Filed February 25, 2011
In re John N. Dore
Commission No. 07 CH 122
Synopsis of Review Board Report and Recommendation
The Hearing Board found that Dore asserted frivolous positions or claims in three matters for the sole purpose of harassing the opposing parties or counsel and made false statements about the integrity of a judge. Specifically, it found that Dore asserted a position on behalf of a client when he knew or reasonably should have known that such action would serve merely to harass or maliciously injure another, in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct; brought or defended a proceeding or asserted or controverted an issue therein, when there was no basis for doing so that was not frivolous, in violation of Rule 3.1; used means that had no purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4; advanced a claim that he knew was unwarranted under existing law without a good faith argument for an extension, modification, or reversal of existing law, in violation of Rule 1.2(f)(2); made a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, in violation of Rule 8.2(a); engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. The Hearing Board found that the Administrator did not prove a charge of making a false statement to a tribunal. The Hearing Board recommended that Dore receive a five-month suspension and be required to complete the ARDC Professionalism Seminar.
On review, Dore argued that documents and pleadings filed in the proceedings that gave rise to the charges of misconduct were not admissible and that the Administrator did not prove any misconduct. He further contended that no sanction was warranted.
The Review Board rejected Dore's arguments and recommended that the Hearing Board's findings of fact and misconduct be affirmed. It recommended that Dore's license be suspended for five months and until he completes the ARDC Professionalism Seminar.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
JOHN N. DORE,
Commission No. 07 CH 122
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the exceptions of the Respondent-Appellant, John N. Dore. The Hearing Board found that the Respondent asserted frivolous positions and arguments in three matters that served merely to harass the opposing parties and their counsel and made false statements about the integrity of a judge. The Hearing Board recommended that the Respondent receive a five-month suspension and be required to complete the ARDC Professionalism Seminar.
The Respondent argues on review that the Administrator did not prove any of the charges of misconduct, so there is no basis for a sanction. The Administrator requests that we adopt the Hearing Board's sanction recommendation.
The evidence presented at the Respondent's hearing is set forth in detail in the Hearing Board's Report and Recommendation and need not be repeated here. We summarize below the evidence that is relevant to the issues before us.
At the time of his hearing, the Respondent was 65 years old and had been licensed since 1974. He is a sole practitioner with a general civil practice.
The Respondent represented Angelita Greviskes in an employment discrimination matter filed in the United States District Court for the Northern District of Illinois. As part of the discovery process, the Respondent obtained from the defendant, Universities Research Associates, Inc. d/b/a Fermilab (URA), a copy of the personnel file of one of Angelita's former co-workers, Terry Erickson. On November 24 and 25, 2003, URA received faxes purportedly signed by Ms. Erickson and containing her social security number. The fax instructed URA to send copies of Ms. Erickson's monthly timesheets to "Dore and Rothchild, c/o P.O. Box 393, Batavia, IL" or to fax them to 630-879-8390. That address and fax number belonged to the law firm of Paul Greviskes, Angelita's husband. The faxes were transmitted from the Greviskes's residence.
Counsel for URA, Karen Osgood, sent the Respondent a letter on December 1, 2003, advising him of the faxes. Ms. Osgood stated that Ms. Erickson had neither prepared the faxes nor authorized anyone to sign them on her behalf. Ms. Osgood further stated that the circumstances surrounding the faxes "strongly indicate[d]" that the Respondent or Mr. Greviskes were involved in the forged documents. Ms. Osgood asked the Respondent for a written explanation. The Respondent left Ms. Osgood a voicemail stating that he was not involved in sending the faxes and suggesting that Ms. Osgood make a written apology to him.
URA filed a motion to dismiss the Greviskes matter as a sanction for the forgeries of Ms. Erickson's signature, the disclosure of Ms. Erickson's social security number, and the improper attempt to obtain information after discovery had been closed. After the court set a date for an evidentiary hearing on the motion, Ms. Osgood issued a subpoena to Paul Greviskes to appear at the hearing. The Respondent then served subpoenas upon Ms. Osgood and URA's
payroll manager, Ron Paul. Both URA and the Respondent filed motions to quash the subpoenas filed by the opposing party. The Respondent also sought to prevent the district court from holding a hearing on URA's motion to dismiss and argued in at least three motions that the court lacked jurisdiction to conduct a hearing on the matter. The court rejected the Respondent's arguments and, following a hearing, dismissed the Greviskes complaint based on Angelita's "deceptive, fraudulent, criminal, and inexcusable conduct." Greviskes v. Universities Research Ass'n, 226 F.R.D. 595 (N.D.Ill. 2004). The court further stated that the conduct of Angelita's husband and the Respondent throughout the proceedings on the motion to dismiss were "aimed at preventing the court from inquiring into the matter and determining the facts." Subsequently, the court ordered Angelita to pay the defendants' attorney fees related to the motion to dismiss. The Respondent filed an objection on Angelita's behalf, which the court characterized as "patently frivolous." Greviskes v. Universities Research Ass'n, 342 F.Supp. 763 (N.D.Ill. 2004).
The Respondent appealed the district court's dismissal order and the award of fees and costs to URA. The Seventh Circuit Court of Appeals affirmed both orders. In its opinion, the Court of Appeals stated that the Respondent's arguments were "often incoherent, unsubstantiated, and representative of a continuing litigation practice which evinces bad faith." The Court of Appeals further stated that the appeal was "frivolous on all claims" and ordered Angelita to show cause why she should not be ordered to pay attorney fees and costs related to the appeal. Greviskes v. Universities Research Ass'n, 417 F.3d 752 (7th Cir. 2005). Ultimately, the court ordered Angelita to pay URA $25,000 as a sanction for her conduct related to the appeal. Greviskes v. Universities Research Ass'n, No. 03 C 257 (7th Cir. 2006).
The Respondent testified that he did not believe that the district court had jurisdiction over the issue pertaining the forged faxes because the conduct at issue occurred in
Kane County and did not affect the federal proceedings. The Respondent denied that any of the pleadings he filed in the district and appellate courts were intended to harass anyone or to delay the judicial process.
On December 13, 2004, the Respondent filed a defamation suit in the Circuit Court of Cook County against attorneys Karen Osgood and Thomas Piskorski; their law firm, Seyfarth Shaw; URA; and URA's in-house attorney, David Gassman. The Respondent alleged that the defendants defamed him by accusing him of participating in the forgeries, publishing their accusations in documents filed in the district court, and discussing the accusations with URA attorneys and employees. The Respondent filed the initial complaint and an amended complaint himself but later retained attorney Mitchell Asher, who filed a second amended complaint. In the second amended complaint, the Respondent added the allegation that Ms. Osgood, Mr. Piskorski, and Seyfarth Shaw invaded his privacy because the Chicago Daily Law Bulletin reported on one of the district court's opinions that criticized the Respondent. Pursuant to the defendants' motion to dismiss and motion for sanctions, the circuit court dismissed the Respondent's second amended complaint with prejudice on the ground that the attorney litigation privilege barred the Respondent's claims. The court ordered the Respondent to pay sanctions in the amount of $21,468.04.
The Respondent appealed the circuit court's orders, and represented himself in the appeal. The Illinois Appellate Court for the First District affirmed the dismissal of the Respondent's cause of action.
The Respondent testified that he believed that Ms. Osgood's letter was not privileged and was defamatory per se.
The Respondent represented Pezza Landscape, Inc. (Pezza) in a contract dispute with Cerniglia Company, Inc. (Cerniglia). Attorneys Gregory Adamski and Karen Conti represented Cerniglia. After the appellate court reversed an arbitration award in Pezza's favor, the matter proceeded to a bench trial on December 16, 2004, in the Circuit Court of Cook County before Judge Francis J. Dolan.
Prior to the bench trial, the Respondent moved to strike Cerniglia's Rule 213 disclosure of opinion witnesses and to bar Cerniglia's opinion witnesses from testifying. The Respondent asserted that Mr. Adamski and Ms. Conti must have made up their witnesses' opinions because they were all identical. Judge Dolan denied the Respondent's motion.
During the trial, the Respondent moved to bar Wayne Pesek, a management consultant for Cerniglia, from sitting at Cerniglia's counsel table and from testifying. Judge Dolan denied the Respondent's motions.
At the conclusion of the bench trial, after Judge Dolan announced his ruling against Pezza and in favor of Cerniglia's counterclaim, the Respondent accused Mr. Adamski and Ms. Conti of suborning perjured testimony from Mr. Pesek. Judge Dolan held a hearing and determined that the Respondent's accusation lacked any factual basis.
The Respondent filed a post-trial motion on January 18, 2005. In it, he stated numerous times that Judge Dolan ignored the law, chose to base his rulings on false evidence, manipulated the evidence in favor of Cerniglia, and acted as an advocate for Cerniglia. The Respondent further stated that "[t]he absolute failure of the proofs on behalf of the Defendant caused what constitutes a judicial conversion."
In subsequent motions and responses to motions filed by Cerniglia, the Respondent repeated his accusations that Mr. Pesek committed perjury, Mr. Adamski and Ms. Conti suborned perjury, and Judge Dolan acted as an advocate for Cerniglia.
On December 21, 2005, Judge Dolan denied the Respondent's post-trial motion. The Respondent filed a motion to substitute Judge Dolan for cause, which again asserted that Judge Dolan was not objective, changed the evidence, and disregarded the actual evidence. The Respondent's motion was denied.
Judge Dolan granted Cerniglia's motion for Rule 137 sanctions against the Respondent and awarded $500 to Mr. Adamski. Judge Dolan's order stated that the Respondent's post-trial pleadings contained "numerous and continued false and reckless allegations, made by plaintiff's counsel directed at the Court's integrity" and made "false and baseless claims" against both opposing counsel and the court as well as numerous "factual and evidentiary distortions and mischaracterizations." Judge Dolan ordered that copies of his orders be sent to the ARDC.
The Respondent appealed the judgment and sanctions. The appellate court affirmed Judge Dolan's judgment.
Before the Hearing Board, Mr. Adamski and Mr. Pesek testified that Mr. Pesek did not give false testimony and that neither Mr. Adamski nor Ms. Conti asked him to do so.
Judge Dolan denied that he engaged in any improper conduct during the Pezza trial. He testified that he took the Respondent's attacks on his integrity to heart because no other attorney ever made such accusations against him.
The Respondent testified at length about rulings by Judge Dolan that he believed were improper. The Respondent said that he felt outraged and aggravated by the rulings. He
acknowledged that his arguments in his post-trial pleadings were "seriously overstated" and he regrets using such language.
The Hearing Board's finding that the Administrator did not prove the charges in Count IV is not at issue on review, so we need not set forth the evidence pertaining to that count.
In mitigation, the Respondent testified that he has no prior discipline, has cooperated in this proceeding, and does charitable work for his church. He stated that as a result of this proceeding he has learned that if he disagrees with a judge's ruling he should preserve his objection and move on rather than letting his emotions control his conduct.
The Respondent presented Associate Judge James Karahalios, and attorneys Robert Hall and Edward Rothschild as character witnesses. All of the witnesses testified that the Respondent has an excellent reputation for honesty and integrity.
HEARING BOARD'S FINDINGS
The Hearing Board found that the Respondent committed all of the charged misconduct in Counts I-III. Specifically, it found that the Respondent asserted a position on behalf of a client when he knew or reasonably should have known that such action would serve merely to harass or maliciously injure another, in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct (Counts I-III); brought or defended a proceeding or asserted or controverted an issue therein, when there was no basis for doing so that was not frivolous, in violation of Rule 3.1 (Counts I-III); used means that had no purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4 (Counts I-III); advanced a claim that he knew was unwarranted under existing law without a good faith argument for an extension,
modification, or reversal of existing law, in violation of Rule 1.2(f)(2) (Count II); made a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, in violation of Rule 8.2(a) (Count III); engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) (Counts I-III); and engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770 (Counts I-III).
Based on the financial harm that resulted from the Respondent's frivolous filings and the risk of harm caused by his false accusations of perjury and judicial bias, the Hearing Board recommended that the Respondent's license be suspended for five months and until he completes the ARDC Professionalism Seminar.
The Respondent argues that the Administrator did not prove any of the misconduct charged in Counts I-III. For the following reasons, we disagree.
The Administrator bears the burden of proving the charges against a respondent by clear and convincing evidence. The Hearing Board is the trier of fact, and we will not disturb its findings unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). A 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.
With respect to Count I, the Respondent asserts that it was improper for the Hearing Board to consider "submissions, filings, and judicial opinions and orders" that were filed in the proceedings that gave rise to the charges of misconduct. The Respondent relies on In re Jerome, 31 Ill.2d 284, 201 N.E.2d 440 (1964) and In re Owens, 125 Ill.2d 390, 532 N.E.2d 248 (1988). The Respondent's argument fails for several reasons.
First, the Respondent never raised this issue during his hearing and, as the Administrator notes, stipulated to the admission of most of the documents about which he now complains. Consequently, the Respondent failed to preserve this issue and has waived it for purposes of review. See In re Betts, 109 Ill.2d 154, 168, 485 N.E.2d 1081 (1985).
Waiver notwithstanding, the Respondent's argument lacks merit. The Respondent was charged with asserting frivolous positions in the Greviskes matter in order to obstruct the district court's efforts to ascertain who was involved in sending the forged faxes. The documents to which the Respondent now objects form the basis of the charges in Count I. The Hearing Board routinely admits and considers such evidence when a respondent is charged with violating Rule 1.2(f), 3.1, or 4.4. See In re Brooks, 05 CH 47 (Hearing Board, Sept. 4, 2007); In re Romanski, 03 CH 90 (Hearing Board, Feb. 4, 2005); In re Hoffman, 08 SH 65 (Hearing Board, Aug, 12, 2009). Neither Jerome nor Owens involved similar charges. Consequently, they do not support the Respondent's position.
The Hearing Board properly relied on the documents filed in the Greviskes matter and those documents amply support the Hearing Board's findings as to Count I.
With respect to Count II, the Respondent asserts that it was improper for the Hearing Board to interpret the letter from Ms. Osgood that formed the basis of the Respondent's defamation action and to determine, based on its interpretation, that the Respondent lacked a meritorious basis for filing his defamation claim.
The Respondent's criticism of the Hearing Board for interpreting Ms. Osgood's letter is somewhat confusing as it was the Respondent's insistence that he had a valid factual basis for his defamation claim, even after the circuit court and appellate court determined otherwise, that necessitated the Hearing Board's finding. Given the Respondent's defense, we
fail to see how the Hearing Board could have made findings on Count II without interpreting Ms. Osgood's letter. Moreover, the Hearing Board followed Illinois law, which provides that whether a statement is reasonably understood as defamatory is generally a question of fact but, when reviewing the allegations of a complaint pursuant to a motion to dismiss, a court may determine whether the allegedly defamatory remark is reasonably susceptible to innocent construction. See Heerey v. Berke, 188 Ill.App.3d 527, 530, 544 N.E.2d 1037 (1st Dist. 1989). Nothing in the record or in the arguments provided by the Respondent convinces us that the Hearing Board's finding was erroneous. The Respondent's contention that Mr. Adamski admitted that the letter contained statements that were defamatory per se is not supported by the record. Mr. Adamski made no such admission.
The Respondent also criticizes the Hearing Board's application of the attorney litigation privilege but provides no legal authority to support his claim of error. The cases cited by the Hearing Board, particularly Atkinson v. Affronti, 369 Ill.App. 3d 828, 861 N.E.2d 251 (1st Dist. 2006), directly address the issue of the attorney litigation privilege and support the Hearing Board's finding that the privilege applied to Ms. Osgood's letter. Accordingly, the Respondent has failed to demonstrate any error with respect to Count II.
The Respondent devotes much of his argument on Count III to rehashing issues that he found objectionable in the Pezza matter. It is not this Board's role to address Judge Dolan's rulings or the evidence presented by the attorneys for Cerniglia. The appellate court addressed and rejected the Respondent's contentions of error. Only the Respondent's conduct is at issue in this proceeding. Therefore, we decline to address any of perceived errors in the proceedings before Judge Dolan.
The Respondent challenges the Hearing Board's findings that witnesses Pesek, Adamski, and Dolan were credible. Our deference to the Hearing Board's credibility findings is well-established. See In re Ingersoll, 186 Ill.2d 163, 169, 710 N.E.2d 390 (1999). The Hearing Board had the opportunity to listen to the witnesses' testimony and observe their demeanor. It found that Mr. Adamski, and Judge Dolan were credible. It further found that there was no evidence that caused any doubt as to Mr. Pesek's veracity. While the Respondent disagrees with the Hearing Board's credibility findings, he has not presented any evidence that would cause us to disturb them.
The Respondent also challenges the Hearing Board's reference to the complaint he filed against Judge Dolan with the Judicial Inquiry Board. The Respondent contends that the complaint, which is supposed to remain confidential, was part of the basis for the Hearing Board's findings of misconduct. The Hearing Board's Report and Recommendation indicates otherwise.
Although the Hearing Board noted that the Respondent attacked Judge Dolan's integrity in his complaint to the Judicial Inquiry Board, it went on to state that "we do not base any findings of misconduct on the statements to the board." Hearing Board Report and Recommendation at 47. Therefore, we see no basis in the record for the Respondent's position that the Hearing Board improperly considered his complaint to the Judicial Inquiry Board.
The Respondent contends that a sanction is not warranted in this case because he did not commit misconduct. In light of our determination that the evidence supports the Hearing Board's findings of misconduct, we disagree.
When making our sanction recommendation, we consider the nature of the misconduct as well as any factors in mitigation and aggravation. Our goal is to recommend a sanction that is consistent with sanctions imposed in cases involving similar misconduct while considering the particular circumstances of the case before us. See In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). In addition, we bear in mind that the purpose of the disciplinary process is not to punish a respondent but to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Spak, 188 Ill.2d 53, 67-68, 719 N.E.2d 747 (1999). We consider the Hearing Board's recommendation, but are not bound by it. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981).
The Hearing Board recommended that the Respondent's license be suspended for five months and that he be required to complete the ARDC Professionalism Seminar. The Administrator asks us to adopt the Hearing Board's recommendation.
As the Hearing Board notes, sanctions for filing frivolous pleadings and making unfounded accusations against the judiciary range from censure to disbarment. Our recommendation is guided by the recent case of In re Hoffman, 08 SH 65 (Review Board, June 23, 2010), petition for leave to appeal denied, No. M.R. 24030 (Sept. 22, 2010). Hoffman sent a letter to a circuit court judge accusing the judge of having "serious mental issues" and a "personal vendetta" that affected his judgment. During a telephone conference, Hoffman refused to appear before the judge and called the judge a "narcissistic, maniacal, mental case." Additionally, in an administrative hearing before the Department of Children and Family Services (DCFS), Hoffman repeatedly accused the Administrative Law Judge of being an advocate for DCFS and referred to the proceeding as a "kangaroo court" and "a joke." Hoffman
was also found to have made an improper remark about the religious background of opposing counsel in a third matter.
Hoffman had no prior discipline in over 35 years of practice. The Hearing Board found that he gave false testimony and was disrespectful during his hearing and did not recognize why his conduct was unethical. For these reasons, the Review Board recommended that Hoffman's license be suspended for six months and until further order of the court. The supreme court agreed with the Review Board's recommendation. Hoffman, No. M.R. 24030 (Sept. 20, 2010).
While not identical, the Respondent's misconduct is similar to Hoffman's. The Respondent's language was not as abusive as Hoffman's, but the Respondent asserted frivolous positions for the purpose of obstruction or harassment in three matters, which Hoffman did not. Unlike Hoffman, the Respondent appears to have gained some understanding from these proceedings of the need to control his emotional responses to adverse decisions. Also unlike Hoffman, the Respondent presented evidence from a judge and two attorneys of an excellent reputation for honesty and integrity. For these reasons, we conclude that the Respondent's misconduct warrants a lesser sanction than Hoffman's.
That said, the Respondent's unfounded accusations against Judge Dolan and the frivolous claims or positions he asserted in three separate matters warrant a period of suspension. The Respondent's misconduct is aggravated by the fact that he wasted the time and resources of the federal and the Illinois courts, caused needless expense for his opposing parties, and harmed Judge Dolan by maligning his integrity. In the Respondent's favor, we consider the positive character evidence he presented, his lack of prior discipline in approximately 35 years of practice, and his cooperation in the disciplinary proceedings.
We agree with the Hearing Board that a five-month period of suspension will adequately protect the public, the administration of justice, and the integrity of the legal profession while allowing the Respondent the opportunity to reflect on his conduct and take whatever steps are necessary to prevent similar misconduct in the future. See also In re Chiang, 07 CH 67, No. M.R. 23022 (May 18, 2009); In re Andion, 95 Ch 808, No. M.R. 11898 (Jan. 23, 1996). We further agree with the Hearing Board that the Respondent should be required to complete the ARDC Professionalism Seminar.
We recommend that the Hearing Board's findings of fact and misconduct be affirmed, and that the license of the Respondent, John N. Dore, be suspended for five months and until he completes the ARDC Professionalism Seminar.
Date Entered: 25 February 2011
Daniel P. Duffy