Filed June 23, 2010

In re Christian Lawrence Kline
Respondent-Appellant

Commission No. 07 CH 107

Synopsis of Review Board Report and Recommendation
(June 2010)

Kline was charged with misconduct based on allegations that he submitted fabricated bills while working as a temporary contract attorney.

After a hearing, the Hearing Board found that the Administrator proved that Kline engaged in conduct involving fraud, dishonesty, deceit or misrepresentation, but did not prove the remaining misconduct charged. The Hearing Board recommended that Kline be suspended for three months and until he attended the course offered by the Illinois Professional Responsibility Institute.

The case was before the Review Board on Kline's exceptions. Kline objected to the Hearing Board's decision to admit a certain document as an exhibit for the Administrator. He also objected to the Hearing Board's finding of misconduct and sanction recommendation. While the Administrator sought to have the Review Board affirm other aspects of the Hearing Board's report, the Administrator objected to the Hearing Board's finding that he did not prove that Kline violated Supreme Court Rule 770.

The issues involved whether Kline was, or was not, working at the times for which he submitted bills to the temporary agency through which his services were provided. The Administrator's case was based primarily on the challenged exhibit, which purported to show the time elapsed between entries on a computerized document review system used for the work assigned to Kline.

The Review Board concluded that the exhibit was not properly introduced into evidence. Because the exhibit was admitted erroneously and there was insufficient other evidence to prove the charges by clear and convincing evidence, the Review Board reversed the findings of misconduct and recommended that the charges be dismissed.

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

In the Matter of:

CHRISTIAN LAWRENCE KLINE,

Respondent-Appellant,

No. 627457.

Commission No. 07 CH 107

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

This case is before the Review Board on exceptions filed by Respondent-Appellant, Christian Lawrence Kline. Kline objects to the Hearing Board's finding that he engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (210 Ill. 2d R. 8.4(a)(4)) and its recommendation that Kline be suspended for three months and until he attends the Illinois Professional Responsibility Institute. The Administrator-Appellee seeks to have the Review Board uphold the Hearing Board's finding that Kline violated Rule 8.4(a)(4) and its sanction recommendation, but argues that the Review Board should reverse the Hearing Board's finding that the Administrator did not prove that Kline engaged in conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770).

The charges were based on allegations that Kline submitted fabricated bills while working, as a temporary contract attorney, for Mayer, Brown, Rowe and Maw. Kline was placed at Mayer, Brown by Ajilon Legal, a company that provides attorneys for temporary work. Ajilon

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paid its contract attorneys based on an hourly rate and billed its client for the work performed. Ajilon billed Mayer, Brown $70 per hour for Kline's time and paid Kline $35 per hour.

The Mayer, Brown project involved reviewing and analyzing numerous documents for an insurance coverage case, in which Mayer, Brown was due to respond to a request for production of documents in February 2006. The documents varied in length, type, and complexity.

Ajilon assigned several attorneys to the project. The project began before Kline was assigned to it and continued after his work ended.

Kline's assignment began on December 12, 2005. His time that day consisted primarily of an orientation and training session.

The issues involve Kline's hours on the project for the period from December 13 through 31, 2005. Kline reported having worked 135 hours during that period, spending ten hours a day, Monday through Friday, except on December 26, 2005, for which Kline reported spending five hours.

The Administrator charged that Kline actually spent only 51 hours and 45 minutes during this period. This conclusion was based on a computerized report that purportedly reflected the time between "edits" on documents Kline was assigned to review.

The documents to be reviewed had been scanned into a computerized, on-line document review system, Case Data. Contract attorneys were given batches of documents to review using Case Data. Two Mayer, Brown attorneys, Tara Thompson and Rosaria Owen, oversaw the contract attorneys' work.

Conflicting evidence was presented as to the extent to which Mayer, Brown expected contract attorneys to review individual documents. Contract attorneys were not given guidelines as to the number of documents they were to review.

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Contract attorneys were expected to code the documents by type, so that Mayer, Brown would have information such as whether specific documents were privileged and whether specific documents were responsive to the production request. After reviewing a document, the attorneys were to make any necessary "edits." Conflicting evidence was presented as to exactly what an "edit" meant and whether an edit would occur whenever an attorney reviewed and coded a document or only if the attorney made more a substantive change, e.g., redacting information from a document.

Conflicting evidence was also presented as to whether or not the Case Data system would prompt the user to save any changes he or she made and whether a failure to affirmatively save changes might make it seem that work had not been done. Developments in the underlying litigation sometimes required another review of documents that had been reviewed previously. That re-review did not always generate additional changes. This process could make it appear that no work had been done during a specific time.

Generally, Thompson assigned the work to the contract attorneys. She did not check completed batches of documents before assigning a new batch to the contract attorney. Mayer, Brown attorneys, however, did perform quality control checks on contract attorneys' work.

Thompson conducted a quality control check, using the Case Data system, after Kline's assignment to the project ended. From this review, it appeared to Thompson that a large number of documents had not been reviewed. Thompson investigated, using Case Data, and determined that the documents involved had been assigned to Kline.

Case Data is essentially a database with data fields for each document. Fields indicated, inter alia, the time that a given document had been accessed and edited and by whom. After noticing a problem with the batches of documents assigned to Kline, Thompson ran a

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report of Kline's usage in the system, to see what the system showed had been done with the documents assigned to Kline. After exporting the data to another program, Excel, Thompson generated a report. This report, which was admitted into evidence as Administrator's Exhibit 3, formed the basis for the Administrator's case.

The report provides certain, specific information. Each document is identified with an identification number, but the documents are not otherwise described, e.g., there is no indication of the length or complexity of any document. The report shows a date and time and the number of minutes elapsed between edits. The report reflects some large time gaps between edits, a small number of edits for some days, no edits for other days for which Kline billed time, and, in some instances, very short times between edits. Administrator's Exhibit 3 did not show when Kline arrived at, or left, work on any given day. It only showed edits and the time elapsed between the edits shown.

Based on this document, and the edit times it showed, Thompson believed, and the Administrator charged, that, between December 13, 2005 and December 31, 2005, Kline spent only 51 hours and 45 minutes working, rather than the 135 hours that he claimed.

After running the report, Thompson again reviewed the documents assigned to Kline. She determined that some documents had not been coded, many items did not show any edits, and some documents had been coded, but erroneously. Therefore, Thompson became concerned about the accuracy of all the documents assigned to Kline and had all of those documents re-reviewed. As a result, Kline's work product was destroyed.

Given the discrepancy in Kline's reported time, Mayer, Brown withdrew the amounts it had billed to its client for Kline's work. Mayer, Brown also contacted Ajilon. Ajilon responded by promptly giving Mayer, Brown a full refund for its payments for Kline's time. In addition, although Kline reported having worked during the week ending January 6, 2006, for

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that week Ajilon did not bill Mayer, Brown for any of his reported time and did not pay Kline. Ajilon also reversed the direct deposit payment that had already been made for the last week for which Kline had been paid.

No one told Kline of any problems with his work while he was working. Although Thompson considered Kline's work pace to be on the slower side, she did not object to Kline's performance while he was assigned to the Mayer, Brown project.

In order to be paid, contract attorneys submitted time records to Ajilon each week. A Mayer, Brown attorney had to approve payment. Owen typically was the Mayer, Brown attorney who approved contract attorney time. Owen approved the time Kline submitted, as she assumed he had worked the hours he reported. Until Thompson's investigation suggested otherwise, both Thompson and Owen believed that Kline had worked the hours he claimed. Neither had actual personal knowledge of when Kline was at work or what he was doing while he was there.

Contract attorneys provided Ajilon and Mayer, Brown with information that showed the time they worked. Some of those records included the time the attorney arrived at work and the time he or she left work for the day. Other records would have included information as to what the attorney did and the time spent. None of this information was in evidence. Additionally, contract attorneys had to sign in and out of the building in which Mayer, Brown's offices were located. No such records were in evidence.

Two Ajilon supervisory employees testified at the hearing. Neither of them had personal knowledge of how many hours Kline actually worked at Mayer, Brown, when he arrived, when he left, or how he spent his time.

Two other Ajilon contract attorneys assigned to the Mayer, Brown project testified. One of them, Elizabeth Brasser, testified that there was one male attorney who came in

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later in the day than the other contract attorneys. She did not know whether that attorney was Kline. Brasser did not remember Kline specifically and did not know what hours, or how many hours, he worked. The other Ajilon contract attorney, Robert Naumann, testified that Kline typically arrived late in the morning but was always there when Naumann left at the end of the day. Naumann believed that, when Kline was present, he was doing work because Kline actively participated in discussions among the contract attorneys about the work being done. Naumann testified that, while he did not know how many total hours Kline worked, he worked at least five or six hours a day. With the possible exception of December 26, 2005, Naumann was not aware of any days that Kline was not at work at all.1

Kline was admitted to practice law in 1996. He has no prior discipline. Kline worked on other projects for Ajilon without any problems. Kline testified that he never knowingly turned in incomplete work and that he worked for all of the hours that he reported on the Mayer, Brown project.

Kline was familiar with document review software, although not with Case Data. Kline testified that differences in programs might have caused him some confusion in working with the Case Data system.

Kline considered the Mayer, Brown job to be a complicated one, given the nature of the materials to review, changes in the instructions to contract attorneys, and the nature of the underlying case. Kline testified that he went through the documents very carefully. He assumed that batches of documents were being reviewed for quality control as he turned them in.

Kline objects to the Hearing Board's decision to admit Administrator's Exhibit 3, the computerized report generated by Thompson that formed the basis for the charges. He contends that the document should not have been admitted into evidence. We agree.

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While not mechanically followed, rules of evidence do apply in disciplinary proceedings, and the reviewing tribunal can reverse erroneous evidentiary rulings by the Hearing Board. In re Williams, 111 Ill. 2d 105, 114-15, 488 N.E.2d 1017, 94 Ill. Dec. 770 (1986); In re Goodman, 93 CH 492 (Review Board May 18, 1995), approved and confirmed, M.R. 11497 (Sept. 29, 1995). Ordinarily, Hearing Board rulings on evidentiary issues are reviewed deferentially, for abuse of discretion. In re Joyce, 133 Ill. 16, 29, 549 N.E.2d 232, 139 Ill. Dec. 720 (1989). However, whether or not certain evidence is hearsay is an issue of law, which is reviewed de novo. In re A.B., 308 Ill App.3d 227, 234, 719 N.E.2d 348, 24 Ill. Dec. 487 (2d Dist. 1999).

Administrator's Exhibit 3 is an out of court statement offered for the truth of the matter asserted; as such, it is hearsay. See Cleary & Graham, Handbook of Illinois Evidence, sec.801.1 (9th ed. 2009). Generally, hearsay should not be admitted in disciplinary proceedings. Williams, 111 Ill. 2d at 114-15, 488 N.E.2d 1017, 94 Ill. Dec. 770.

The Hearing Board admitted Administrator's Exhibit 3 under the business records exception to the hearsay rule. Under Supreme Court Rule 236 (145 Ill. 2d R. 236), on which the Hearing Board relied, any writing made as a record of any act, transaction, occurrence, or event, is admissible as evidence of that act, transaction, occurrence, or event, provided that the entry is made in the regular course of business and if it was in the regular course of business to make such a record at the time of, or within a reasonable time after, the act, transaction, occurrence, or event.

The business records exception is based on the presumed reliability of business records. Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 830 N.E.2d 814, 827, 294 Ill. Dec. 402 (1st Dist. 2005). Business records are considered reliable, and therefore admissible, because of the regular, prompt, and systematic manner in which they are kept and the fact that

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they are relied on in the operation of the business. A.B., 308 Ill App.3d at 235, 719 N.E.2d 348, 24 Ill. Dec. 487. Whether something is, or is not, a business record depends on the purpose of the document when it was prepared, rather than on any subsequent use of the document. See A.B., 308 Ill App.3d at 236, 719 N.E.2d 348, 24 Ill. Dec. 487.

Because the accuracy of business records is presumed, the only foundation required to admit the record as evidence is a showing that the record was made in the regular course of business and made at or near the time of the event recorded. Kimble, 358 Ill. App. 3d 400, 830 N.E.2d at 827, 294 Ill. Dec. 402. A document generated during the course of an investigation cannot, however, meet that foundational requirement because it is not considered to have been made "in the regular course of business." People v. Casey, 225 Ill. App.3d 82, 587 N.E.2d 511, 515, 167 Ill. Dec. 242 (1st Dist. 1992); Cleary & Graham at sec.803.10 see Kimble, 358 Ill. App.3d 400, 830 N.E.2d at 826, 294 Ill. Dec. 402.

Here, after a routine quality control check suggested that a large number of documents may not have been reviewed, Thompson entered the Case Data system to investigate. After entering the Case Data system, Thompson determined that the documents involved had been assigned to Kline. Thompson then ran a report of Kline's usage in the system, in order to investigate what -- according to the Case Data program -- had happened with the documents assigned to Kline. Thompson then selected certain data fields from the Case Data system and exported the information from the fields she chose to another program, Excel, to generate a report, which became Administrator's Exhibit 3.

While the quality control check, which was routine, was an activity performed in the ordinary course of business, Thompson's subsequent investigation was not. Thus, Administrator's Exhibit 3 was a document prepared in the course of, and as the result of, an investigation, not a document prepared in the ordinary course of business. Such documents are

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not admissible under the business records exception to the hearsay rule. Kimble, 358 Ill. App. 3d 400, 830 N.E.2d at 828, 294 Ill. Dec. 402; see Casey, 225 Ill. App. 3d 82, 587 N.E.2d at 514, 167 Ill. Dec. 242 (1st Dist. 1992); Cleary & Graham at sec.803.10.

In addition, the Administrator did not present evidence to satisfy the alternative foundational requirements for admission of Administrator's Exhibit 3. Computerized reports require a proper foundation - separate and apart from hearsay concerns. People v. Holowko, 109 Ill. 2d 187, 486 N.E.2d 877, 878-79, 93 Ill. Dec. 344 (1985); Casey, 225 Ill. App. 3d 82, 587 N.E.2d at 515, 167 Ill. Dec. 242; see In re Marriage of DeLarco, 313 Ill. App. 3d 107, 728 N.E.2d 1278, 1286, 245 Ill. Dec. 921 (2d Dist. 2000). Minimally, there must be evidence indicating that the particular device was accurate and operating properly when the evidence was generated. See Holowko, 109 Ill. 2d 187, 486 N.E.2d at 879, 93 Ill. Dec. 344; DeLarco, 313 Ill. App. 3d 107, 728 N.E.2d at 1286, 245 Ill. Dec. 921.

In this case, by contrast, no one from Case Data testified as to the specific workings of the Case Data system. More problematically, no one from Mayer, Brown's IT department testified - to either explain how Case Data worked or to present any evidence about the functioning of the specific computer Kline used at Mayer, Brown. There also was no evidence of any forensic review of the computer on which Kline had worked to determine if Kline had been doing something else online when he was supposed to have been working on the Mayer, Brown project.2 While Thompson and Owen were generally familiar with the Case Data program, neither of them purported to be an expert. Even after their testimony, questions remained about how the Case Data program actually worked, leaving serious doubt about the accuracy of Administrator's Exhibit 3.

The error in admitting a document without a sufficient foundation is compounded where, as here, there is other evidence that casts significant doubt on the reliability of the record.

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E.g., In re Estate of Buddeke, 49 Ill. App. 3d 431, 364 N.E.2d 446, 7 Ill. Dec. 285 (1st Dist. 1977); compare Victory Memorial Hospital v. Rice, 143 Ill. App. 3d 621, 493 N.E.2d 117, 120, 97 Ill. Dec. 636 (2d Dist. 1986) (extensive evidence showing the accuracy of the computer-generated information). The Administrator presumably introduced Administrator's Exhibit 3 for the purpose of proving that Kline worked fewer hours than were eventually billed to Mayer Brown. However, Administrator's Exhibit 3 only purported to show the time elapsed between "edits." There was no testimony that adequately explained the correlation between hours worked and time elapsed between edits - or what an "acceptable" ratio of hours billed to elapsed time between edits would have been. In addition, there was other information that could have been introduced that would have more accurately reflected the time actually worked, such as records of when Kline entered and left the building and the time records submitted to Mayer, Brown and to Ajilon. That information, however, was not introduced into evidence.

The predicate underlying the Administrator's charge was, of course, that the time spent between edits and the hours billed should have been approximately equal. But no witness provided clear, reliable testimony as to what Case Data actually recorded. Instead, the evidence was ambiguous concerning such critical issues as what actually constituted an "edit"; what, if anything, the system would show if an attorney simply viewed a document and moved onto another without making any changes; whether the system prompted the user to affirmatively save any changes made or whether such changes could be inadvertently lost, and whether any record of work done would be lost if documents were later reviewed again.

For example, Thompson testified that Case Data recorded an edit when a document was coded, but also when the user moved between documents. She later testified that the system would not record an edit if the user simply moved between documents. According to Owen's testimony, Case Data had different modes, one for simply looking at documents and

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another that permitted reviewing and editing documents. This leaves open the possibility that a person could inadvertently be in the wrong "mode" and, consequently, that the system might fail to record edits.

Administrator's Exhibit 3 is also flawed on another, more basic, level: it is merely a summary of some of the information recorded on the Case Data system. This is problematic for at least two different reasons. First, a report generated based on a person's selection of certain computer-generated information is hearsay, not falling within any exception to the rule. See Cleary & Graham at sec.803.10. Second, for a summary to be admissible, the original information on which the summary is based must, at a minimum, be made available to the opposing party. See DeLarco, 313 Ill. App. 3d 107, 728 N.E.2d at 1286, 245 Ill. Dec. 921. The original information was not made available to the Respondent here, nor, as it turns out, could it have been because the Respondent's underlying work product was evidently erased almost immediately after the report was generated when the documents that had been assigned to him were re-reviewed.

The Administrator's complaint alleged that Kline engaged in professional misconduct, including conduct involving fraud and dishonesty, because he claimed to have worked a total of 135 hours when in fact he worked only 51 hours and 45 minutes. This allegation, which formed the crux of the charges against Kline, was based entirely on Administrator's Exhibit 3.

The proceedings against a respondent are defined by the allegations of the complaint, and the respondent cannot be disciplined based on misconduct other than that charged in the complaint. In re Lavelle, 94 CH 187 (Review Board Nov. 3, 1995), approved and confirmed, M.R. 11951 (Mar. 26, 1996). We hold that Administrator's Exhibit 3 was

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erroneously admitted into evidence. Further there was insufficient evidence otherwise to prove the Administrator's charges by the clear and convincing standard required.

Where the Administrator has not proven any basis on which to impose discipline, the proceedings should be dismissed and the respondent discharged. See generally In re Sanders, 96 CH 633 (Review Board Dec. 30, 1998); In re Peters, 91 CH 541 (Review Board April 10, 1995), approved and confirmed, M.R. 11421 (Sept. 29, 1995).

Because the evidence essential to the Administrator's case against this respondent is inadmissible, we decline to recommend that the case be remanded for another hearing.

For the foregoing reasons, we reverse the Hearing Board's findings of misconduct and recommend that the charges against Respondent-Appellant, Christian Lawrence Kline, be dismissed with prejudice.

Date Entered: 23 June 2010

Respectfully Submitted,

Daniel P. Duffy
David F. Rolewick
Thomas A. Zimmerman, Jr.

_________________________
1
Kline had sent an e-mail to other contract attorneys, including Naumann, indicating that he was not going to work on December 26, 2005.  Kline billed five hours for that day.  Kline testified that he later changed his mind and worked.  Naumann did not know whether Kline did, or did not, work that day.

2 While there was testimony that other attorneys did not have major computer problems, no one else worked on the computer that Kline used.  In addition, information that first came to light during the hearing indicated that another Ajilon contract attorney had difficulty with the Case Data system and apparently was not coding documents properly.