BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 08 CH 89
FILED - March 19, 2009
STIPULATION OF FACTS AND
RECOMMENDATION FOR DISCIPLINE
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Dorothy B. Zimbrakos, and Respondent Philip Richard Torf, by his attorneys, William J. Harte and Eric Gruber, stipulate that the following facts could be proven by clear and convincing evidence at a hearing:
I. JOINT STIPULATION OF FACTS
1. In addition to being a lawyer licensed to practice law in Illinois 1984, Respondent has been an Illinois licensed pharmacist since 1976.
2. In the spring of 2005, attorney Robert Allan Holstein ("Holstein") contacted Respondent, told Respondent that he had a case involving the drug Neo-Synephrine, and inquired about Respondent's knowledge regarding that drug. At that time, Neo-Synephrine was a non-prescription drug manufactured by Bayer Corporation ("Bayer"). Holstein was one of the plaintiff's lawyers in the case entitled, Kathi Orso [sic], Urso individually and on behalf of all persons similarly situation v. Bayer Corp., Case No. 04 CV 0114 (N. D. Ill. 1984), a putative class action relating to Neo-Synephrine. In the Complaint in Case No. 04 CV 0144, the plaintiff alleged that she suffered injuries from using Neo-Synephrine, an over-the-counter nasal
decongestant manufactured by Bayer, because she allegedly could not breathe without the use of a topical nasal decongestant after three days of using Neo-Synephrine. After some discussion, Respondent told Holstein that he would do some research into Neo-Synephrine.
3. On or about June 17, 2005, Respondent contacted Bayer at the consumer help line number that was listed on the purchased package of extra-strength Neo-Synephrine and also on Bayer's web site. Respondent left a voicemail message on the consumer help line that was listed on the purchased package for Bayer in which he identified himself as a pharmacist and asked whether Bayer had any information or articles on addiction and rebound congestion, the issues at stake in Case No. 04 CV 0114.
4. At no time during the voicemail message described in Paragraph 3 above did Respondent identify himself as a lawyer.
5. On June 20, 2005, Eileen Barry, the Senior Associate Director of Drug Safety, returned Respondent's telephone call. Because Respondent had identified himself as a pharmacist, Ms. Barry believed that Respondent was a pharmacist inquiring on behalf of a customer, and she left a message on his voice-mail answering his initial questions about rebound congestion and Neo-Synephrine.
6. On June 20, 2005, Respondent again telephoned Bayer and left a voicemail message asking further questions regarding Neo-Synephrine. Again, Respondent identified himself only as a pharmacist, not as a lawyer, during that voicemail message.
7. On or about June 28, 2005, Jadine Stephan, the Manager of Drug Safety for Bayer HealthCare LLC, Consumer Care Division, a subsidiary of Bayer, and a member of Bayer's control group, retrieved the voicemail message from Respondent described in Paragraph 6 above and returned his telephone call. Believing that Respondent was a pharmacist inquiring on behalf
of a customer, Ms. Stephan provided Respondent with information about discontinuance of nasal decongestants from the Textbook of Internal Medicine 5th Edition.
8. At no time during the telephone conversation described in Paragraph 7 above did Respondent disclose that he was an attorney, or that he was consulting with or had been requested to assist other attorneys in any way involving Case No. 04 CV 0114.
9. On June 30, 2005, Respondent called Ms. Stephan and requested that she respond in writing to five specific questions regarding Neo-Synephrine as follows:
how does Neo-Synephrine work, pre or post-synaptically;
what causes rebound congestion;
how is rebound congestion treated;
are there any printed materials about Neo-Synephrine for health professionals; and
was the 1% solution ever a prescription product.
Respondent also asked Ms. Stephan to telefax the answers to these questions to (847) 291-3436.
10. At no time during the telephone conversation described in Paragraph 9 above did Respondent disclose that he was an attorney, or that he was consulting with or had been requested to assist other attorneys in any way involving Case No. 04 CV 0114. Nor did Respondent inform Ms. Stephan that the telefax number he gave her was the telefax number for his law practice or that the telefax would be sent to a lawyer's office.
11. On July 12, 2005, believing that Respondent was a pharmacist inquiring on behalf of a customer, Ms. Stephan telefaxed written responses to the questions listed in Paragraph 9 above to Respondent at the telefax number he had provided to her.
12. At all times related to the matters in this complaint, Respondent knew or should have known that Bayer was represented by attorneys in Case No. 04 CV 0114.
13. At no time did Respondent obtain the consent of lawyers from Bayer in Case No. 04 CV 0114 to contact Bayer's employees directly.
14. Based on the information he had obtained from Bayer and from Ms. Stephan in particular, Respondent assisted Holstein in drafting an Amended Complaint in Case No. 04 CV 0114.
15. On July 27, 2005, fifteen days after Respondent received the telefax from Ms. Stephan, Holstein, on behalf of the plaintiff in Case No. 04 CV 0114, filed plaintiff's Amended Complaint. The Amended Complaint made use of the information that Respondent had obtained from Bayer. Respondent's name was listed as one of the plaintiff's attorneys on that pleading, although he did not file a formal appearance in Case No. 04 CV 0114 until August 2, 2005.
16. Based on the information Respondent had obtained from Bayer, Plaintiff's Amended Complaint in Case No. 04 CV included a new legal theory of an alleged common law duty owed by Bayer to the plaintiff to warn physicians of the dangers of overuse of Neo-Synephrine or, in the alternative, to warn consumers that it was not advising physicians about Neo-Synephrine's dangers on its labeling. The Amended Complaint also included a new theory regarding an alleged design defect of Neo-Synephrine because it contained a neurotransmitter that affected the body's reaction to other neurotransmitters after limited exposure. The First Amended Complaint alleged that exposure to Neo-Synephrine and to the neurotransmitters allegedly caused plaintiff's injuries.
17. On October 17, 2005, Bayer filed a motion to dismiss the plaintiff's First Amended Complaint in Case No. 04 CV 0144.
18. On February 7, 2006, Respondent, on behalf of the plaintiff in Case No. 04 CV 0144 filed Plaintiff's Response to [Bayer's] Motion to Dismiss Amended Complaint
("Response"). In that Response, Respondent stated that the new legal theory of a common law duty "was pleaded based on newly acquired information obtained by Plaintiff's counsel. The newly acquired facts are set forth in Exhibit B, a letter from [Bayer] containing numerous admissions." Exhibit B was a copy of the letter described in Paragraph 11 above, that Ms. Stephan had telefaxed to Respondent on July 12, 2005, answering the questions that Respondent had posed to her that are set forth in Paragraph 9 above. Respondent signed the Response.
19. Upon reviewing plaintiff's Response, Bayer's attorneys, Pamela L. Gellen and Kevin J. Clancy, first learned of Respondent's unauthorized contacts with Bayer set forth in Paragraphs 3 to 11 above. On March 6, 2006, attorneys Gellen and Clancy filed, on behalf of Bayer in Case No. 04 CV 0144 a "Motion by Defendant Bayer Corporation for Sanctions Because Plaintiff's Attorneys had Ex Parte Contacts with Bayer." In that motion, Bayer requested, inter alia, that the court should strike "all references to Exhibit B or the information contained in that exhibit" in the plaintiff's Response as a sanction for Respondent's unauthorized contacts with Bayer while Respondent knew that Bayer was represented by counsel.
20. On September 27, 2006, the Honorable Joan B. Gottschall entered a Memorandum Opinion and Order in Case No. 04 CV 0144 in which she, inter alia, denied Bayer's motion for sanctions, but granted Bayer's request that Exhibit B be stricken. In that Opinion, Judge Gottschall stated:
[Respondent's] conduct in light of these two cases is extremely troubling, and the court might well be able to justify an award of sanctions. Although [Respondent] may not have been Urso's legal counsel at the time of the communication, he was nevertheless an attorney who was performing a quasi-legal function and who should have been on notice of Local Rule 83.54.2 [of the United States District Court for the Northern District of Illinois]. Regardless of whether he was working independently or at the behest of Urso's attorneys when he contacted Bayer, his communication was motivated by the litigation. In responding to the motion for sanctions, Urso makes clear that [Respondent] knew he was being consulted about litigation because he (or at least Urso) says he was
conducting Rule 11 diligence. The fact that he may not have known the finer points of the litigation is irrelevant since he clearly knew that he was being asked for information to assist with pending or planned litigation. He should have also known that Bayer was a party that would be represented by counsel. Additionally, [Respondent] received enough information from Urso's attorneys that he knew the right questions to ask Bayer. Any attorney should have known that there was some type of dispute in which Neo-Synephrine, and therefore Bayer, was implicated.
Local Rule 83.54.2 of the United States District Court for the Northern District of Illinois is identical to Rule 4.2 of the Illinois Rules of Professional Conduct.
22. By reason of the conduct described above, Respondent has engaged in the following misconduct:
during the course of representing a client, communicated or caused another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter without first obtaining the prior consent of the lawyer representing such other party in violation of Rule 4.2 of the Illinois Rules of Professional Conduct; and
conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
III. FACTORS IN MITIGATION
23. Respondent has been admitted to practice law in Illinois since November 15, 1984, and has never been previously disciplined.
24. Respondent acknowledges that his conduct as set forth in the Administrator's Complaint and in this Stipulation was inappropriate and improper. Respondent expresses his remorse and contrition with respect to that conduct.
25. If Respondent were called to testify in this proceeding, he would testify that his communications with Bayer's employees were made to comply with his responsibility under Rule 11 of the Federal Rules of Civil Procedure to conduct an inquiry and investigation of facts in any filed lawsuit.
26. Respondent has cooperated with the Administrator and the Commission throughout the investigation and prosecution of this matter.
27. Respondent organized and acts as general counsel for the Northeastern Illinois Pharmacists Association on a pro bono basis, has lectured to pharmacy students on pharmacy in the law, has participated in a MCLE program on pharmacy in the law, and is working with others in rewriting the Pharmacy Practice Act rules. He has performed volunteer work at his temple, has lectured high school students on drugs, and published a few law-related articles in pharmacy journals.
IV. JOINT RECOMMENDATION OF DISCIPLINE
28. The parties hereby waive the twenty-one day period for filing exceptions and request that the Hearing Board administer a reprimand to Respondent at the conclusion of this hearing in this matter pursuant to Commission Rule 282.
29. The recommendation is consistent with the sanction in In re Ditkowsky, Commission No. 89 CH 389 (December 11, 1997); In re Kyles, 97 CH 43 (December 11, 1997); and In re Varlas, 99 RC 1508, M.R. 15932 (September 19, 1999).
30. In Ditkowsky, the Hearing Board reprimanded Ditkowsky for communicating with a corporation involved in a dispute with Ditkowsky's client without authorization from the corporation's lawyer. Ditkowsky claimed that he sent the letter to the corporation without authorization from the corporation's lawyer to comply with his responsibilities under Rule 11 of
the Federal Rules of Civil Procedure and Supreme Court Rule 137 to conduct an inquiry and investigation of facts in any filed lawsuit.
31. In Kyles, the respondent was reprimanded by the hearing board after he sent written correspondence directly to the opposing party in a civil matter when the lawyer knew the party to be represented. The recipient, an ill woman in her eighties, was a member of a vulnerable class. The communication Kyles sent threatened to bring criminal charges if the party did not respond to the communication and caused the woman much distress. In addition, Kyles was charged with making statements which could have been interpreted as misrepresentations to the media about criminal action pending against the parties to the litigation.
32. In Varlas, the respondent was reciprocally reprimanded for neglecting a dissolution matter, initiating direct communication with the adverse party in the dissolution, and attempting to impose a judgment against her client for her attorney's fees as a condition of settlement in the dissolution matter.
33. In light of all the facts and circumstances set forth above, the parties agree and consent to an Order of the Hearing Board that Respondent be reprimanded.
WHEREFORE, the Administrator and Respondent jointly request that the Hearing Board enter an order reprimanding Respondent as a result of his misconduct.
By: Erik D. Gruber
In the Matter of:
Commission No. 08 CH 89
FILED - March 19, 2009
Based upon the agreement and stipulation of the parties, the panel of the Hearing Board hereby makes findings and reprimands you, Philip Richard Torf, as follows:
1. You are being reprimanded because, during the course of representing a client in a dispute with a corporation, you had unauthorized communications with the corporation without obtaining the prior consent of counsel for the corporation.
2. Attorneys have an obligation to avoid conduct that could bring the legal profession into disrepute.
3. Your conduct as described in this Reprimand and in the Stipulation of Facts was improper. You have violated Rules 4.2 and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770. You are therefore reprimanded not to repeat the conduct that resulted in this imposition of discipline.
4. You are further advised that, while this reprimand is not formally presented to the Supreme Court, it is not to be taken lightly. This reprimand is a matter of public record and is on file with the Attorney Registration & Disciplinary Commission and may be admitted into evidence in subsequent disciplinary proceedings against you.
5. While the Panel agrees that the stipulated remedy is appropriate, we do not agree that the Respondent's conduct was without harm. The Respondent's conduct was undertaken by an attorney with twenty years' experience and has caused, at a minimum, the legal profession to be brought into disrepute.
WHEREFORE, Philip Richard Torf, you are hereby REPRIMANDED. You are admonished not to engage in such misconduct in the future and to strictly comply with the Rules of Professional Conduct.
|Date entered: April 29, 2009||Patrick M. Blanchard,
Chair of the Hearing Panel
Jay A. Frank
Harry M. Hardwick