BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 08 SH 65
FILED - July 14, 2008
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, pursuant to Supreme Court Rule 753(b), complains of Respondent, Melvin H. Hoffman, who was licensed to practice law in the State of Illinois on October 30, 1973, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or which brings the courts or the legal profession into disrepute:
(False Statements Regarding The Integrity Of A Judge and Conduct Prejudicial to the Administration of Justice -Solner Dissolution)
1. On December 11, 1997, the Cook County Circuit Court granted Michael Charles Solner ("Michael") and Kimberly Solner, n/k/a Kimberly Novak, ("Kimberly") a dissolution of their marriage in the case of In re the Marriage of Michael Solner v. Kimberly Solner, Cook County case no. 96 D5 30578. The parties were awarded joint custody of their four-year-old daughter, Robin. Robin thereafter lived with Kimberly. Kimberly later married Dave Novak ("Dave").
2. On November 16, 2007, Michael signed an Emergency Petition For Change of Custody ("Emergency Petition"), in case no. 96 D5 30578. In his Emergency Petition, Michael alleged that Dave made inappropriate sexual comments to Robin, now age 14, including asking her if she was a lesbian, telling her to "work the street corner," commenting on the breasts and buttocks of Robin's friends, and telling Robin he had videotaped her in her bedroom. According to the Petition, when Robin complained to Kimberly about Dave's conduct, Kimberly told Robin she was overreacting; and Robin was afraid of Dave.
3. On November 16, 2007, Michael, through his attorney Joel Schaps ("Schaps"), served Kimberly by mail with a copy of the Emergency Petition, along with a notice of hearing on the Emergency Petition set for November 27, 2007. Kimberly received the notice on or about November 17, 2007.
4. On or about November 17, 2007, Respondent agreed to represent Kimberly in the Emergency Petition filed by Michael.
Proceedings in Cook County on November 27, 2007
5. On November 27, 2007, Respondent, Kimberly, Michael and Schaps appeared before Judge Patrick T. Murphy on the Emergency Petition in case no. 96 D5 30578.
6. Respondent informed the Court that both parties resided outside of Cook County and that he had filed a petition to establish the Cook County judgment in LaSalle County on November 15, 2007. Respondent made an oral motion to transfer the case to LaSalle County, arguing that Cook County did not have jurisdiction, as none of the parties currently resided in Cook County.
7. Judge Murphy denied Respondent's oral motion to transfer the case to LaSalle County, and stated that Cook County had jurisdiction to hear the emergency matter. Judge Murphy told the parties he would conduct a hearing on the Emergency Petition filed by Michael.
8. Respondent thereafter handed the judge a handwritten motion for substitution of judge.
9. Judge Murphy denied the motion for substitution of judge as untimely, as he had made a substantive ruling in the case prior to the request for change of judge.
10. Judge Murphy then interviewed Robin, in chambers, over Respondent's objection.
11. Pursuant to Judge Murphy's order, Robin was interviewed by Dr. Michael Karpowicz ("Dr. Karpowicz"), a case manager in the Cook County Circuit Clerk's Case Management program.
12. Dr. Karpowicz recommended to the Court that Robin temporarily stay with her father, Michael.
13. After Dr. Karpowicz made his recommendation, the parties went back on the record in front of Judge Murphy. Dr. Karpowicz testified regarding his background and qualifications, and his recommendation in the case.
14. The Court asked counsel if they had any questions of Dr. Karpowicz. Respondent stated he had no questions but again objected to the procedure being used by the Court.
15. Judge Murphy entered an order transferring temporary custody of Robin to Michael.
Proceedings following the November 27, 2007 hearings
16. On December 24, 2007, Respondent filed a Motion To Dismiss [the Emergency Petition for Change of Custody] in case no. 96 D5 30578. Respondent prepared an affidavit, which Kimberly signed and was attached to the Motion To Dismiss. The affidavit stated, inter alia, that Dr. Karpowicz told her in the initial meeting that he would recommend Robin continue to live with her (Kimberly), but that he testified to the contrary in front of Judge Murphy, when he then recommended that Robin stay temporarily with Michael. The affidavit further stated that:
"It should be noted that approximately 45 minutes to one hour lapsed from the time I left the ‘case management' office in the basement to the time the Court again called the matter for hearing. During a part of that time, the Judge was in Chambers." Par. 43.
17. At no time did on November 27, 2007 did Judge Murphy talk to Dr. Karpowicz regarding the merits of case no. 96 D5 30578.
18. On December 30, 2007, the Court entered an order setting the case for hearing on January 10, 2008 for further hearing. On January 10, 2008, the Court entered an order setting the case for hearing on February 8, 2008.
February 8, 2008 proceedings
19. On February 8, 2008, Schaps appeared, but Respondent did not appear before Judge Murphy. Schaps represented to the Court he did not object to transferring the case to LaSalle County. Judge Murphy stated he was not prepared to transfer the case to LaSalle County until Respondent appeared in court and explain certain paragraphs of Kimberly's affidavit, described in Paragraph 15, above, which Judge Murphy believed could contain perjury.
20. On February 8, 2008, the Court then entered an order denying Respondent's Objection To Venue and/or Motion To Transfer Venue, Motion To Dismiss, Motion To Strike Emergency Petition for Change of Custody, and Motion to Reconsider Motion For Change of Judge.
21. Schaps then telephoned Respondent to determine a mutually convenient date on which the parties could appear in court. Schaps reported back to the Court that Respondent wished to be heard on the issue on the Court's speakerphone.
22. The Court then conducted a hearing in chambers, with Schaps present in person and Respondent appearing by speakerphone.
23. During the hearing on February 8, 2008, Respondent stated to Judge Murphy "You are a narcissistic, maniacal, mental case. You should not be on the bench. I am not appearing before you."
24. Judge Murphy then stated he was probably going to transfer the case to LaSalle County, but that he wished the attorneys to appear before him regarding the affidavit described in Paragraph 15, above.
25. Respondent then stated again, in a louder voice, "You are narcissistic, maniacal, mental case and should not be on the bench."
26. When Judge Murphy continued to explain his ruling, Respondent stated "I refuse to appear in your courtroom. This case is pending in LaSalle County. You have no jurisdiction." Respondent then hung up the phone.
Events following the February 8, 2008 hearing
27. On February 12, 2008, Respondent wrote a letter to Judge Murphy, and sent a copy to Schaps. In his letter, Respondent stated that Judge Murphy's November 27, 2007 order had been "effectively superseded" by the court in LaSalle County. Respondent further stated that he understood Judge Murphy was going to conduct a further hearing in Cook County regarding the affidavit, despite his willingness to transfer the custody matter to LaSalle County. Respondent stated:
"If that is correct, and no Motions are pending in Cook County, it is extremely difficult to comprehend any justification or motivation whatsoever for requiring the appearance of counsel other than the interjection of your personal vendetta in an attempt to rationalize your own mistake in summarily placing a 14 year old child with a drug and alcohol addict.
As an officer of the court, I must bluntly state that you appear to have serious mental issues involving extreme narcissism and illusions of grandiosity which effectively interferes with your ability to act as a Judge. I am certain that this is the opinion of many other lawyers who are acquainted with you. I am aware of your tendency toward self-promotion and your blatant insinuation that you somehow have a superior ability to ascertain peremptorily and without the presentation of appropriate evidence the best interest of children. Do you in any manner accept the reality of the jeopardy in which you placed this child? Is it possible that you could apologize to my client, who has had custody of this child since birth and suffered weeks of sleepless nights wondering whether her child would return safely from her substance addicted and irresponsible former husband? Are you capable of self-examination, or do you simply react negatively and defensively to any suggestion that you are incapable of error? "
28. The Court thereafter transferred the case to LaSalle County, and retained jurisdiction and conducted a hearing on the limited issue of Kimberly's affidavit described in Paragraph 15, above.
29. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
making a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer, in violation of Rule 8.2 (a) of the Illinois Rules of Professional Conduct;
using means that have no substantial purpose other than to embarrass, delay, or burden a third person in violation of Rule 4.4 of the Illinois Rules of Professional Conduct;
engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.
(Conduct Prejudicial to the Administration of Justice -DFCS hearing)
1. In 1998, Respondent represented Christine Allison ("Allison") in an administrative appeal with the Department of Children and Family Services (DCFS). Allison was appealing the decision of DCFS to revoke her foster parent license due to an alleged licensing violation.
2. On August 5, 1998, Respondent appeared with his client at an administrative hearing held before DCFS Administrative Law Judge Judith Heineken. ("ALJ Heineken")
3. Pursuant to 705 ILCS 405/2-18(4)(c) (West 1998), as well as 89 Ill. Adm. Code §336.130(b)(a) (West 1998), the parties were allowed to use certain hearsay evidence in proceedings before the Administrative Law Judge regarding allegations of abuse by a minor.
4. Pursuant to DCFS procedures, hearings regarding indicated findings of abuse are conducted by administrative law judges from the administrative hearings unit. Illinois courts have held such an organizational scheme satisfies due process. See, Scott v. Department of Commerce and Community Affairs, 54 Ill. 2d 42 (1981).
5. Respondent repeatedly objected to the use of hearsay at the hearing, and repeatedly complained that ALJ Heineken was employed by DCFS, and therefore she could not be an impartial decision-maker. Respondent concluded the hearing by stating that "[T]his is a kangaroo court by definition."
6. During the course of the administrative hearing conducted by ALJ Heineken, Respondent made the following statements:
Excerpts of the August 5, 1998 Hearing
ALJ: [responding to Respondent's inquiry about the hearsay rule] That is in our rules as well.
Respondent: Rule formulated by whom, ma'am?
ALJ: They are the Department's rules.
Respondent: And the Department is the adversary in this proceeding, I might add.
Respondent: So, in other words, they make the rules, they interpret the rules, and we call this an independent, fair tribunal. Is that what you're trying to say?
Respondent: Well, I'm going to object to this proceeding to begin with because it's not constitutionally a proper proceeding in that the Department of Children and Family Services has both the role here as advocate for the Department and adversary role to my client and also hires and employs the hearing officer who purports to be independent, which she obviously is not since she's employed by the same agency and under the same state umbrella.
Respondent: [after ALJ overrules the above objections] Well, what about the fact that you're employed by the adversary party in terms of a conflict of interest? If a judge in a court of law was employed by the adverse party, I don't think there would be any question under the so-called code of ethics you were mentioning before or the rules of professional responsibility, but for some reason we don't have any consistency in these rules, do we?
Respondent: [after the ALJ pointed out certain Department and Administrative Procedural Act rules] I know that very well. You don't have to explain that to me.
ALJ: Well, counsel, I'm also going to tell you that you were notified that if you wished to have anyone subpoenaed, you were supposed to---
Respondent: Ma'am, I've made my record clear here that I don't want this young man here. I don't care if he shows up or not. I cross-examined him for half a day. He was found not to be credible. It's the Department's case that relies upon him. They don't have him here. Am I going to have to say that for the third time?
Respondent: You're indicating in advance and I will guarantee that you will allow hearsay testimony here despite the fact and that you will probably consider it because you are employed by the Department of Children and Family Services and know these people, are personally acquainted with them, and have a conflict for that reason also.
(Tr. 21 -22)
Respondent: [after the ALJ overrules Respondent's hearsay objection] How did I anticipate that with such an objective hearing officer.
ALJ: Again, Counsel, I would ask that a little civility be employed here.
Respondent: I would ask for some civility and some professionalism in terms of the rules of evidence. In some courts they do not consider hearsay as even being evidence unless it is an exception. So when we're talking about the relaxation of evidence, if it's not even evidence, how can you relax it?
Respondent: May I show a continuing objection to all this hearsay?
ALJ: You've already stated that -
Respondent: And you can make your continuing ruling to anything that your fellow employee puts into evidence.
ALJ: Counsel, I've already noted your continuing objection to any hearsay.
Respondent: I'd be embarrassed to have to take such jobs.
Respondent: [after the ALJ asked Respondent not to mutter sarcastic comments on the record)] Sorry you're so --- sensitive.
[after a few lines of testimony]
ALJ: For the record, the Counsel is continuing to make objections within my - side comments to -
Respondent: I talk to my client in a very low tone of voice. And I simply said that if you're so sensitive, maybe she should be my - maybe you should be my client.
Respondent: [objecting to a report being entered in evidence] It's rampant hearsay. It's like the State's Attorney putting his investigative file into evidence. But far be it from me to say what the law should be after a quarter of a century of practicing.
Respondent: [after the ALJ asks Respondent to state his position for the record regarding an exhibit] Obviously, you're an advocate and adversary to my position in everything that's done here with regard to rules of evidence and your own rules. I would offer as evidence - and I want a copy this before I leave here because I don't want it suddenly lost by some administrative agency. (Tr. 138)
Respondent: [objecting to admission of evidence] . . . Most of the material in there is irrelevant to a determination that credible evidence exists to support an indicated finding. That is not credible evidence in any court in the United States. If a prosecutor, which is what we have here, can simply take his entire investigation file, mark it as an exhibit, hand it to the judge and say I offer this in evidence, then we may as well throw the constitution out the window because that's what we've been doing here today anyway.
ALJ: That's my only ruling, counsel.
Respondent: I don't see anything in the rules that says I have to wait until after that and reinstate proceedings to request those records.
ALJ: That's my ruling, Counsel.
Respondent Why did I know it would be.
[After DCFS rests its case]
ALJ: Do you have any evidence you wish to present at this time?
Respondent: Maybe I'll have my client write out a statement and hand it to you the way we do things here. So we need a recess so I can do that.
ALJ: Counsel, if you want her to testify, she can testify.
Respondent: I'm not going to have her testify because that's not appropriate here. We don't have direct evidence here. We only have things that are in writing. So we'll go out and write up a statement and I'll hand it to you. We want to be equal to the state.
[after the ALJ repeatedly asks Respondent not to discuss the case with his client while the ALJ is in the room and opposing counsel is not]
ALJ: I've asked you to leave the room and not communicate with me out loud in this room.
Respondent: You can say whatever you want. You can do whatever you want.
ALJ: I know I can. And you can appeal me.
R: And, obviously you need to go find a job in the private sector in the real world instead of bothering people with this kind of stuff as a public -
[after ALJ states on record that Respondent was making disparaging remarks about the hearing without opposing counsel present, and stating that she asked Respondent not to talk in her presence without opposing counsel present.]
Respondent: Now, since you've made that statement and we're still on the record here. I was speaking with my client at the end of this table when you walked in. And I did and have made statements disparaging of this hearing because it's as much of a kangaroo court as you could ever possibly have. There are no proper ruls of evidence. We have a hearing officer who pretends to be impartial but has already told me as we were leaving the room what she's going to do in the case and that I'll have to appeal it.
[after the ALJ admonishes Respondent not to testify about his personal involvement at the police station]
Respondent: I don't know that we have any rules of evidence here because they've been thrown out the window.
Respondent: This is a joke. It is. I mean I'll say that on the record on that tape. This is no fair hearing, which is the language that the Department puts on the letter that went out to my client. This is no more a fair hearing than they had in Russia when they were operating under the Soviet system. This is a kangaroo court by definition. It is a court where the Department hires the hearing officer, who's supposedly independent but relies for her paycheck upon the same entity, where evidence is admitted that is hearsay and in some cases double hearsay, and when then the hearing officer pretends she can rule on that basis.
I - I don't pretend that this can be a fair hearing. I don't pretend that a fair decision can be made based upon the statements that have been made by this hearing officer. So I'm wasting my breath. I mean this - this had been a situation where from the first objection I have made, which in my opinion have been very proper and substantive objections, I've been treated with nothing but contempt and smirks.
7. Administrative law judges employed by DCFS do not have the power to sanction an attorney for their conduct during a hearing.
8. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
- making a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer, in violation of Rule 8.2 (a) of the Illinois Rules of Professional Conduct;
- using means that have no substantial purpose other than to embarrass, delay, or burden a third person in violation of Rule 4.4 of the Illinois Rules of Professional Conduct;
- engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
- engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.
(Improper statements to opposing counsel - Glenwood Resort Owners Association litigation)
1. In 2002, Respondent represented Glenwood Resort Owners Association ("GROA") in various matters, including Maduff and Maduff v. GROA, Cook County case no. 02 MI 152655, in which the law firm of Maduff and Maduff was seeking a judgment regarding attorney's fees allegedly owed by GROA.
2. Attorney Robert G. Markoff ("Markoff"), of Baker, Miller, Markoff and Krasny, LLC, represented the plaintiff law firm in the litigation.
3. On March 30, 2004, the case transferred to mandatory arbitration.
4. On August 3, 2004, the circuit clerk sent notice of the mandatory arbitration date to the parties, however, Respondent claims he did not receive a copy of the notice.
5. On September 17, 2004, Markoff sent Respondent disclosures in preparation for the arbitration pursuant to Supreme Court Rule 90(c).
6. On October 18, 2004, Respondent did not attend the arbitration, and on October 18, 2004, the arbitrator entered in award in favor of plaintiff Maduff and Maduff in the amount of $13,636.30. The arbitration award stated that it was placed on judgment on award or assignment call on December 8, 2004 at 9:00 a.m. in Room 1501 of the Richard J. Daley Center.
7. On October 19, 2004, the circuit clerk sent a notice of the October 18, 2004 arbitration award, including the written notice of the December 8, 2004 hearing to enter a judgment on the award, to the parties.
8. On December 8, 2004, the court entered judgment based on the arbitrator's award, in favor of Maduff and Maduff and against GROA in case no. 02 M1 152655, in the amount of $13,636.30.
9. On December 27, 2004, Respondent filed a motion to vacate the default order entered on December 8, 2004, stating that he had not received notice of the underlying arbitration hearing.
10. On February 1, 2005, Respondent and Markoff appeared before the Court in case no. 02 MI 152655. The Court agreed to hear Respondent's motion to vacate the judgment on April 6, 2005, and gave Respondent additional time to file information in support of his motion. Respondent requested a ruling immediately, and the Court reaffirmed it would conduct a hearing on April 6, 2005.
11. Markoff began to prepare the order continuing the case to April 6, 2005, and Respondent followed Markoff around the courtroom while stating why he (Respondent) was unhappy with the ruling. Respondent complained that he was going to have to drive up to Cook County again for a hearing on his motion. Respondent stated to Markoff at least twice that he (Respondent) had not received notice of the arbitration, and that he believed Markoff was aware of that fact. Respondent stated to Markoff that Markoff's firm was unethical.
12. Respondent then stated in an angry tone to Markoff: "You must be from a Jewish firm."
13. Markoff looked at Respondent with surprise and Respondent stated in an angry tone "You heard me right."
14. By reason of the conduct described above, Respondent has engaged in the following misconduct:
using means that have no substantial purpose other than to embarrass, delay, or burden a third person in violation of Rule 4.4 of the Illinois Rules of Professional Conduct;
conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Illinois Supreme Court Rule 770.
WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
|Counsel for the
Denise Church, Counsel
Attorney Registration and
1 North Old Capitol Plaza, Suite #333
Springfield, Illinois 62701
Telephone: (217) 522-6838