his statements in that regard to be false. However, the Hearing Board did not state whether it made the finding because Geleerd actually knew the statement was false or because it was a matter about which he "reasonably should" have "know[n]" under Rule 3.3(a)(1). As a result, the Review Board must make this "additional finding" pursuant to Supreme Court Rule 753(d)(3).
Because Geleerd was truthfully telling the judge that only his consultant had signed an opinion letter, and in light of his explanation for the misidentification of the consultant, no clear and convincing evidence exists which shows that Geleerd intentionally made the misstatements regarding Lerner's specialty. As a result, we find that Respondent violated Rule 3.3(a)(1) only because the false statement regarding the consultant's specialty was a matter of which he reasonably should have known.11
Hearing Bd. Finding No. 4: Geleerd made a "false and misleading" statement in his September 8, 2006, brief.
The Hearing Board found (p. 26) to be "false and misleading" the statement in Geleerd's September 8, 2006, brief which said, "as has been previously put into the record, Dr. Leslie and Frank Rhame, M.D., were on board and supported the meritorious basis of this cause of action, prior to the expiration of the statute of limitations." (Adm. Ex. 44, p. 6.) Presumably, the Hearing Board was referring to the "meritorious cause of action" part of the sentence, not the "on board" phrase.12 While the "meritorious cause of action" segment of the sentence was certainly false, it was in no way "misleading," as the Hearing board found, and in context it was immaterial.
Considering the context and status of the case at the time of the filing of the September 8, 2009, brief, it is clear that Geleerd was not intentionally making the claim that the sentence conveys. In the same brief, he said exactly the opposite. At p. 17 of Adm. Ex. 44, Geleerd also wrote:
Plaintiff has consistently argued to this Honorable Court that had Plaintiff not complied with Supreme Court Rule 201(b)(3), retaining the consultant, Plaintiff would not have been able to file his Complaint within the period prior to the expiration of the statute of limitations. (Emphasis added.)
The foregoing statement meant that without his consultant, Geleerd had no expert verifying that there was a meritorious cause of action prior to the expiration of the statute of limitations. But Geleerd had done more than simply contradict his earlier false sentence in the same brief. As the above statement points out, he had "consistently" taken a position contrary to that false sentence.
Several months before, at a hearing on April 18, 2006, he carefully explained, in response to questions from the court, that his testifying experts, although initially contacted in November of 2004, had not reviewed the medical records prior to the March 22, 2005 hearing because he had not yet sent the records to them.13 He readily conceded that, as of March 22, his testifying experts had no basis for determining whether a meritorious cause of action existed. (Adm. Ex. 27, pp. 7-9.) Geleerd told the judge that "[t]he only one who could do that was my consultant." (Adm. Ex. 27, p. 9.)
Thus, long before Geleerd filed his brief of September 8, 2006, he had represented to the judge that only his consultant had an opinion as of March 22, 2005 that there was a meritorious cause of action. And he repeated this representation in the same brief where he made the contradictory incorrect statement that his testifying experts had such an opinion as of that date.
This panel can only attribute his false statement to excessive exuberance in dictating or otherwise preparing his brief, and then failing to review and edit his draft. Given what had transpired several months earlier and in the same brief, it makes no sense to conclude that Geleerd really meant to tell the judge at that late juncture that his testifying experts had actually concluded that there was a meritorious cause of action prior to the statute of limitations expiring.
In any event, there is no way that this isolated sentence in Geleerd's brief could have misled the judge. Nor was it material. The issue of which experts could have determined whether there was a meritorious cause of action had been decided long before September 8, 2006.
Judge Frobish initially decided on January 31, 2006 that Geleerd would have to disclose his consultant. The judge's reason for this decision was that Geleerd used the consultant's opinion letter, signed on March 18, 2005, to defeat the motions to dismiss. Geleerd's very reason for relying on the consultant's letter was that his testifying experts had offered no opinion on the merits of the cause of action as of that date. (Adm. Ex. 22, p. 28.)
The hearing on April 18, 2006 was on a motion for reconsideration of the January 31 ruling, which the judge denied. So, as of April 18, 2006, the issue of which experts supported the merits of the cause of action in March 2005 had become a final and closed matter before Judge Frobish.
As a result of Judge Frobish's rulings of January 31, 2006 and April 18, 2006, Geleerd was forced to disclose the identity of his consultant, Dr. Lerner. Once that occurred the matter of Lerner's medical licensing became the issue. The September 8, 2006 brief containing the contradictory statements had to do with whether Geleerd's case should be dismissed outright because Lerner's license had been revoked. That brief was submitted for the hearing which occurred on October 10, 2006, where Judge Frobish dismissed the case with prejudice because of Lerner's lack of a license. (Adm. Ex. 47, pp. 34-40.)
In short, the isolated and contradicted statement in Geleerd's brief of September 8, 2006, which the Hearing Board found to be "false and misleading," involved an issue that had been finally decided months earlier. It was totally immaterial or of no consequence to the issue
of Lerner's licensure, and whether his lack of a license was grounds for dismissal. As a result, based on de novo review or manifest weight standards, there was no violation by Geleerd of Rule 3.3(a)(1), which requires that a false statement be "material."
Finally, it should be noted that Respondent, in his brief to the Review Board, did not specifically address the Hearing Board's finding with respect to the "false and misleading" statement appearing in his September 8, 2006 Livingston County brief. However, Point IV of his Review Board brief (pp. 23-26) broadly challenges the Hearing Board's finding of "intentional misconduct" and "misrepresentation." Issue Presented For Review No. 4 does the same. (Respondent's Brief, p.3.)
Regardless of whether Respondent might have waived this issue under Commission Rule 302(f)(5), we have elected to consider it in the interest of reaching a just result and because the issue is intertwined with other issues of misrepresentation. Waiver or "forfeiture is a limitation on the parties," not the tribunal considering the matter. O'Casek v. Children's Home and Aid Society of Illinois, 229 Ill.2d 421, 438, 892 N.E.2d 994, 1005, 323 Ill.Dec. 2, 13 (2008).
Hearing Bd. Finding No. 5: The Administrator failed to meet his burden of proof regarding Geleerd's representation that a response to a request to admit was under oath.
In the same September 8, 2006 brief previously discussed, Geleerd responded to a defense motion seeking to have certain facts regarding Dr. Lerner's qualifications and lack of a medical license deemed admitted. The facts were contained in a Request to Admit (Adm. Ex. 33), and Geleerd, on behalf of the plaintiff, had filed a response, but the response was not under oath as required by Supreme Court Rule 216(c). (Adm. Ex. 37.) Nonetheless, Geleerd, in his September 8, 2006 brief, incorrectly asserted that his answer to the Request to Admit contained a
"1-109 Certification"14 and therefore was "in compliance with Supreme Court Rules." (Adm. Ex. 44, p. 2.)
The Administrator, in his Complaint, specified the foregoing incorrect statement as a matter that Geleerd "knew or should have known was false" and made with the intention "to mislead the court." (C63, par. 57.) The Hearing board found that the "Request to Admit was not offered into evidence" and therefore ruled against the Administrator, stating that there was "no evidence supporting the Administrator's allegation." (Hearing Bd. Report, p. 26.) The Administrator challenges this finding on review, correctly asserting that the Request to Admit was in fact entered into evidence. Again, see Adm. Ex. 33, which is the Request, and Adm. Ex. 37, which is Geleerd's response to the Request.
Upon consideration of this issue, we reject the Hearing Board's reason for finding against the Administrator, but affirm the finding itself on entirely different grounds.
Prior to filing his September 8, 2006 brief, Geleerd had orally admitted to Judge Frobish on July 5, 2006 that the certification was omitted and stated, "that was inadvertent . I don't know why it was the 1-109 language was omitted." He also said at that same hearing that he had "no reason to believe" the defense attorneys were "wrong" about "Dr. Lerner's lack of qualification." (Adm. Ex. 42, p. 5.)
The unsworn Answer to the Request to Admit did not deny any of the facts relative to Lerner's lack of qualifications for which admission was sought, although some of the responses were couched in "neither admits or denies" language because of "having insufficient knowledge." (Adm. Ex. 37, pp. 1-2.) The answer contained no explanation as to why Geleerd or his client lacked sufficient knowledge to answer. Under Supreme Court Rule 216(c), the matters of fact would have been deemed admitted even with a signed 1-109 certification because the
response must set forth "in detail the reasons why" the answering party "cannot truthfully admit or deny" the matters for which inadequate knowledge is claimed.
The Administrator asks the Review Board to find a violation of Professional Conduct Rule 3.3(a)(1) which prohibits a lawyer from "mak[ing] a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false." Because the facts sought to be admitted would have been deemed admitted regardless of the existence of the certification, the incorrect statement regarding the certification was not "material," as the professional conduct rule requires.
Additionally, the lack of materiality is essentially borne out in the same brief where Geleerd's misstatement regarding the certification is made. On the very next page, Geleerd stated:
It has been revealed that Mr. Geleerd's Original 2-622 Affidavit, more likely than not, is supported by a false physician's report, albeit, signed by Lerner. (Adm. Ex. 44, p. 3.)
And again on p. 4 of the same brief, Geleerd stated that he had "no basis or information to suggest that Defense Counsel's investigation into Lerner is not accurate."
This same point was explained during Geleerd's testimony before the Hearing Board with regard to the incorrect statement about the certification. The record contains these questions and answers:
Q. Did it in any way affect the case?
A. Oh, no, no, no, because we weren't disputing anything.
A. Did you ever dispute this licensure thing against Dr. Lerner? Did you ever say, "No, no. He is licensed"?
A. I never did. (Tr. 346.)
This was clearly understood by defense counsel , who said in oral argument after the subject brief had been filed, that Geleerd "in various pleadings and appearances before this Court, has not contested" the licensure issue. (Adm. Ex. 47, p. 4.)
Because Geleerd did not contest the issue of Lerner's license, and because the response to the Request legally admitted the facts for which admission was sought, clear and convincing evidence does not exist which shows that the incorrect certification statement was material.15 The Administrator's argument that the statement was material because Geleerd risked a dismissal if the response to the Request was unsworn is not persuasive. Since Geleerd did not claim, as of the time of the September 8, 2006 false statement, that Lerner possessed a valid medical license, his defense against dismissal was grounded on other reasons not the undenied statements in the Request to Admit. See Adm. Ex. 44, which is Geleerd's September 8, 2006 brief.
While not necessary to our decision, it appears obvious that Geleerd's misstatement was simply careless and inadvertent. He testified that when he made the representation, he did so because he "could not imagine that something as basic as 1-109 language that goes on the signature of the party was not there." (Tr. 346.)
Surely, no lawyer in his right mind, who had earlier told the judge face to face that the certification had been inadvertently omitted, would, two months later, deliberately lie and claim that the certification was present after all. The judge probably would have remembered the earlier conversation, and the issue was easily verifiable by the judge anyway. He could have simply looked at the response to the request and note the lack of a certification.
Geleerd's misstatement, like his other misstatements, does demonstrate that his memory was poor and his attention to detail was quite sloppy, possibly because of his sudden
responsibility for over 300 files and working 18 hour days resulting from the death of his partner. (Tr. 321-322,324.)
Hearing Bd. Finding No. 6: Respondent did not engage in misconduct when he forwarded to defense counsel a copy of a letter from Dr. Lerner in which the doctor falsely claimed he was licensed to practice medicine.
An important issue in this case was whether Geleerd knew that Lerner possessed no valid medical license. Judge Frobish ultimately determined that the case had to be dismissed because of Lerner's lack of a license.16 The Hearing Board determined that Geleerd "relied on representations made by Lerner" and "did not know that" Lerner's May 4, 2006 letter, which Geleerd forwarded to defense counsel, contained false and misleading statements that Lerner was licensed to practice medicine. (Hearing Bd. Report, p. 26.)
The Administrator did not seek review of this finding in its brief to the Review Board so we have no occasion to further consider this issue. Similarly, we have no occasion to consider the issue of whether Dr. Lerner was qualified to offer an opinion of merit regardless of his licensing status, and whether Geleerd "reasonably believed," under 735 ILCS 5/2-622(a)(1), that Lerner was qualified to sign a letter of merit. See note 11. The Administrator's Complaint in paragraph 7 (C51) hints that this was an issue. However, the Hearing Board made no finding with respect to this matter and the Administrator has not sought review of this issue.
REVERSAL OF PREJUDICE FINDING
Because of the foregoing rulings, we reverse the Hearing Board's finding that Respondent violated Rule 8.4(a)(5) and Supreme Court Rule 770 relating to conduct that is prejudicial to the administration of justice. The case of In re Vrdolyak, 137 Ill.2d 407, 525, 560 N.E.2d 840, 847, 148 Ill.Dec. 243, 250 (1990) holds that clear and convincing evidence must establish that the administration of justice was actually prejudiced. Judge Frobish fully
understood this case, commended Respondent for being an honorable lawyer, and his rulings were unaffected by Respondent's misidentification of the consultant's specialty.
THE APPROPRIATE SANCTION
Because our review of this case has resulted in a reversal of all findings against Respondent except with respect to his misidentification of the consultant's specialty (Hearing Bd. Finding No. 3, supra), the sanction recommended by the Hearing Board, and the increased sanction sought by the Administrator, are inapposite. As a result, the sanction must be considered anew.
In mitigation, we note that the misidentification was inadvertent and accidental. Also, we previously observed in note 11 that it is reasonably debatable as to whether the misidentification was material.
Additionally, Respondent presented unusually impressive reputation and character evidence. Four circuit judges, one of them retired and one a former member of the ARDC Hearing Board, all stated that "Respondent has an excellent reputation for honesty, integrity ... ethics, ... [and] treatment of other lawyers and judges in the court." (Hearing Bd. Report, pp. 19-21.) The Assistant Bureau Chief of the Fraud Unit of the Illinois Attorney General's Office, as well as a law professor and academic dean at John Marshall Law School, offered the same opinion. (Hearing Bd. Report, pp. 20-21.)
Judge Frobish's opinion of Geleerd was also favorable. On numerous occasions, he complimented Geleerd for being an honorable lawyer. Even when the judge finally denied the motion for reconsideration with respect to the necessity for disclosing Lerner's identity, and telling Geleerd that the case would be dismissed if he did not disclose him, he said:
The integrity of Mr. Geleerd here is not at issue. I have been impressed that Mr. Geleerd is an honorable attorney. And that is not at issue. (Emphasis added; Adm. Ex. 27, p. 30.)
And finally on October 10, 2006 when Judge Frobish dismissed the case and found "fraud" only on Lerner's part (Adm. Ex. 47, p. 39), he still said that he assumed Mr. Geleerd was "an honest lawyer." (Adm. Ex. 47, p. 37.)
Finally, Respondent has been licensed to practice in Illinois since 1989 and has no prior discipline. Respondent has been active in the Bar Association, has published legal articles, and has taught legal writing at John Marshall Law School.
In aggravation, we consider only Respondent's tendency, in speaking to the court and in presenting written material, to make reckless statements without thinking or editing, which he probably never meant to say or write. We are alluding to the matters for which we found no violation because the statements were immaterial.
The Hearing Board considered as aggravation "the time defense counsel spent drafting and arguing pleadings regarding the author of Respondent's medical reports." (Hearing Bd. Report, p. 30.) There had been a long drawn out court battle over the legal issues of whether the identity of Geleerd's consultant had to be disclosed, and whether the consultant's lack of a license was grounds for dismissal of the case. But those were not issues relating to any claim of misrepresentation or of misleading the judge. It certainly had no bearing on the issue of misidentifying the consultant's medical specialty, the lone violation we have affirmed.
When Judge Frobish finally dismissed Geleerd's lawsuit, he summarized what the legal battle had been about:
Should the plaintiff or plaintiff's attorneys pay for all of this legal work that has been going on this past year as we have fought
about Mr. Lerner. That remedy is not specifically authorized by the statute as I see it ... . (Adm. Ex. 47, p. 39; Emphasis added.)
With respect to the request for fees and costs, on this record, I am denying it. (Adm. Ex. 47, p. 40.)
The judge's denial of fees and his discussion of "the statute" undoubtedly was a reference to Illinois Supreme Court Rule 137 which authorizes attorney fees on account of the filing of papers that are not "well grounded in fact." Judge Frobish obviously did not conclude that the lengthy legal battle had anything to do with misrepresentations of fact by Geleerd; and he prefaced his remark regarding attorney fees by saying, "I gave some thought to whether there is some financial remedy." (Adm. Ex. 47, p. 39.)
We agree with Judge Frobish's conclusion that the defendants' legal work generated by the issues of law regarding Lerner was unrelated to the claims of misconduct against Respondent.17
Based on the foregoing, we recommend that Respondent be censured, a sanction that Respondent had agreed was appropriate. (Respondent's Brief, p. 40.) A censure would be consistent with discipline imposed in cases involving similar misconduct. See In re Stern, 124 Ill.2d 310, 529 N.E.2d 562 (1988) (censure rather than suspension appropriate for attorney without any prior discipline who backdated a letter but did not intend to perpetrate a fraud upon the court); In re Palivos, 95 CH 504 (Hearing Board, Sept. 5, 1996), approved and confirmed, No. M.R. 12971 (Nov. 26, 1996) (respondent censured for filing a response to a motion to dismiss with attachments that, unbeknownst to the respondent, were fabricated).
In preceding sections of this report, we have identified each finding of the Hearing Board so that the same could be analyzed in light of the applicable standard of review.
Respectfully, the dissent has not responded to our analysis of those findings. Instead, it has focused on other issues.
For example, with respect to both the March 22, 2005 hearing and the presentation of the affidavits with the unsigned letter opinions, this report explains that the crux of the Hearing Board findings was that Respondent was attempting to mislead the court into thinking that his two testifying experts had concluded the Crull case had merit. Our report has shown that the court record simply fails to establish this premise of the Hearing Board Report.
The dissenting opinion does not address this issue, but instead focuses on Respondent's misidentification of his consultant's specialty, which was the basis for our censure recommendation.
Similarly, the dissent suggests that Lerner, regardless of his lack of a license, was not medically qualified to render an opinion because he was not board certified in the necessary specialties. However, the Hearing Board made no finding relative to this issue, and the Administrator did not raise the matter before the Review Board. Also see note 11 which shows that the same specialty is not required.
Additionally, the dissent hints that Respondent knew or should have known that Lerner was not licensed. The Hearing Board resolved this issue in Respondent's favor and that finding has not been challenged on review. So it is a closed issue.
Finally, the dissent cites a gratuitous comment of the appellate court to show that Respondent was trying to hide Lerner's identity and lack of a license.18 Again, this comment relates to the issue of Respondent's knowledge of Lerner's licensing status, an issue that is not before this panel. Regardless, an appellate court's comment in a civil matter has no binding effect in lawyer disciplinary matters. Instead, it is the task of the Hearing and Review Boards,
and ultimately the Supreme Court, to resolve such cases. See, e.g., In re Owens, 125 Ill.2d 390, 401, 532 N.E.2d 248, 253, 126 Ill.Dec. 563, 568 (1988).
As a result, we respectfully disagree with our colleague's dissent.
Postscript ─ Imperfect Advocacy vs. Professional Misconduct
This case involves the not always clear line to be drawn between allowable, but imperfect advocacy and professional misconduct. In courtrooms all across America every day, lawyers make mistakes, they are sometimes careless and sloppy, and they push the envelope, so to speak. As advocates, they are often less than objective and they attempt to gain every advantage from real or perceived weaknesses in the positions of their adversaries.
Our disciplinary system cannot be so unforgiving that every misstatement of a lawyer offered in the heat of courtroom battle ends up as an ARDC matter. One need look no further than the disciplinary proceedings in this case to appreciate the problem. The Administrator's trial counsel asked Geleerd whether his instanter motion for leave to file the unsigned opinion letters had been granted, and Geleerd responded, "No." The following then transpired:
Q. But that's contrary to what Judge Frobish wrote on the docket sheet where it says on Page 2 of Administrator's Exhibit No. 1 on the 3/22/05 date, the third paragraph, "Mr. Geleerd files this day the motion for leave to file the 5/2-622 affidavits and makes three separate filings containing the attorney's affidavit and an unsigned opinion letter," correct?
A. That's exactly what the half sheet says, yes. (Tr. 377; Emphasis added.)
Thereafter, and presumably on the basis of the foregoing evidence, the Administrator's counsel successfully argued to the Hearing Board that the affidavits and opinion letters had been filed. (Tr. 406.) But as this report shows, neither the docket sheet, nor transcript, indicates that the motion was granted. The filings referenced in the docket sheet were
attachments or accompanying documents to the instanter motion, which is usual practice for any proposed filing.19
Should not the Administrator's counsel have known this and conceded that the affidavits were not filed pursuant to court leave? This fact was arguably important because it corroborated Geleerd's defense that, once in the courtroom, he made no attempt to mislead the judge with the affidavits.
Similarly, the Administrator's counsel seized upon the "One has not" paragraph to claim that Geleerd represented to Judge Frobish that one of his testifying experts had signed a letter opinion. She did it during questioning of Geleerd (Tr. 255) and again in final argument. (Tr. 400.) As noted, this claim on her part was a skewed reading of the record because 8 lines later in the transcript, probably within 20 seconds at the hearing, Geleerd corrected the misstatement by telling the judge that only his consultant, and neither of the testifying experts, had signed a letter opinion. (Adm. Ex. 11, pp. 9-10.)
And she was apparently successful in her argument because the Hearing Board quoted only the "One has not" paragraph in making its finding that Geleerd made false and misleading statements. (Hearing Bd. Report, p. 25.) Again, should not counsel have carefully explained to the Hearing Board that Geleerd corrected his misstatement, and that he had actually represented to the judge that only his consultant had signed a letter opinion?
Yet, if the Administrator's counsel was to be subject to a disciplinary complaint for the foregoing conduct, we might as well shut down America's courtrooms. No lawyer would be immune from a similar complaint. In short, our adversary system encourages zealous, but not always perfect, advocacy. In our view, most of the charges against Respondent, like the examples above, were instances of imperfect advocacy not professional misconduct.
We recommend that the Hearing Board's findings be reversed except for the finding that Respondent violated Rule 3.3(a)(1) when he misidentified his consultant's specialty. We recommend that Respondent be censured.
Date Entered: 22 November 2010
1 The Hearing Board Report, pp. 1-24 (C185-C208), contains an extensive and detailed presentation of the facts.
2 Lerner was a neurosurgeon, not an internal medicine physician. So that aspect of Geleerd's comment was untrue and is discussed later in this report.
3 Rule 3.3(a)(1) prohibits a lawyer who appears "in a professional capacity before a tribunal" from making "a statement of material fact or law which the lawyer knows or reasonably should know is false."
4 A de novo standard of review applies when the fact finder reaches its determination on the basis of documentary evidence. See, e.g., Rosenthal-Collins Group, L.P. v. Reiff, 321 Ill.App.3d 683, 687, 254 Ill.Dec. 783, 787, 748 N.E.2d 229, 233 (1st Dist. 2001).
5 Interestingly, the "One has not" statement was literally true. That is, one of the testifying experts had not signed an opinion letter. Of course, a second testifying expert also had not signed. However, in criminal law, a statement's negative implication is legally insufficient to support a false statement conviction. The statement itself must be literally untrue. See Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).
Because the implication of Geleerd's statement was immediately corrected, we are not called upon to decide whether the criminal law rule should apply with respect to a Rule 3.3(a)(1) violation.
6 This finding of the Hearing Board was not challenged on review by the Administrator.
7 Geleerd testified that he thought "on board" referred to the experts "on your team." (Tr. 327.) Both phrases, "engaged" and "on board," are ambiguous.
8 Under modern cases and Federal Rule of Evidence 401, the phrase "fact of consequence" is now preferred over "the loosely used and ambiguous word material.' " Comments to 1972 Proposed Rules following the text of Federal Rule of Evidence 401 appearing in West's Federal Civil Judicial Procedure and Rules pamphlet, 2009 Revised Edition. Also see People v.
Pawlaczyk, 189 Ill.2d 177, 193, 244 Ill.Dec. 13, 23, 724 N.E.2d 901, 911 (2000) and Michael H. Graham, Cleary & Graham's Handbook of Illinois Evidence, § 401.1, at 144 (9th ed. 2009).
Additionally, Rule 401 of the new Illinois Rules of Evidence, effective January 1, 2011, adopts the same terminology.
9 The Hearing Board's reasons for its finding that the affidavits "were created with the intention of misleading the court" are unclear. Its only apparent explanation was:
Respondent filed three opinion letters, all of which were based on Dr. Lerner's recommendation. Therefore, we find that Respondent violated Rule 3.3(a)(5) of the Illinois Rules of Professional Conduct. (Emphasis added; Hearing Bd. Report, p. 27.)
By virtue of its "Therefore" conclusion, the Hearing Board was seemingly saying that there couldn't be three opinion letters supported by only one doctor. If that's what the Board meant, it was mistaken legally. The reason three letters and three affidavits were required was because 735 ILCS 5/2-622, subparagraph (b) provides that "a separate certificate and written report shall be filed as to each defendant." Nothing in the statute requires that there be a separate doctor for each defendant as the Hearing Board implied.
10 Geleerd also admitted that the implication arising from the "One has not" statement was incorrect (Tr. 332), but as discussed, that implication was immediately corrected.
11 As noted, Rule 3.3(a)(1) requires that the false statement be material. It is reasonably debatable whether the misidentification of the consultant's specialty was material. It would appear that the material issue or fact of consequence on March 22, 2005 in response to the judge's question as to whether his experts had signed was whether a doctor had signed an opinion letter. His particular specialty was not a fact of consequence as long as Geleerd "reasonably believe[d]" Lerner to be qualified to render an opinion on the merits of the lawsuit, as required by 735 ILCS 5/2-622(a)1. In order to sign a letter of merit, a physician does not have to practice in the same specialty as the defendant doctor. See Long v. Mathew, 336 Ill.App.3d 595, 604-605, 270 Ill.Dec. 776, 783, 783 N.E.2d 1076, 1083 (4th Dist. 2003) and Hagood v. O'Conner, 165 Ill.App.3d 367, 372-373, 116 Ill.Dec. 476, 480, 519 N.E.2d 66, 69 (3rd Dist. 1988).
While the case was ultimately dismissed because of Lerner's lack of qualifications, this was because his medical license had been revoked, not because his former specialty of neurosurgery made him unqualified. And the Hearing Board found (p. 26) that Geleerd did not know of the revocation of Lerner's license, an issue that the Administrator did not pursue on appeal.
Despite our caveat regarding the materiality issue, we resolve it against Respondent because the judge was hearing about the case for the first time and he might have considered the specialty of the physician offering an opinion of merit to be significant.
12 As noted, the Hearing Board (p. 26) did not find a disciplinary violation because of Geleerd's comments on April 18, 2006, that his testifying experts "were on board" on March 22, 2005. (Adm. Ex. 27, p. 8.)
13 While Geleerd had made clear on March 22, 2005 that his testifying experts had not signed opinion letters, the issue of when Geleerd forwarded medical records to his testifying experts had never come up for discussion until April 18, 2006.
14 735 ILCS 5/1-109 provides that civil practice documents may be verified by certification, which has the same effect as signing under oath.
15 See Supreme Court Rule 753(d)(3), which authorizes the Review Board to "make such additional findings as are established by clear and convincing evidence."
16 Interestingly, recent cases in Illinois hold that an expert witness is not automatically barred from testifying at a trial simply because his license has been revoked or for other reasons is no longer valid. See Thompson v. Gordon, 221 Ill.2d 414, 429, 303 Ill.Dec. 806, 815, 851 N.E.2d 1231, 1240 (2006) and Somers v. Quinn, 373 Ill.App.3d 87, 92-93, 310 Ill.Dec. 848, 853-854, 867 N.E.2d 539, 544-545 (2nd Dist. 2007). The rationale for this modern rule is that "the underlying skills that the license certified do not mystically or automatically disappear when the license is no longer legally valid." Somers, supra, 373 Ill.App.3d at 94, 310 Ill.Dec. at 855, 867 N.E.2d at 546.
17 An opposite conclusion could have been drawn only if the Hearing Board had determined, on the basis of clear and convincing evidence, that Respondent was aware that Lerner did not possess a valid medical license, and that Geleerd's purpose in extending the legal battle over Lerner's identity was to prevent defense counsel from gaining this information.
18 The appellate court ignored that part of the record which shows that Geleerd had legal and factual reasons for not wanting to disclose Lerner's identity that were unrelated to Respondent's possible knowledge of Lerner's license revocation. (See, e.g., Adm. Ex. 22, pp. 17-20.)
19 When a motion for leave to file is granted, the court says so in no uncertain terms, as it did when Geleerd's motion for leave to file Dr. Leslie's report was "granted." (Docket entry of July 1, 2005 ─ Resp. Ex. 1, p. 4.)
In re Geleerd, No. 07 CH 31
I cannot join in the report of my colleagues and will briefly explain my primary reasons why.
On June 11, 2004, Geleerd agreed to pursue a medical malpractice claim on behalf of the Estate of Novalene Crull ("Crull"). On December 17, 2004, just as the statute of limitations was about to expire, the Respondent filed the medical malpractice suit against three physicians and their respective practice corporations ("the Crull complaint"). Each physician had a different specialty. They were hematology, orthopedics and neurology. Section 2-622 of the Illinois Code of Civil Procedure requires a plaintiff's attorney in a medical malpractice case to file an affidavit that he has a report of a qualified healthcare professional stating that there is a reasonable and meritorious cause for the malpractice action. 735 ILCS 5/2-622. When he filed the Crull complaint, the Respondent was not prepared to meet this requirement. So instead, he filed an affidavit stating that he was unable to obtain a consultation with a healthcare professional before the expiration of the statue of limitations. This filing allowed him an extra 90 days to obtain the required consultation reports. See 735 ILCS 5/2-622(a)(2).
The new deadline for filing the Section 2-622 affidavit was March 17, 2005. Between December 17, 2004 and March 17, 2005, the Respondent did nothing to obtain a report. Meanwhile, the attorneys for the defendants filed motions to dismiss the case based on the Respondent's failure to comply with Section 2-622. On March 22, 2005, the motions to dismiss were heard by Circuit Court Judge Harold J. Frobish of Livingston County, Illinois.
At this hearing, the Respondent in an effort to prevent dismissal of the case presented a motion for leave to file three Section 2-622 affidavits which he attached to his motion. One related to each named defendant physician. Each affidavit was signed by the
Respondent and each stated that he had consulted with a qualified healthcare professional who stated that there was a reasonable and meritorious cause for the malpractice action against the named defendant. The generic affidavits did not identify the reviewing medical professional and as to each physician defendant stated as follows:
I have consulted and reviewed the facts of this case with a health professional who I believe: (i) is knowledgeable in the relevant issues involved in this cause of action; (ii) practices within the last 6 years in the same area of health care or medicine that is at issue in this cause of action; and (iii) is qualified by experience and demonstrated competence in the subject of the case.
That the reviewing health professional has determined in a written report, after a review of the medical and other relevant material involved in this cause of action[,] that there is a reasonable and meritorious cause for filing of this action.
Each affidavit incorporated by reference the same unsigned letter purporting to be the report of the healthcare professional stating the following:
I am a physician licensed to practice medicine in all of its branches, residency trained and board certified in specialty of internal medicine/nephrology. I have reviewed the medical records and other relevant material of the above patient.
The Hearing Board found that these affidavits were created with the intention of misleading the court and submitting them to Judge Frobish violated Rule 3.3(a)(4).20 (Hearing Bd. Report pp. 26-27) The evidence supports these findings.
In his testimony at his disciplinary hearing, Geleerd acknowledged that the person that he was relying on for his affidavits was Bernard Lerner, who was never board certified in the specialty of internal medicine.21 In fact, as Geleerd knew, Lerner's Illinois license to practice medicine had been revoked and his practice area had not been internal medicine or nephrology. The Respondent also admitted that even Lerner did not have all of the relevant medical records prior to March 22, 2005. The record clearly reflects that these false affidavits were submitted in
an attempt to prevent the Crull case from being dismissed, as it ultimately was when Geleerd's deception was fully exposed. See Crull v. Sriratana, et al., 388 Ill.App.3d 1036, 904 N.E.2d, 1183 (4th Dist. 2009).
At the hearing on March 22, 2005, the Respondent in presenting the affidavits also made statements that were intentionally misleading. He told the Court the board certified physician in internal medicine with the specialty in nephrology had reviewed the records and was the one who drafted the letter attached to the Respondent's affidavits. The Hearing Board found that this statement was "a statement of material fact to a tribunal which Respondent knew or should have known was false in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct." (Hearing Bd. Report p. 25)22 In his testimony at his disciplinary hearing, the Respondent acknowledged that Dr. Leslie was the only physician with an expertise in internal medicine and nephrology with whom he had ever discussed the case. He also acknowledged that as of March 22, Dr. Leslie had never reviewed any medical records nor issued a written report in support of the case's merit. He also acknowledged that medical records which Lerner had said should be obtained, never had been.
Finally, the statement Respondent made when questioned by Judge Frobish at the March 22, 2005 hearing that "I do have a signed letter of consultant" was not a truthful statement, as the majority suggests, because the full statement was "I do have a signed opinion letter of a consultant who is an internal medicine physician." He did not and he knew he did not.
The majority notes that the affidavits were not actually "filed." However, they were clearly submitted to the Court to advance the plaintiff's position. The question is were they false and were they presented with the intent to mislead the Court. The Hearing Board concluded they were and I do not see a basis for concluding otherwise. To this point, the
appellate court in affirming the dismissal in the Crull case reached the conclusion that the Respondent was trying to hide Lerner's identity and lack of qualifications. Crull, 388 Ill.App.3d at 1046, 904 N.E.2d at 1191. Regrettably, it is obvious what he was doing and why.
Because I have reached a different conclusion about the Hearing Board's findings, I cannot join in the recommendation of a censure as the appropriate sanction. In other cases, the Supreme Court has suspended lawyers for misconduct involving false and misleading statements to a court. See In re Thebeau, 111 Ill.2d 251, 489 N.E.2d 877 (1986); In re Wilson, 95 CH 191 (Review Bd., Dec. 13, 1996) approved and confirmed No. M.R. 13344 (March 21, 1997); and In re Passman, 93 CH 573 (Review Bd., Dec. 27, 1995) approved and confirmed, No. M.R. 12249 (March 26, 1996).
Date Entered: 22 November 2010
Gordon B. Nash, Jr.
20 Rule 3.3(a)(4) provided that: "In appearing in a professional capacity before, a tribunal, a lawyer shall not (4) offer evidence that the lawyer knows to be false."
21 The Hearing Board and the majority's reports refer to Lerner as "Dr. Lerner." I will not. As the Illinois appellate court noted, the record in the Crull case clearly shows that Lerner was not licensed to practice medicine in March 2005. Crull v. Sriratana, et al., 388 Ill.App.3d 1036, 1046, 904 N.E.2d, 1183, 1191 (4th Dist. 2009). In an internet age, it takes no effort to determine whether a person, like Lerner whom you know had his license revoked in Illinois, is licensed in another state as he claims. The lawyers representing the defendant physicians of course did and quickly and easily discovered he was not. As the appellate court pointed out, Lerner's lack of qualifications was a matter of public record. See Long v. Mathews, 336 Ill. App. 3d 595, 599 270 Ill. Dec. 776, 783 N.E.2d 1076, 1079 (2003), an earlier case in which the appellate court recognized in a published opinion that Lerner did not have the requisite licenses and qualifications to issue a Section 2-622 report.
22 Rule 3.3(a)(1) of the Code of Professional Responsibility prohibits a lawyer from making "a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false." The Supreme Court has defined the phrase "reasonably should know" as denoting "that a lawyer of reasonable prudence and competence would ascertain the matter in question."