Filed April 19, 2010
In re Peter Reynolds Coladarci
Commission No. 07 CH 79
Synopsis of Review Board Report and Recommendation
Coladarci was charged with misconduct while suspended from the practice of law. Specifically, the complaint charged that Coladarci practiced law in a jurisdiction where doing so violated the regulation of the legal profession in that jurisdiction and that he engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. Coladarci admitted many of the facts alleged in the complaint, but denied misconduct.
The conduct at issue involved Coladarci's work, while suspended, on an appellate brief and related activity.
After a hearing, the Hearing Board found that the Administrator proved that Coladarci engaged in all of the misconduct alleged in the complaint, except the allegation that he engaged in conduct involving fraud, dishonesty, deceit or misrepresentation. The Hearing Board recommended that Coladarci be suspended for three months.
Both parties filed exceptions. The Administrator contends that the Hearing Board erred in finding that he did not prove that Coladarci engaged in conduct involving dishonesty and in its sanction recommendation. Coladarci objects to the Hearing Board's findings of misconduct and argues that, if the findings of misconduct are affirmed, the discipline should not exceed a reprimand.
The Review Board majority affirmed the Hearing Board's findings as to the misconduct charged. Given the nature of the conduct and the Hearing Board's findings as to Coladarci's state of mind, the Review Board majority also affirmed the Hearing Board's sanction recommendation. The dissenting member of the Review Board concluded that the Administrator did not prove that that a reasonable attorney would have understood that he could not do the activities here while on suspension and, consequently, recommended that the charges should be dismissed.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
PETER REYNOLDS COLADARCI,
Commission No. 07 CH 79
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This case was heard on a one-count complaint filed by the Administrator-Appellant/Cross-Appellee alleging that Respondent-Appellee/Cross-Appellant, Peter Reynolds Coladarci, engaged in misconduct while suspended from the practice of law. The Hearing Board found that, as charged in the complaint, Coladarci practiced law in a jurisdiction where doing so violated the regulation of the legal profession in that jurisdiction in violation of Rule 5.5(a) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 5.5(a)) and engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)) and conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770). The Hearing Board found that the Administrator did not prove, by clear and convincing evidence, that Coladarci engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)). The Hearing Board recommended that Coladarci be suspended for three months.
Both parties filed exceptions. The Administrator objects to the Hearing Board's finding that he did not prove that Coladarci engaged in misconduct involving dishonesty. The Administrator also objects to the Hearing Board's sanction recommendation and seeks a one-
year suspension. Coladarci objects to the Hearing Board's findings that he engaged in the unauthorized practice of law, argues that his due process rights were violated by the absence of clear guidelines as to what conduct constitutes the unauthorized practice of law, and contends that, if any discipline is warranted, it should not exceed a reprimand.
Coladarci was licensed to practice law in Illinois in 1982. He has been disciplined once before. In re Coladarci, M.R. 20228 (Sept. 26, 2005).
In the prior matter, Coladarci was disciplined for making a political contribution using funds supplied by another person. At the request of a friend, Thomas Fazioli, Coladarci agreed to donate $5,000 to retire the debt from Justice Thomas Fitzgerald's campaign for election to the Illinois Supreme Court. As Coladarci knew, Fazioli could not make the contribution directly. Fazioli wanted to become a judge, and Justice Fitzgerald was on the committee that nominated persons for associate judgeships. Fazioli gave Coladarci $7,500, to cover the contribution and any taxes Coladarci might incur as a result of receiving the funds. Coladarci and Fazioli attended a fundraiser for Justice Fitzgerald on July 13, 2000. Coladarci left his check for $5,000 there with Fazioli. The next day, Nicholas Motherway, Justice Fitzgerald's campaign treasurer, telephoned Coladarci to thank him for his contribution. Initially, Coladarci acknowledged the thanks; later, however, after getting Fazioli's approval for doing so, Coladarci called Motherway to tell him that the money was from Fazioli and that Fazioli wanted to become a judge. Motherway became indignant, returned the contribution immediately, and, after conferring with Justice Fitzgerald, reported the matter to the ARDC. Neither Justice Fitzgerald nor Motherway was accused of any improper conduct.
The Hearing Board concluded that there was no scheme to try to buy a judgeship, but rather an ill-conceived effort by Fazioli to make himself appear to be a big shot. The
Hearing Board believed that, although he should have known, Coladarci did not actually know that what he was doing was improper. The Hearing Board found that Coladarci committed a criminal act that reflects adversely on his honesty, trustworthiness, or fitness as a lawyer by making a campaign contribution in the name of another, gave assistance to another's conduct when he knew that the conduct would violate the Illinois Rules of Professional Conduct, and engaged in conduct involving misrepresentation and conduct prejudicial to the administration of justice. In re Coladarci, 01 CH 20 (Hearing Board Oct. 31, 2003). The Review Board affirmed. In re Coladarci, 01 CH 20 (Review Board April 8, 2005). The Supreme Court denied the Administrator's petition for leave to file exceptions and suspended Coladarci for three months, as recommended by the Hearing and Review Boards. In re Coladarci, M.R. 20228 (Sept. 26, 2005). The suspension period began on November 7, 2005 and ended on February 6, 2006.
The misconduct that is the subject of the current complaint arose during Coladarci's prior suspension.
Attorney Thomas Durkin represented Coladarci in the prior case. Shortly after the Court entered its order suspending Coladarci, the Administrator directed a letter to Durkin, advising him of the things expected of a suspended attorney. Coladarci and Durkin discussed these things and what Coladarci could/should do during his suspension. Coladarci knew, for example, that he could not have a presence in a law office. Consequently, Coladarci took care to avoid doing so. Essentially, Coladarci remained at home and went downtown only once a week, to pick up mail.
Given the short duration of his suspension, Coladarci was not bound by the requirements that Supreme Court Rule 764 imposes on attorneys suspended for six months or more. However, on Durkin's advice, Coladarci withdrew from his office and removed any
indicia of himself as an attorney. He had his name removed from the office suite. Coladarci moved his files out of his former office and took them to another attorney's office. In addition, Coladarci spoke with all the clients he was representing and notified them of his suspension. Coladarci explained to them that, during his suspension, he could not speak with his clients and another attorney would be handling their matters. Coladarci also notified the courts and opposing counsel in all pending cases and requested withdrawal of his appearances.
With the clients' consent, Coladarci transferred all of his files to other attorneys. Attorney Brian O'Connor took almost all of Coladarci's cases. Coladarci and O'Connor agreed that, if any of the cases settled while Coladarci was suspended, O'Connor would be entitled to a contingent fee, less any quantum meruit recovery to Coladarci, who would be required to file a fee petition. Conversely, after Coladarci's suspension ended, O'Connor would be entitled to either a quantum meruit recovery or an hourly fee for his work. These fees would come out of the contingent fees due to Coladarci and would not add expense to the clients involved.
Prior to his suspension, Coladarci was representing the plaintiffs in Kotek, et al. v. Jiffy Lube International, Inc. After the circuit court entered summary judgment for the defendants, Coladarci filed a notice of appeal in September 2005.
Before his suspension began, Coladarci and O'Connor met and discussed the cases being transferred to O'Connor, including the Kotek case. This case was voluminous and complex, and there were multiple plaintiffs. Coladarci was familiar with the case. Coladarci and O'Connor did not want to delay the case, due to the clients' interests. There was also concern over the time and effort needed for O'Connor to become sufficiently familiar with the case to draft an appellate brief.
Consequently, Coladarci and O'Connor discussed whether Coladarci should
prepare the brief. Coladarci had prepared a brief in opposition to the summary judgment motion in the circuit court. That brief was on Coladarci's computer. Therefore, Coladarci told O'Connor that the work was substantially done or that all the substantial work was done. O'Connor understood that all the work had been done at the summary judgment stage and that the appeal would involve cutting and pasting from prior documentation. From O'Connor's viewpoint, the appeal would involve the same argument that had been presented to the circuit court, with little new work. Because he understood that Coladarci had already done that work, O'Connor agreed that Coladarci could prepare a draft of the brief, which O'Connor would review. Coladarci did not talk with Durkin about whether he could prepare the draft brief. However, neither Coladarci nor O'Connor considered it improper.
In January 2006, working from his home, Coladarci prepared a draft of the brief for the Kotek case. In doing so, Coladarci used portions of the trial court pleadings in doing so. He prepared three or four drafts of some parts of the brief; other parts did not need to be redrafted. Coladarci checked the record citations. Coladarci testified that he spent 15-20 hours on the brief before giving it to O'Connor to review. O'Connor reviewed the draft brief in its entirety. Thereafter, he and Coladarci discussed the brief and the issues raised in it. They discussed one legal issue in particular, discussing how to preserve an issue for appeal. They decided to do so via a footnote, as O'Connor suggested. Coladarci added the footnote and finalized the brief later, from his home. O'Connor authorized that the brief be filed.
O'Connor estimated that he spent four to five hours on the Kotek case.
The appellate brief and the response to the summary judgment motion differ from each other. For example, the appellate brief contains additional sections, e.g., a statement of facts. The two documents cite to some different authorities. The appellate brief also addresses
the propriety of the ruling on a motion to dismiss, which was not addressed in the response to the motion for summary judgment.
When he took the brief to be copied, Coladarci realized that O'Connor had not signed the brief. O'Connor testified that this was an oversight. Thinking that he was dealing with a deadline, Coladarci printed the name of O'Connor's firm, Baal & O'Connor, on the signature line.
Coladarci and O'Connor then learned that the deadline had been misdiaried, such that the brief was late. Therefore, Coladarci prepared a motion for leave to file the brief instanter. O'Connor signed the affidavit that accompanied the motion, and Coladarci took the motion to file with the brief.
No extensions of time were requested. However, the appellate court would have likely granted an extension of time to file the brief, until after Coladarci's suspension was over.
On January 19, 2006, after the brief was filed, Colardarci telephoned attorney Scott Carlson, who represented two of the defendants in the Kotek case. They discussed delivery of the record to Carlson, as well as a legal issue in the case. During their telephone conversation, Coladarci told Carlson that he was "on vacation," later clarifying that he was on suspension.
Carlson reported the matter to the ARDC; he did not do so until April 2006, partly due to his uncertainty about the situation. Carlson admitted that he was uncertain whether Coladarci's conduct was actually improper. He was also unsure whether he had an obligation to report Coladarci's conduct under In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790, 127 Ill. Dec. 708 (1988). Carlson acknowledged that some firms have a paralegal or law clerk do the research and writing necessary to prepare a brief.
Each party raises an issue as to the Hearing Board's findings of misconduct. The
Administrator contends that the Hearing Board erred in failing to find that Coladarci engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation. Coladarci argues that the Hearing Board erred in finding that he engaged in the unauthorized practice of law.
The Administrator must prove the misconduct charged, by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999). While less stringent than proof beyond a reasonable doubt, the clear and convincing evidence standard requires more than a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273, 207 Ill. Dec. 311 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762, 160 Ill. Dec. 437 (1990). Clear and convincing evidence requires a high level of certainty. In re Stephenson, 67 Ill. 2d 544, 556, 367 N.E.2d 1273, 10 Ill. Dec. 507 (1977). It means a degree of proof that, considering all the evidence, produces a firm and abiding belief that it is highly probable that the proposition at issue is true. Cleary & Graham, Handbook of Illinois Evidence, sec. 301.6 (9th ed. 2009).
Factual findings by the Hearing Board are not reversed unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). This is a very deferential standard of review. See Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961, 302 Ill. Dec. 397. A factual finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill. 2d at 542, 848 N.E.2d 961, 302 Ill. Dec. 397 Under this standard of review, the Review Board should not overturn the factual findings of the Hearing Board merely because it disagrees with the Hearing Board's factual conclusions or because it might have reached a different conclusion if it had been the fact finder. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397.
The reviewing tribunal, however, is responsible for correcting errors in the
application of the law to the facts, Winthrop, 219 Ill. 2d at 543, 848 N.E.2d 961, 302 Ill. Dec. 397, and for determining whether a particular set of facts constitutes the misconduct charged. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994); In re Owens, 144 Ill. 2d 372, 377, 581 N.E.2d 633, 163 Ill. Dec. 479 (1991). Such issues are issues of law. In re Ushijima, 119 Ill. 2d 51, 57, 518 N.E.2d 79, 115 Ill. Dec. 548 (1987). In contrast to its factual findings, the Hearing Board's legal conclusions are reviewed de novo. Discipio, 163 Ill. 2d at 527, 645 N.E.2d 906, 206 Ill. Dec. 654; see Owens, 144 Ill. 2d at 377, 581 N.E.2d 633, 163 Ill. Dec. 479.
The Administrator contends that the Review Board should find that Coladarci violated Rule 8.4(a)(4) based on his statement to O'Connor that work for the appellate brief was substantially complete. The Hearing Board did not specifically address this statement.
The evidence clearly shows that Coladarci told O'Connor that the work on the Kotek brief was substantially done when the two met and discussed the brief prior to Coladarci's suspension. The evidence also shows that Coladarci still spent significant time, during his suspension, writing the brief.
These facts alone, however, neither establish that the Hearing Board erred, as a matter of law, in finding that the Administrator did not prove a violation of Rule 8.4(a)(4) nor constitute clear and convincing evidence so as to warrant the Review Board finding a violation of Rule 8.4(a)(4). See generally Supreme Court Rule 753(d)(3) (Review Board may make additional findings, if established by clear and convincing evidence).
Under the Supreme Court's recent decision in In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581, 331 Ill. Dec. 172 (2009), to constitute a violation of Rule 8.4(a)(4), a respondent's misconduct must be purposeful and accompanied by an intent to deceive. See also In re Murray,
07 CH 63 (Review Board Dec. 31, 2009); In re Klytta and Klytta, 06 CH 60 & 61 (cons.) (Review Board Dec. 30, 2009).
The facts here show that Coladarci's expectation of the amount of work remaining to be done to prepare the appellate brief and the actual time he spent on the brief differed significantly. This does not, however, demonstrate that Coladarci made his statement with an intent to deceive or that, when he made the statement, he knew it was false. Many people, lawyers included, underestimate the work involved in a future project. The failure to estimate correctly does not establish intentional deception, particularly as a matter of law.
Further, issues as to state of mind are factual issues, as to which the Hearing Board's findings are due significant deference. See In re Ingersoll, 186 Ill. 2d 163, 168-69, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999). While the Hearing Board did not specifically address whether Coladarci made a knowingly false statement when he told O'Connor that the work on the brief was substantially complete, the Hearing Board did make specific findings of fact concerning Coladarci's state of mind overall. As the Hearing Board heard Coladarci testify and observed his demeanor, its overall impression of Coladarci's state of mind is significant in assessing issues that involve an element of intent.
The Hearing Board clearly believed that Coladarci did not have any intent to deceive, but instead was genuinely trying to comply with the rules. Particularly in light of this premise, the facts presented simply do not constitute clear and convincing evidence of intent to deceive.
Coladarci argues that the Hearing Board erred in finding that his conduct constituted the unauthorized practice of law. Coladarci contends that his due process rights were violated by a lack of notice that his conduct was proscribed and that his conduct did not amount
to any more than would be done by a paralegal or law clerk.
Due process protections clearly apply in disciplinary cases. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); In re Smith, 168 Ill. 2d 269, 289, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995). The law requires that a person be placed on notice of prohibited conduct before sanctions can be imposed for the conduct. See In re Corboy, 124 Ill. 2d 29, 528 N.E.2d 694, 124 Ill. Dec. 6 (1988). Due process is denied where terms are so vague that they fail to provide clear notice as to what conduct is proscribed. See generally In re Jafree, 93 Ill. 2d 250, 257, 444 N.E.2d 143, 67 Ill. Dec. 104 (1983).
However, in assessing a vagueness challenge in attorney disciplinary proceedings, it is legitimate to consider the fact that the group being regulated is not the lay public, but trained lawyers; thus, the issue is whether or not the conduct was such that a reasonable attorney would understand it to be prohibited. See In re Rinella, 93 CH 378 (Review Board April 10, 1996), approved in part, rejected in part on other grounds, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997). Conduct does not need to be explicitly prohibited under the Rules of Professional Conduct in order to be sanctionable. In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997).
There is some ambiguity surrounding the duties of an attorney who is suspended for less than six months. See Supreme Court Rule 764; In re Howard, 188 Ill. 2d 423, 439-40, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999); In re Moll, 01 CH 46 (Review Board March 22, 2006), petition for leave to file exceptions allowed, discipline modified, M.R. 20918 (Sept. 20, 2006). However, it is clear that an attorney suspended for any length of time should not practice law. Howard, 188 Ill. 2d at 440, 721 N.E.2d 1126, 242 Ill. Dec. 595. The practice of law encompasses any activity that involves giving advice or rendering any sort of service that
requires the use of any degree of legal knowledge or skill. Howard, 188 Ill. 2d at 438, 721 N.E.2d 1126, 242 Ill. Dec. 595; In re Bodkin, 21 Ill. 2d 458, 461, 173 N.E.2d 440 (1961). In determining whether certain activity constitutes the practice of law, all the surrounding circumstances must be considered. Discipio, 163 Ill. 2d at 523-25, 645 N.E. 2d 906, 206 Ill. Dec. 654. The character of the acts performed is the decisive factor, People ex rel. Chicago Bar Association v. Goodman, 366 Ill. 346, 8 N.E.2d 941, 946, cert. denied, 302 U.S. 728, 58 S.Ct. 49, 82 L.Ed. 562 (1937), including consideration of whether legal skill or knowledge is required to perform the tasks at issue or whether the task involves giving legal advice or preparing legal documents. In re Scroggins, 94 SH 638 (Review Board May 13, 1996), approved and confirmed, M.R. 10561 (Sept. 24, 1996).
Some jurisdictions permit suspended attorneys to work in a law office as a clerk or investigator and to do tasks such as research or preparation work under the supervision of a licensed attorney. E.g., In re Ray, 452 N.W.2d 689 (Minn. 1990); Florida Bar v. Thompson, 310 So.2d 300 (1975). However, under well-established Illinois precedent, it is clear that a disbarred or suspended attorney may not work in a law office, even as a paralegal or law clerk. Supreme Court Rule 764(b); In re Kuta, 86 Ill. 2d 154, 427 N.E.2d 136, 56 Ill. Dec. 56 (1981); see also In re Discipio, 163 Ill. 2d 515, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994). This is because the lines of demarcation between the work that a paralegal or law clerk can do and those that can only be performed by a licensed attorney are not always clear and distinct. Discipio, 163 Ill. 2d at 526, 645 N.E. 2d 906, 206 Ill. Dec. 654. The opportunity for a disbarred or suspended attorney who is working as a paralegal or a law clerk to cross that line is too great and too inviting. Discipio, 163 Ill. 2d at 526, 645 N.E. 2d 906, 206 Ill. Dec. 654. Also, the public is not aware of the differences between the work of a paralegal and that of an attorney; there is a great risk that the
public's regard for the effectiveness of the disciplinary system and its protection of the public would be diminished if a suspended attorney was seen performing what the public may view as legal functions. Discipio, 163 Ill. 2d at 526, 645 N.E. 2d 906, 206 Ill. Dec. 654. For these reasons, the fact that a function can be, or frequently is, performed by a paralegal or law clerk does not mean, in Illinois, that it can be legitimately performed by a disciplined attorney, during the period of discipline. See Discipio, 163 Ill. 2d at 526, 645 N.E. 2d 906, 206 Ill. Dec. 654. Despite the ambiguities in the procedural steps required of an attorney, such as Coladarci, who is suspended for less than six months, these principles were clearly established at the time of Coladarci's suspension.
This case also involves additional conduct beyond just preparing a draft brief, to be reviewed, and which was reviewed, by a licensed attorney prior to filing. Coladarci prepared a motion for leave to file the brief instanter and filed the motion with the brief. He also contacted opposing counsel and discussed a legal issue with him. There can be no serious question that Coladarci's preparation of the motion for leave to file the brief and his discussion of legal issues with opposing counsel constituted the practice of law.
Therefore, the Hearing Board's findings are affirmed.
The remaining issues concern the sanction. The Hearing Board's recommendation as to discipline is advisory. Ingersoll, 186 Ill. 2d at 178, 710 N.E.2d 390, 237 Ill. Dec. 760. In fashioning the proper sanction in any given case, the Review Board must consider each case, based on its own particular facts and circumstances, while remaining aware that the system seeks to impose sanctions consistent with those imposed in other similar cases. Ingersoll, 186 Ill. 2d at 177-78, 710 N.E.2d 390, 237 Ill. Dec. 760; In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). The purpose of discipline is not to punish the
individual respondent, but to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999); Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55. The deterrent value of a sanction may be considered. Discipio, 163 Ill. 2d at 528, 645 N.E.2d 906, 206 Ill. Dec. 654.
Aggravating and mitigating factors are to be considered. Witt, 145 Ill. 2d at 398, 583 N.E.2d 526, 164 Ill. Dec. 610.
The fact that a respondent has been disciplined previously is generally a serious aggravating factor. E.g., Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961, 302 Ill. Dec. 397; In re Storment, 203 Ill. 2d 378, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002). However, an attorney who does not fully comply with his or her obligations while suspended may not be a recidivist in the typical sense. In re Moll, 01 CH 46 (Review Board March 22, 2006), petition for leave to file exceptions allowed, discipline modified, No. M.R. 20918 (Sept. 20, 2006). In such cases also, the respondent's efforts at compliance and at protecting clients during a suspension are mitigating, as is the respondent's reliance on advice of counsel, to the extent that is shown. See In re Gabe, 04 CH 8 (Review Board May 24, 2007), petition for leave to file exceptions denied, M.R. 21734 (Sept. 18, 2007); Moll, 01 CH 46.
The intent with which Coladarci acted is also relevant, as is the extent, or lack thereof, of harm to his clients. See In re Gabe, 04 CH 8; cf. In re Scroggins, 94 SH 638 (Review Board May 13, 1996), approved and confirmed, M.R. 10561 (Sept. 24, 1996) (reinstatement allowed despite technical non-compliance with Rule 764(b); inadvertent rather than intentional violations); see generally In re McNamara, 94 CH 687 (Review Board June 13, 1997), approved and confirmed, M.R. 13994 (Sept. 29, 1997).
Practicing law in the face of a suspension is serious misconduct, as it displays a serious disregard for the disciplinary system and for the Court, as well as disregard for the welfare of clients. Howard, 188 Ill. 2d at 441, 721 N.E.2d 1126, 242 Ill. Dec. 595; In re Relphorde, 02 CH 30 (Review Board June 14, 2005), approved and confirmed, M.R. 20358 (Sept. 27, 2005). Therefore, significant sanctions are typically imposed on attorneys who practice law while suspended. E.g., In re Rothman, 02 CH 87 (Review Board Feb. 10, 2005), petition for leave to file exceptions allowed, discipline modified, M.R. 20128 (May 20, 2005); In re Neuendorf, 02 CH 31 (Review Board March 19, 2004), petition for leave to file exceptions denied, M.R. 19441 (Sept. 24, 2004).
However, this case is different for a number of reasons.
We are sympathetic to the dilemma facing an attorney, such as Coladarci, who is suspended for a relatively short period of time. This is especially problematic for a sole practitioner. Absent help from a friend, as O'Connor provided here, a sole practitioner does not have another attorney readily available to cover his or her practice during the period of suspension. There are practical realities that must be addressed, including how to deal with pending cases and protect client interests. Supreme Court Rule 764 clearly specifies what is required of attorneys who are disbarred, disbarred on consent, or suspended for six months or more. However, Rule 764, on its face, does not apply to attorneys suspended for less than six months. Such an attorney is not, and should not be, required to shut down his or her practice; the shorter suspension recognizes that the attorney is not a person who should be put out of business. Yet, the attorney still must refrain from engaging in activity that would constitute the practice of law. Navigating this maze poses significant practical obstacles, even where, as here, the respondent has the advice of counsel.
We also recognize that some attorneys may not be familiar with the case precedent cited in this majority report that establishes conduct such as Coladarci's as improper. Even opposing counsel, who ultimately determined that he should report the conduct, struggled with the question of whether or not Coladarci had crossed the line. Attorneys suspended for any length of time must comply with their obligation to refrain from practicing law, as established by the cases. Present law is not entirely clear as to the practical steps required of attorneys suspended for less than six months. Therefore, we respectfully suggest that the Court may wish to consider giving further guidance to the bar, either by rule changes or an opinion, with regard to those practical steps.
Coladarci clearly tried to comply with his obligations and to protect his clients during the period of his suspension. This intent is critical and distinguishes this case from others in which attorneys were severely sanctioned for effectively continuing to practice law, despite a suspension, in a clear and intentional disregard of the suspension order. E.g., In re Rothman, M.R. 20128; Neuendorf, 02 CH 31; In re Relphorde, 02 CH 30 (Review Board June 14, 2005), approved and confirmed, M.R. 20358 (Sept. 27, 2005). Coladarci's efforts, and those of his attorney, are significant factors in our sanction recommendation.
The Administrator seeks a one-year suspension, such as that imposed in In re Nash, 03 SH 128 (Hearing Board Aug. 8, 2005), approved and confirmed, M.R. 20418 (Nov. 22, 2005). There are similarities between Nash and this case. In both cases, there was only one matter as to which the respondents were charged with practicing law while suspended and each respondent believed that his conduct was not improper. However, we do not view Nash as requiring that Coladarci be suspended for one year.
Unlike Coladarci, who has only one prior disciplinary matter, Nash had been disciplined twice before. Further, all of the surrounding circumstances must be considered. According to the findings by the hearing panels in each case, none of Coladarci's professional misconduct, in this case and the prior case, was accompanied by an intent to deceive or any motivation for personal gain. In this case, we are particularly impressed with the concern shown by Coladarci and Durkin in attempting, albeit unsuccessfully, to fully comply with Coladarci's obligations as a suspended attorney. Coladarci went above and beyond what Supreme Court Rule 764 actually requires of an attorney suspended for less than six months. He clearly endeavored to protect his clients, remove any indicia of himself as an attorney, and to notify all involved of his suspension. These are significant mitigating factors.
We also recognize that an attorney not familiar with disciplinary law could have assumed that preparing a brief, to be reviewed by a licensed attorney, would not be misconduct. As noted above, even Coladarci's opposing counsel was unsure as to whether or not his conduct was improper. These circumstances do not justify the conduct or avoid discipline. However, they are factors to consider in determining the quantum of discipline. See In re Moll, 01 CH 46 (Review Board March 22, 2006), petition for leave to file exceptions allowed, discipline modified, M.R. 20918 (Sept. 20, 2006) (sixty-day suspension for misconduct that included failure to fully comply with Rule 764).
Given all the circumstances, we agree with the Hearing Board's recommendation of a three-month suspension.
Stuart R. Lefstein
Dated: 19 April 2010
1 The Court extended the starting date of the suspension at Coladarci's request.
2 If the issue of respondent's conduct had been a matter of first impression, we would be inclined to agree with the dissent. However, the principles governing the result in this case appear to be well-established by existing case precedent, which in our judgment, renders the due process argument unpersuasive. If exceptions for suspensions of less than six months are to be applied to cases of the subject type, they should be carved out by the Supreme Court, not the Review Board.
3 While Coladarci did not present character witnesses or evidence of mitigating factors such as pro bono work in this case, such evidence was presented in his prior disciplinary case. In re Coladarci, 01 CH 20 (Hearing Board Oct. 31, 2003).
4 The Administrator argues that there was a risk of harm to Coladarci's clients, because a court document prepared by someone who was not a licensed attorney could be considered a nullity. A risk of harm is itself aggravating. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194, 280 Ill. Dec. 673 (2003),. However, the nullity rule is not always applied. See Applebaum v. Rush University Medical Center, 231 Ill. 2d 429, 899 N.E.2d 262, 270, 326 Ill. Dec. 45 (2008). Further the risk in this case was minimized by the fact that O'Connor reviewed and approved the brief, even though it was Coladarci who placed the name of O'Connor's firm on the brief's signature line.
In re Coladarci, No. 07 CH 79
The majority correctly frames the issue as "whether or not the [Respondent's] conduct was such that a reasonable attorney would understand it to be prohibited." See In re Rinella, 93 CH 378 (Review Board April 10, 1996), approved in part, rejected in part on other grounds, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997). But the majority then concludes, incorrectly, in my view, that a reasonable attorney would understand that he could not perform the activities at issue here while on suspension: assisting in drafting an appellate brief under the supervision of a licensed attorney. see e.g. In re Ray, 452 N.W.2d 689 (Minn. 1990); Florida Bar v. Thompson, 310 So.2d 300 (1975),
Rule 5.5(a), the principal Rule under which Respondent has been charged, adds nothing to a reasonable attorney's understanding of what is prohibited, or isn't - simply forbidding the "practice of law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction." Illinois Rules of Professional Conduct Rule 5.5(a) (134 Ill. 2d R. 5.5(a)). The reported case law is little more revealing, holding that the practice of law "defies mechanistic formulation." In re Howard, 188 Ill. 2d 423, 438, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999).
It is undisputed that a person unlicensed to practice law could assist in drafting an appellate brief under the supervision of a licensed attorney. See Supreme Court Rule 711(c)(3) (210 Ill. 2d R. 711(c)(3)). It was certainly not unreasonable, per se, for Respondent to have concluded that he could perform work while suspended that someone entirely unlicensed would be permitted to perform.
The burden should be on the Administrator to prove that that behavior was unreasonable. He has not carried the burden here and the charges should be dismissed.
Daniel P. Duffy
1 Alaska, for one, offers attorneys additional guidance in the area:
Unauthorized Practice of Law.
(1) For purposes of the
practice of law prohibition for disbarred and suspended attorneys in
subparagraph (a) (6) of this rule, except for attorneys suspended solely for
noon-payment of bar fees, "practice of law" is defined as: (A) holding oneself
out as an attorney or lawyer authorized to practice law; (B) rendering legal
consultation or advice to a client; (C) appearing on behalf of a client in any
hearing or proceeding or before any judicial officer, arbitrator, mediator,
court, public agency, referee, magistrate, commissioner, hearing officer, or
governmental body which is operating in its adjudicative capacity, including the
submission of pleadings; (D) appearing as a representative of the client at a
deposition or other discovery matter; (E) negotiating or transacting any matter
for or on behalf of a client with third parties; or (F) receiving, disbursing,
or otherwise handling a client's funds. (2) For purposes of the practice of law
prohibition for attorneys suspended solely for the non-payment of fees and for
inactive attorneys, "practice of law" is defined as it is in subparagraph (b)(1)
of this rule, except that these persons may represent another to the extent that
a layperson would be allowed to do so.
Alaska State Bar Rule 15(b).