Filed May 12, 2010
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
KELLY MAUREEN MURAWSKI,
Commission No. 09 CH 2
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on November 30, 2009, before a panel consisting of Champ W. Davis, Jr., Chair, Leonard J. Schrager and Frederich J. Bingham. Melissa A. Smart appeared as Counsel for the Administrator. Samuel J. Manella appeared as Counsel for Respondent. Respondent was also present.
On January 9, 2009, the Administrator filed a Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged Respondent used information gained in the representation of a client to the disadvantage of that client. Respondent filed an Answer to the Complaint on February 18, 2009, in which she admitted most of the factual allegations and denied all the allegations of misconduct.
The Administrator presented the testimony of Matthew Brennock, Sally Brennock, Timothy Shelven and Respondent and Exhibits 1-6, 8. Respondent presented her testimony, the testimony of Ann Marie Swatos and Chablis Tipton and Exhibit 1. The testimony of the
witnesses, the Exhibits, and the admitted allegations of the Complaint established the following facts.
In July 2006, Respondent began an intimate relationship with Matthew Brennock. On November 5, 2007, Respondent agreed to represent Matthew in his efforts to obtain an order of protection against Chablis Tipton whom Matthew claimed was harassing him. On November 9, 2007, Respondent, on behalf of Matthew, obtained an emergency order of protection against Ms. Tipton.
On November 30, 2007, there was a court hearing on an extension of the order of protection against Ms. Tipton. Respondent appeared at the court hearing on behalf of Matthew, who was also present, and Ms. Tipton appeared pro se. While before the court, Ms. Tipton asserted that the order of protection was unjustified because she was not harassing Matthew and that she and Matthew were involved in an intimate relationship. Ms. Tipton produced various emails and documents to prove that she and Matthew were involved in an intimate relationship and that she was not harassing Matthew. Respondent asked if she could see Ms. Tipton's documents.
After the judge called for a recess, Respondent told Matthew to sit down and wait in the courtroom and she asked Ms. Tipton to follow her out into the hallway. Matthew followed Respondent and Ms. Tipton out into the hallway and down the stairs. Respondent sat down with Ms. Tipton and reviewed the documents. Matthew informed Respondent that she was discharged as his attorney while she was reviewing Ms. Tipton's documents. Respondent did not give Matthew Ms. Tipton's documents. When Matthew's case was called again, Respondent made a motion to withdraw from representing Matthew and Respondent's motion was granted.
In the afternoon of November 30, 2007, after the court proceedings in Matthew's case were concluded, Respondent called Matthew's wife, Sally Brennock. Respondent spoke with Sally and told her about Respondent's relationship with Matthew. Respondent also told Sally she had represented Matthew that day in an order of protection matter and that during the course of the proceedings, Respondent learned that Matthew had also been involved in an intimate relationship with a woman named Chablis Tipton, and that Respondent had seen various emails and documents which proved that Matthew and Ms. Tipton were involved in an intimate relationship.
Matthew did not authorize Respondent to disclose any information related to his order of protection matter to Sally or any other individual. On December 17, 2007, Sally filed a Petition for Dissolution of Marriage against Matthew.
Matthew met Respondent at a health club in Oak Park, Illinois in the summer of 2006. (Tr. 26). At that time Matthew's business was collapsing and his marriage was under a lot of stress. (Tr. 26-27). Respondent was also married, but was unhappy in her marriage. (Tr. 27). Matthew and Respondent became friends and over time their relationship became sexual. (Tr. 26). Matthew's sexual relationship with Respondent started in the fall of 2006 and concluded in the late spring of 2007. (Tr. 111-12).
Matthew met Chablis Tipton in late November 2006 on Match.com on the internet. (Tr. 29-30). Matthew listed his marital status as single on that dating website because he thought it would be easier to meet someone if he was single. (Tr. 88). Matthew first met Ms. Tipton in person in December 2006 and they began a sexual relationship which lasted until the late spring of 2007. (Tr. 30, 88-89, 112). Matthew discussed marriage with Ms. Tipton and told her that he
could imagine marrying her. (Tr. 30). Respondent testified that he may have proposed marriage in writing to Ms. Tipton, but that he never proposed to her in person. (Tr. 31).
Ms. Tipton moved to Baltimore two months after their relationship began. (Tr. 31). Matthew went to Baltimore to visit Ms. Tipton and tell her that he could not continue their relationship any longer. (Tr. 32). Ms. Tipton moved back to Chicago in the spring of 2007. (Tr. 31-32). Matthew did not tell Ms. Tipton he was married until the spring of 2007, prior to that he told her he was divorced. (Tr. 89). Ms. Tipton did not know Matthew was having an affair with Respondent and Respondent did not know Matthew was having an affair with Ms. Tipton. (Tr. 89).
After she moved back to Chicago Ms. Tipton sent Matthew a series of text messages regarding his wife and children. (Tr. 31-32). One text message Ms. Tipton sent Matthew stated that she knew what his wife and children looked like because she was sitting next to them in a car. (Tr. 32). Matthew became very concerned about Ms. Tipton's behavior after that. (Tr. 31-32).
In July 2007, Ms. Tipton came to Matthew's home. (Tr. 90). Matthew did not know Ms. Tipton was coming to his home and his son answered the door. (Tr. 90). Ms. Tipton did not have any interaction with Matthew's wife, Sally, but Sally asked Matthew who Ms. Tipton was. (Tr. 90-91). Matthew told Sally that Ms. Tipton was a friend that he knew through work. (Tr. 91).
Matthew went to the Oak Park Police on November 8, 2007, because he was afraid of Ms. Tipton's behavior and what she might do. (Tr. 32-33; Adm. Ex. 1). A few days prior to November 8, 2007, Ms. Tipton told Matthew that she was going to tell his wife about their affair. However, Matthew testified that he did not consider going to the police about Ms. Tipton's
conduct until Ms. Tipton threatened to approach his children and tell them that Matthew was a homosexual. (Tr. 32-33, 91).
Matthew told the police that he had an affair with Ms. Tipton, that the relationship was over, that Ms. Tipton was upset and sending him threatening emails and text messages and that she was calling and harassing himself and his family. (Tr. 34). The police officer called Ms. Tipton at her workplace to tell her to stop contacting Matthew. (Tr. 34). Ms. Tipton made it clear to the police officer that she had no intention of leaving Matthew or his family alone. (Tr. 34-35). The police officer told Matthew he thought Ms. Tipton was crazy and wanted to have her arrested, but Matthew asked him not to arrest her because he did not want to interfere with her professional life. (Tr. 35).
The police officer then called a detective from the Schaumburg Police Department and had the detective show up at Ms. Tipton's place of work. (Tr. 35). The police officer called Ms. Tipton back and told her to approach a window so that she could see the detective sitting in the squad car. (Tr. 35). The police officer told Ms. Tipton that if she did not leave Matthew alone he would have her arrested. (Tr. 34). Ms. Tipton then agreed to leave Matthew alone. (Tr. 35). That evening Ms. Tipton called Matthew's house and hung up the phone several times. (Tr. 36).
Matthew told Respondent that he needed to file an order of protection because he was being harassed, but he did not go into detail about the situation with Ms. Tipton because he did not want Respondent to know that he had sexual relations with Ms. Tipton. (Tr. 36-37, 94-95). Matthew also told Respondent that the police advised him he did not need legal counsel to file an order of protection. (Tr. 37). Respondent told him having legal representation would expedite the whole process. (Tr. 37). Matthew and Respondent agreed that she would represent Matthew in the order of protection matter. (Tr. 38). There was no fee agreement between them. (Tr. 38).
On November 9, 2007, Respondent prepared the paperwork for the order of protection while Matthew was present. (Tr. 41). Respondent asked Matthew if he had a physical relationship with Ms. Tipton while she was filling out the paperwork. (Tr. 42). Matthew told Respondent that he did not want to answer that and Respondent told him that she could not fill out the paperwork if he was not being completely truthful and forthcoming with her. (Tr. 42).
Matthew then told Respondent that he had a "physical relationship" with Ms. Tipton. (Tr. 42). Matthew did not further elaborate on what "physical relationship" meant, but he considered it to mean sexual contact. (Tr. 96). Matthew was trying to be vague and did not have a specific discussion with Respondent about having sexual contact with Ms. Tipton. (Tr. 97). Respondent checked the box on the order of protection paperwork which indicated that Matthew had "a dating or engagement relationship" with Ms. Tipton. (Tr. 42-43; Adm. Ex. 2 at 2).
After Respondent completed the paperwork for the order of protection Matthew and Respondent drove together from the courthouse to their places of employment downtown. (Tr. 43). They did not discuss any kind of sexual relationship that Matthew had with Ms. Tipton during the car ride, but Respondent was clearly upset with Matthew for having some kind of relationship with Ms. Tipton and was blaring music and driving erratically. (Tr. 43-44, 98). Respondent told Matthew she should have never trusted him, that he was "like every other guy," a "scum bag" and a liar. (Tr. 44, 97).
Respondent also stated during the car ride that she knew their relationship was at a dead end and that she had moved on from her relationship with him. (Tr. 100). Matthew knew this was true because she had asked him to help her write profiles for online dating sites and she had asked Matthew's sister to set her up on dates. (Tr. 101). Matthew saw Respondent on the evening of November 9, 2007, and Respondent did not act upset or angry. (Tr. 99).
Matthew was informed by Respondent that Ms. Tipton received the order of protection and that the order would expire in 30 days at which point Matthew would have to go back to court to file for an extension which would last several years. (Tr. 44). Matthew planned to represent himself with respect to the extension of the order of protection. (Tr. 44). He informed Respondent that he had no intention of having her represent him a second time, because he knew she was upset about the situation with Ms. Tipton. (Tr. 44-45).
The morning Matthew had to go back to court to file for an extension of the order of protection Respondent saw him at the health club and told him that she really wanted to represent him. (Tr. 48-49). Respondent also stated that Matthew's chance of getting the order of protection extended and not having to spend an entire day in court would be greatly improved if she represented him. (Tr. 49). Respondent asked Matthew three or four times that morning if she could represent him and he declined each time. (Tr. 49). Finally, as Matthew was leaving the health club Respondent insisted that she was going to represent him and Matthew agreed. (Tr. 49).
Matthew met Respondent in the lobby of the courthouse after he went through security and the two of them sat in the back of the courtroom. (Tr. 52). Respondent saw Ms. Tipton in the courtroom and asked Matthew if that was the "pig" he had been sleeping with. (Tr. 52). Respondent also said that Ms. Tipton was "fat and old" and that she could not believe Matthew would "fuck" her. (Tr. 52). Matthew told Respondent that if she was going to make it personal then she needed to leave and he would represent himself. (Tr. 52). Respondent then began to scribble some notes on a piece of paper. (Tr. 52). Respondent asked Matthew if he had slept with Ms. Tipton. (Tr. 104). One of the other notes Respondent wrote was "I am going to tell her I am your new girlfriend. Ha-ha." (Tr. 54; Adm. Ex. 3).
When Matthew's case was called he, Respondent and Ms. Tipton approached the bench. (Tr. 54-55). The judge asked Ms. Tipton if she had evidence to show why the order of protection should not be extended and Ms. Tipton said she had a series of emails and photocopied text messages proving that Matthew had proposed marriage to her and was guilty of breach of contract. (Tr. 55). The judge asked Respondent if she and her client had any evidence to show why the extension should be granted. (Tr. 55-56). Respondent asked for and was granted a brief recess. (Tr. 55-56). Matthew had no documents with him because earlier that day Respondent told him the only thing he needed for the proceeding was the paperwork from the original order of protection and that she would bring that. (Tr. 54-55).
Respondent asked Ms. Tipton if she could see the documents Ms. Tipton brought with her. (Tr. 56). Respondent and Ms. Tipton walked out of the courtroom together and Respondent told Matthew to stay in the courtroom. (Tr. 58). Matthew ignored Respondent's instructions and as he followed Respondent and Ms. Tipton he told Respondent she was dismissed as his counsel. (Tr. 58). Ms. Tipton handed Respondent all of the documents she had in her possession and Respondent looked through them. (Tr. 58). Matthew again told Respondent that she was dismissed as his counsel and needed to leave. (Tr. 58). Matthew did not ask for the documents. (Tr. 58).
Respondent and Ms. Tipton went downstairs in the courthouse and Matthew followed them. (Tr. 59). Matthew went up to where Respondent and Ms. Tipton were seated and told Respondent she needed "to give the documents back and to leave." (Tr. 59). Respondent said to him, "You are a fucking scum bag. You are a fucking piece of shit. But you're going to fucking pay for this." (Tr. 59).
Respondent then stormed past Matthew with the documents in her possession and went back up the stairs towards the courtroom. (Tr. 60). Matthew followed Respondent and repeatedly told her to leave. (Tr. 60). Matthew also asked Respondent to give him his paperwork back several times. (Tr. 60-61). Respondent stopped halfway up the stairs and said to Matthew, "You're fucking dead. I'm going to your wife. You're fucking dead." (Tr. 60).
Matthew dismissed Respondent because of the emotional nature of the situation and because he felt that she was going to jeopardize his ability to get the order of protection extended. (Tr. 60). It was important to Matthew to get the order of protection extended because he did not think Ms. Tipton was acting rationally and he was concerned about what she might do to his children. (Tr. 60).
Once they were back in the courtroom Respondent grabbed her purse and coat from the back of the courtroom and went up to the front of the courtroom where she sat at the attorney's table. (Tr. 61). Matthew was panicked that Respondent was going to jeopardize the order of protection and he was angry because he did not know what she was doing. (Tr. 61). Matthew went to the front of the courtroom to tell Respondent again that she was dismissed as his attorney and that he wanted his documents and paperwork back. (Tr. 61).
When he went up to her Matthew saw that Respondent had Ms. Tipton's documents as well as his paperwork in her lap and he reached over to get the documents, but Respondent blocked him with her arm. (Tr. 62). A bailiff told Matthew to be seated immediately and Matthew went back to his seat. (Tr. 62). Matthew was unable to get any documents. (Tr. 62). The document Matthew wanted back from Respondent was the original order of protection which consisted of two or three sheets of paper. (Tr. 105). Matthew now knows that document was available in the court file, but he did not know that then. (T. 105).
Respondent got up from her seat and had a discussion with the bailiff. (Tr. 62-63). Shortly after Respondent's conversation with the bailiff a sheriff's deputy entered the courtroom and asked Matthew to step outside, which he did. (Tr. 63). Matthew was told by the deputy that his counsel was afraid or concerned about him and wanted a warning given to him. (Tr. 63). He was also told that if he approached her or tried to speak to her again on the grounds of the courthouse he would be arrested. (Tr. 63).
Shortly after Matthew returned to the courtroom Respondent withdrew from Matthew's case. (Tr. 63). Respondent threw the order related to her withdrawal from his case in Matthew's direction and exited the courtroom. (Tr. 64; Adm. Ex. 5). Respondent and Ms. Tipton remained in the courtroom and after approximately a half hour Matthew left the courtroom to call one of his partners at the office to let him know that he was not going to be in that day. (Tr. 64-65). While he was making the phone call Matthew saw Respondent approaching the courtroom and then she veered towards Matthew stating, "I hope you like jail, asshole" before entering the courtroom. (Tr. 65).
When Matthew re-entered the courtroom he saw Respondent speaking to the bailiff. (Tr. 65). The sheriff's deputies approached Matthew and asked him to step outside. (Tr. 65). Matthew was arrested for battery and was led away from the courtroom in handcuffs. (Tr. 66). Matthew was taken to jail and sat in a cell for 12 hours. (Tr. 66). When Matthew was released from jail he called his wife and she told him she had talked to Respondent and was divorcing him immediately. (Tr. 67). Matthew has only had a few brief conversations with Sally since then, they have absolutely no contact, no relationship and very little communication. (Tr. 67).
Respondent was aware that Matthew's son was hospitalized for anorexia from late July 2007 through early September 2007 and was still recovering in November 2007. (Tr. 69, 110).
Respondent approached Matthew's children, his friends and his business partner about what Matthew had done. (Tr. 70). Respondent's actions had a lasting and permanent effect on Matthew's relationship with his wife and his marriage. (Tr. 70). Matthew stated that his behavior also played a role and that he betrayed his wife as well as Respondent's spouse during his relationship with Respondent. (Tr. 71). Matthew further admitted that his relationship with Ms. Tipton was destructive, selfish and shameful. (Tr. 71).
Matthew feels that the situation with Respondent caused him to be used and abused by the justice system. (Tr. 74). Matthew was charged with second degree felony battery and when the case went to trial it was "thrown out" of court. (Tr. 75). Matthew's trust in attorneys has been altered because he feels more vulnerable now. (Tr. 86). When Matthew was asked on cross-examination what confidences or secrets he told Respondent that she related to others, Matthew replied that he did not know how to answer that question. (Tr. 109).
Respondent is 37 years old and supports herself financially. (Tr. 295). Respondent was licensed to practice law in Illinois in 1997 and since that time she has had 15 different jobs. (Tr. 154-56). Respondent is currently employed in Naperville, Illinois as an in-house attorney for a financial services company. (Tr. 154, 251, 285). Her boss is aware of the pending ARDC matter against her. (Tr. 250-51).
Respondent met Matthew at a health club in Oak Park, Illinois and she began an intimate relationship with him. (Tr. 156). Respondent engaged in sexual intercourse with Matthew at different periods of time. (Tr. 156). Respondent was married and she knew Matthew was married, but towards the end of her relationship with Matthew she was separated from her
husband. (Tr. 156-57). Respondent and Matthew were really good friends and they worked out and had lunch together. (Tr. 157).
Respondent and Matthew's physical relationship began in August 2006 and lasted until early November 2007. (Tr. 157). Respondent did not think Matthew was seeing anyone else during that time besides her and his wife. (Tr. 157-58). If she had known Matthew was seeing someone else she would have ended the relationship. (Tr. 158).
Respondent agreed to represent Matthew in regards to the order of protection he filed against Ms. Tipton. (Tr. 158). Matthew told Respondent that he went to the police and was concerned about his children's safety. (Tr. 158-59). Respondent never intended to receive any money for representing Matthew with respect to the order of protection. (Tr. 159).
Respondent went to court with Matthew on November 9, 2007, to file the original order of protection. (Tr. 159). Respondent filled out the paperwork for the order of protection and checked the box that indicated Matthew had a dating or engagement relationship with Ms. Tipton. (Tr. 160; Adm. Ex. 2 at 2). Respondent checked that box because Matthew told Respondent that he and Ms. Tipton had a friendship, but that Ms. Tipton wanted to be more than just friends. (Tr. 288). Matthew never told Respondent he had engaged in a sexual relationship with Ms. Tipton and Respondent did not suspect that he had. (Tr. 288).
Respondent drove downtown with Matthew on November 9, 2007, but they did not fight about what happened at court that day. (Tr. 289). Respondent regularly saw Matthew at the gym between November 9, 2007 and November 30, 2007, and there were no bad feelings or ill will between them at that time. (Tr. 289-90).
Respondent went to court with Matthew on November 30, 2007, to represent him concerning the extension of the order of protection. (Tr. 159-60). Respondent testified that if
she had known or suspected Matthew had engaged in a sexual relationship with Ms. Tipton she would not have gone back to court with him on November 30, 2007, because there was a conflict of interest and she would not want to jeopardize her law license. (Tr. 288-89). Respondent also would not have wanted to have any type of contact with Matthew if she had known what kind of person he really was. (Tr. 289). Respondent had feelings for Matthew and was open to marrying him. (Tr. 289).
Respondent drove Matthew to court on the morning of November 30, 2007, and almost immediately upon sitting down in the courtroom she noticed a woman and asked Matthew if the woman was Ms. Tipton. (Tr. 162). Respondent did not say to Matthew, "You slept with her. And if you slept with her, you are a fucking dead man." (Tr. 162). Matthew did tell Respondent that if she could not represent him professionally he would represent himself. (Tr. 163-64). Respondent testified that she did not remember whether she asked Matthew for evidence of the harassment by Ms. Tipton and testified she did not ask him to bring his phone records with him to court. (Tr. 160-62). Respondent was aware that Matthew did not have any documents with him. (Tr. 164). It was very crowded in the courtroom that day. (Tr. 292).
When the case was called and Respondent, Matthew and Ms. Tipton stepped up before the judge, Ms. Tipton immediately started talking about her belief that the matter was not valid. (Tr. 164-65). Ms. Tipton stated to the judge in open court that she was involved in an intimate relationship with Matthew and that he had proposed marriage to her. (Tr. 165-66). Ms. Tipton had a folder of documents with her which included copies of text messages that showed Mathew had proposed marriage to her. (Tr. 165-66, 168-69; Adm. Ex. 4). Respondent could see the documents Ms. Tipton was referencing, but she could not read most of them while they were
before the judge. (Tr. 168-171). Respondent was able to see a copy of a text message from Matthew proposing marriage to Ms. Tipton. (Tr. 171-73).
When Ms. Tipton made those statements in court it was the first time Respondent learned that Matthew and Ms. Tipton had engaged in a sexual relationship and that he had proposed marriage to her. (Tr. 166-67, 290). Respondent was very surprised and flustered, but she thought that Ms. Tipton's statements might not be true. (Tr. 291). Respondent turned to Matthew and asked him if he had any paperwork with him. (Tr. 167). Respondent did not know why she asked him that because she knew that Matthew did not have any paperwork. (Tr. 167-68). The judge granted Respondent a recess to review the documents with Ms. Tipton and Respondent and Ms. Tipton walked out of the courtroom together and Matthew stormed out after them. (Tr. 173-74). Respondent told Matthew to wait upstairs, but he followed her and Ms. Tipton. (Tr. 173).
Respondent asked Ms. Tipton what type of documents she had to prove Matthew's restraining order against her was not valid. (Tr. 175). Respondent looked through the documents with Ms. Tipton and read and saw the contents of them. (Tr. 175). Respondent characterized them as boyfriend-girlfriend type of emails which indicated Ms. Tipton was the love of Matthew's life. (Tr. 175-77).
When Matthew came downstairs he was visibly upset. (Tr. 177). Respondent, Matthew and Ms. Tipton were downstairs together for approximately five minutes and during that time Matthew asked Respondent to withdraw as his counsel. (Tr. 177-78). Matthew did not ask Respondent to return any documents to him. (Tr. 178-79). Respondent went back upstairs to the courtroom and Matthew was following her. (Tr. 179). Respondent did not tell Matthew that he
was dead. (Tr. 179). Respondent went into the courtroom and told the bailiff that she needed to withdraw. (Tr. 179-80).
After she withdrew as Matthew's counsel she tried to give Matthew a copy of the order, but he would not look at her and it fell to the floor. (Tr. 209). Respondent then went to the back of the courtroom and told Ms. Tipton that she had withdrawn from the case and that she was going to be escorted to her car because she was concerned Matthew was going to try to do something to her. (Tr. 209). Matthew had never hurt Respondent before, but Respondent knew Matthew had anger issues and she was afraid because he was visibly upset. (Tr. 212-15). Respondent asked Ms. Tipton if she also wanted to be escorted to her car and Ms. Tipton declined. (Tr. 209). Ms. Tipton then gave Respondent a folder of the documents she had brought to court with her. (Tr. 187-89, 210).
Respondent sat down at the attorneys' table to wait for her escort to come. (Tr. 210, 213-14). An altercation occurred between Matthew and Respondent when Matthew came up behind Respondent and attempted to grab the documents Ms. Tipton had given her which were sitting in front of Respondent and the documents fell to the floor. (Tr. 181-82, 187-89, 210). Respondent could not recall whether she had already withdrawn from Matthew's case when the altercation between her and Matthew occurred without referring to the response she submitted to the ARDC on December 19, 2007. (Tr. 182-189, 204-05, 212). When she left the courtroom Respondent had a copy of the summons and order of protection Matthew filed against Ms. Tipton and the documents from Ms. Tipton. (Tr. 190).
Respondent was followed out of the courtroom by a bailiff who asked Respondent when she was outside her car if Respondent wanted to press charges against Matthew. (Tr. 190). The bailiff told Respondent it would be more complicated to press charges if she did it later. (Tr.
190-91). Respondent decided to go back into the courthouse and press charges alleging the altercation between her and Matthew was a battery. (Tr. 191). Respondent also filed a request for an order of protection against Matthew. (Tr. 197).
Matthew did not disclose any confidences or secrets to Respondent that she could have disclosed to anyone regarding her representation of him in the order of protection matter. (Tr. 291). Matthew never told Respondent that he was having an affair with Ms. Tipton or that Ms. Tipton had told Matthew that she would tell his wife about their relationship if he did not. (Tr. 291). If Respondent had known the truth she would have never participated in helping Matthew obtain an order of protection against Ms. Tipton. (Tr. 292).
On her way home from court Respondent called her friend Portia Ebert from the health club and told Ms. Ebert that she had been involved with Matthew. (Tr. 215-16). Ms. Ebert then admitted to Respondent for the first time that she had also been involved with Matthew in the early fall of 2007. (Tr. 216-17).
When Respondent returned home from court that day her mother was at her condo and Respondent talked to her mother about whether she should call Matthew's wife, Sally. (Tr. 293). Respondent eventually called Sally later that afternoon. (Tr. 191, 293). Respondent did not reveal any confidences or secrets to Sally and did not tell her anything other than what had transpired in open court. (Tr. 293).
Respondent told Sally about her relationship with Matthew and that Matthew was in jail and was going to be served by a process server. (Tr. 191-94). Respondent told Sally about the affair between Ms. Tipton and Matthew and that Matthew had proposed marriage to Ms. Tipton. (Tr. 192, 197, 299). Respondent also told Sally about the relationship between Ms. Ebert and Matthew. (Tr. 299). Respondent informed Sally that she had emails regarding Respondent's
relationship with Matthew and that Ms. Ebert had emails regarding Ms. Ebert's relationship with Matthew. (Tr. 299-300). Sally wanted to get those emails from Respondent and Ms. Ebert. (Tr. 299-300). Respondent also told Sally she had physical documents related to Ms. Tipton and Matthew's relationship, but that she could not give those to her. (Tr. 196, 300).
After she spoke with Sally Respondent went to a restaurant where she knew Sally and her family were dining to notify Sally that the process server was going to come to her house that evening. (Tr. 193). Respondent came to the restaurant with two friends and her mother and when Sally arrived at the restaurant Respondent approached her and they agreed to meet at McDonald's the next day. (Tr. 193, 196).
Ms. Tipton called Respondent either later in the afternoon on November 30, 2007, or the following day. (Tr. 297). During that conversation Respondent learned that Ms. Tipton had met Matthew on Match.com and that Ms. Tipton told Matthew she was going to tell Sally about their relationship if he did not. (Tr. 297-98).
Respondent testified that she gave the documents Ms. Tipton gave her to her attorney. (Tr. 201-02). Respondent stated at her sworn statement that she shredded the documents from Ms. Tipton, but Respondent did not own a shredder and did not remember if she shredded any information from this case. (Tr. 201-203).
Chablis Tipton resides in Oak Park, Illinois and was married in May 2009. (Tr. 254). She is employed at a medical malpractice insurance company. (Tr. 254). Ms. Tipton met Matthew in December 2006 when he contacted her through a dating website, Match.com. (Tr. 254-55). Ms. Tipton was listed as single on Match.com and Matthew was listed as divorced.
(Tr. 255). Ms. Tipton and Matthew began a sexual relationship which lasted from December 2006 to September 2007. (Tr. 255).
Ms. Tipton accepted a job at a Baltimore insurance company and resided in Baltimore until May 2007. (Tr. 256). Matthew came to visit Ms. Tipton in Baltimore. (Tr. 256). Matthew never ended the relationship with Ms. Tipton while he was visiting her in Baltimore. (Tr. 256).
In June 2007 Ms. Tipton went to Matthew's house because he had offered to accept a fax for her, but she had been unable to reach him. (Tr. 257). Ms. Tipton obtained Matthew's address off the bottom of an e-ticket itinerary Matthew had given her when he came to visit her in Baltimore because Matthew had not given Ms. Tipton his address. (Tr. 272). Matthew had told Ms. Tipton that due to the downturn in the housing market that he and his ex-wife could not sell their house and that they lived together. (Tr. 257). Matthew also told Ms. Tipton that some nights he would sleep on his friend's couch. (Tr. 257). Ms. Tipton believed him. (Tr. 258).
Ms. Tipton did not find out Matthew was married until Matthew sent her an email on November 7, 2007, stating that he had been married during the course of their sexual relationship and that he knew this would surprise her because he had lied to her for the eleven months prior. (Tr. 256, 258-59). Over the next two days Ms. Tipton and Matthew exchanged several phone messages and text messages in which she told Matthew that he needed to tell his wife about their prior relationship or else she would. (Tr. 258-59, 273-74). Over those two days Ms. Tipton text messaged Matthew four or five times, called him on his home phone and his cell phone three to four times and drove slowly by Matthew's house. (Tr. 272-74). Ms. Tipton did not believe that she was harassing Matthew. (Tr. 259).
On November 9, 2007, Matthew obtained an order of protection against her and she was contacted by an officer from the police department. (Tr. 259). The police officer told Ms.
Tipton he would embarrass her and get a police officer to come to her work and serve her with the order of protection. (Tr. 260). Ms. Tipton was served with the order of protection on November 15, 2007. (Tr. 260).
Ms. Tipton thought Matthew had breached a contract with her because he had proposed marriage to her when he was already in a legal contract of marriage with his wife. (Tr. 276-77). Ms. Tipton did not recall ever asking Matthew for an amount of money to remedy the breach of contract. (Tr. 277).
On November 30, 2007, Ms. Tipton took evidence to court which she thought would support her relationship with Matthew including emails, phone records and a text message of a marriage proposal. (Tr. 261). When the case was called Ms. Tipton, Respondent and Matthew stepped up before the judge and Ms. Tipton told the judge that the order of protection was false and listed the documents she had brought to court with her that day and that showed a marriage proposal, a breach of contract and a long relationship. (Tr. 261-63, 279-80). The judge asked Ms. Tipton to show the documents to Respondent during a recess and stated that he would call the case later. (Tr. 263). Ms. Tipton agreed to show the documents to Respondent. (Tr. 264).
Ms. Tipton and Respondent exited the courtroom, went downstairs and sat on a bench together. (Tr. 264). Respondent instructed Matthew to stay back and to not sit with them. (Tr. 264). As Ms. Tipton opened the folder and began to flip through the documents Matthew became visibly angry and upset and came towards her and Respondent to see what was in the folder. (Tr. 265, 275). Ms. Tipton was showing Respondent a copy of a text message from January 27, 2007, which stated, "Will you marry me? I am seriously in love with you so much" and the next message which stated "I will marry you. I will love you for eternity. Being apart is
hell. Come home." (Tr. 275-76, 280). Respondent was surprised to see a marriage proposal. (Tr. 275-76).
Respondent repeatedly told Matthew to stay back and to let her and Ms. Tipton look through the documents. (Tr. 265). Matthew began angrily whispering to Respondent and Ms. Tipton heard him say, "I don't want you as my fucking attorney anymore." (Tr. 265). Respondent said, "Fine" and they went upstairs together. (Tr. 265). Ms. Tipton was stunned and also walked up the stairs, but she was not right behind Respondent and Matthew so she could not hear the remainder of their conversation. (Tr. 266).
Ms. Tipton was still in possession of her documents and she sat down in the back of the courtroom on the left side. (Tr. 266). Matthew sat down in the back of the courtroom on the right side. (Tr. 267). Respondent filled out the order to withdraw from Matthew's case and gave Ms. Tipton a copy of it. (Tr. 266-67). The judge had not called the case for a second time when Respondent gave her a copy of the order. (Tr. 267). Ms. Tipton gave Respondent copies of her documents after Respondent had withdrawn from the case. (Tr. 282-84). The documents were primarily emails between Ms. Tipton and Matthew and Ms. Tipton considered them her confidential documents. (Tr. 284).
When Respondent went back to sit at the attorneys' bench Matthew approached Respondent from behind and grabbed her shoulder and tried to get the paperwork Respondent had and then all the paperwork fell to the ground. (Tr. 268-69). Matthew was arrested and Ms. Tipton was the only party present in the courtroom when the case was called again and the judge dismissed the case. (Tr. 269; Adm. Ex. 6). Ms. Tipton did not speak to Respondent again until Respondent contacted her to be a witness regarding the assault in the courtroom that day. (Tr. 269-70).
In December 2007 Sally called Ms. Tipton on her cell phone and when Ms. Tipton answered the call Sally said, "Oh, I'm sorry, I have the wrong number." (Tr. 270). Ms. Tipton asked Sally who she was and they had a 45 minute conversation. (Tr. 270). Sally said that she was going through Matthew's phone records because the phone bill was outrageous and Ms. Tipton's phone number was listed several times on the phone bill. (Tr. 270). Ms. Tipton and Sally then discussed Ms. Tipton and Matthew's relationship and Ms. Tipton told Sally she would not have pursued a relationship with Matthew if she knew he was married. (Tr. 270). Sally gave Ms. Tipton her work contact information, because she wanted Ms. Tipton to give her the documents Ms. Tipton had which showed her relationship Matthew. (Tr. 270-71). Ms. Tipton dropped the documents off for Sally on December 7, 2007. (Tr. 271).
Sally Brennock first spoke with Respondent on November 30, 2007, when Respondent called her. (Tr. 116). Sally had never spoken to or met Respondent prior to that phone call. (Tr. 116). Respondent told Sally during that phone call that her husband, Matthew, had been arrested and that she was an attorney representing him in obtaining an order of protection against an individual. (Tr. 116-17). Respondent also told Sally that she had a relationship with Matthew. (Tr. 117).
Respondent informed Sally she was concerned about her physical well-being and was going to secure a restraining order against Matthew. (Tr. 118). Respondent said she did not want Sally's children to witness Matthew being served with the papers and asked Sally when they would not be at home. (Tr. 118). Sally told Respondent that she usually took the children to a restaurant on Friday nights and what time she thought she would be there. (Tr. 118). Sally did not recall whether she told Respondent the name of the restaurant she was going to with her
children. (Tr. 118-20). Sally recalled speaking to an ARDC investigator in November 2008, and testified that it was possible she told the investigator that she was surprised when Respondent showed up at the restaurant because she had not told Respondent the name of the restaurant. (Tr. 118-20).
Sally did not recall whether Respondent told her that Matthew was also having an affair with Ms. Tipton during the initial phone call and did not recall telling the ARDC investigator that Respondent did tell her about Ms. Tipton during their first phone call. (Tr. 121). Sally also did not recall whether Respondent told her the length of time the relationship between Ms. Tipton and Matthew occurred. (Tr. 123-24). Sally did not know whether she and Respondent talked about the documents that existed which evidenced the relationship between Ms. Tipton and Matthew. (Tr. 125).
Sally had known about Ms. Tipton for over a year because there were approximately a thousand dollars worth of phone calls to one number on Sally and Matthew's cell phone bills that she had repeatedly asked Matthew about. (Tr. 125, 127). The phone calls took place in the middle of the night and there were hundreds of text messages to the same number. (Tr. 127). Matthew told her that it was a guy that he worked with, but after several months Sally did a reverse phone search and saw that the number was in the name of Chablis Tipton. (Tr. 129).
Ms. Tipton came to Sally's house once, but she did not introduce herself. (Tr. 127). The doorbell rang while the family was having dinner and when Sally answered the door there was a woman there who looked upset and asked to speak to Matthew. (Tr. 128). Sally told Matthew there was someone at the door for him and Matthew went outside and stood next to the woman's car and they were involved in an animated conversation for 15 minutes. (Tr. 128). Sally asked
Matthew who the woman was and Matthew told her it was someone who had tried to rent an extra room in Matthew and his partner's office. (Tr. 128-29).
Sally met Respondent at a McDonald's approximately one day after their first phone conversation. (Tr. 125). During that meeting Respondent gave Sally some email correspondence between Respondent and Matthew and between another individual Matthew was involved with and Matthew. (Tr. 125-26). Sally did not recall if Respondent told her at that meeting that she also had documents relating to the relationship between Ms. Tipton and Matthew. (Tr. 126). Sally eventually filed for divorce from Matthew and now socializes with Respondent. (Tr. 126).
Sally spoke with Ms. Tipton after her initial conversation with Respondent. (Tr. 131). Sally called Ms. Tipton's phone number accidentally and told Ms. Tipton she had the wrong number when Ms. Tipton answered, but Ms. Tipton knew it was her. (Tr. 131-32). Sally had a discussion with Ms. Tipton and Ms. Tipton was very angry and hurt that she had been deceived by Matthew. (Tr. 132). Ms. Tipton delivered the documentation she had regarding her affair with Matthew, which consisted of many graphic emails, to Sally's office. (Tr. 133, 136).
Timothy Shelven has been an investigator with the ARDC for 17 years. (Tr. 141). Mr. Shelven interviewed Sally to determine the nature of her conversations with Respondent. (Tr. 141-42, 144). Sally told Mr. Shelven that when she spoke with Respondent in November 2007 Respondent told her she had an affair with Matthew and that Matthew had an affair with another woman named Chablis Tipton which lasted over a year and a half. (Tr. 142). Sally also told Mr. Shelven Respondent informed her that she had emails and text messages to prove that Matthew had an affair with Ms. Tipton. (Tr. 142).
Evidence in Mitigation
The pending ARDC matter has caused Respondent a lot of mental anguish. (Tr. 287). Respondent has fully cooperated in the ARDC proceedings and has tried to do everything she can to get the matter resolved. (Tr. 293-294). Respondent is sorry she got involved with Matthew, but does not think she did anything wrong. (Tr. 294). Respondent volunteered for three or four hours in the fall of 2009 for a charity called Women Everywhere by doing art projects for an after school program for low-income families. (Tr. 294). Respondent is also assisting a friend with gathering together toiletries to bring to a women's shelter called Sarah's circle and attended a fundraiser for a women's shelter. (Tr. 294-95).
Ann Marie Swatos
Ann Marie Swatos has been a realtor for 11 years. (Tr. 149). Ms. Swatos has known Respondent since 1997. (Tr. 150). They met when they were neighbors and have been friends ever since. (Tr. 150). Ms. Swatos also knows Respondent professionally because she used to refer clients to Respondent when Respondent was a real estate attorney. (Tr. 150). Ms. Swatos still occasionally refers clients to Respondent. (Tr. 150). Ms. Swatos knows real estate agents, real estate lawyers and clients who know Respondent and Respondent's reputation in the community is that she is trustworthy and professional. (Tr. 150-52). Ms. Swatos does not believe Respondent's reputation in the community has been affected by the allegations in the Complaint. (Tr. 151). Respondent is the godmother of one of Ms. Swatos' four children. (Tr. 149, 152-3).
The parties stipulated that if called to testify Nancy Abraham would state that she is employed as an assistant vice-president in the Integrated Marketing Communications Division of the Allstate Insurance Company. (Resp. Ex. 1 at 1). Ms. Abraham is a social friend of Respondent's and used to see Respondent daily at a health club in Oak Park, Illinois. (Resp. Ex. 1 at 1). Ms. Abraham and Respondent also spent time outside of the health club socializing as friends and attended church together. (Resp. Ex. 1 at 1). Recently, Ms. Abraham has seen Respondent less frequently due to schedules and proximity, but they continue to speak on the phone often. (Resp. Ex. 1 at 1). Respondent has a reputation in the community as a loyal, trustworthy friend and has never been observed doing anything inappropriate, unprofessional or unethical. (Resp. Ex. 1 at 1-2). Ms. Abraham viewed the Complaint pending against Respondent on the ARDC website and has no other details or information regarding the subject matter. (Resp. Ex. 1 at 2).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Motion for Directed Finding
At the close of the Administrator's case, Respondent made an oral motion for a directed finding on all charges of misconduct in the Complaint. The Panel granted the motion, in part, with regard to the charges in paragraphs (c) and (d) of the Complaint alleging that Respondent failed to return to the client all papers and property to which the client was entitled to in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct ("the Rules") and that Respondent engaged 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 The Panel denied the motion with regard to the charges of misconduct in paragraphs (a) and (b) of the Complaint.
The ruling on a motion for a directed finding requires a two step process. The Hearing Panel must first determine if the Administrator presented sufficient evidence to establish a prima facie case by presenting at least some evidence on every essential element necessary to prove the alleged misconduct. If the Hearing Panel concludes the Administrator failed to establish a prima facie case, the motion should be granted. If the Hearing Panel determines that the Administrator presented a prima facie case, it must weigh the evidence, including the credibility of the witnesses, to determine whether the Administrator proved the alleged misconduct by clear and convincing evidence. In re Starr, 06 CH 78, M.R. 23127 (Sept. 22, 2009); In re Conner, 04 CH 147, M.R. 21856 (Nov. 20, 2007), citing, Kokinis v. Kotrich, 81 Ill. 2d 151, 407 N.E.2d 43 (1980); Geske v. Geske, 343 Ill. App. 3d 881, 799 N.E.2d 829 (1st Dist. 2003); see also In re Wolf, 07 CH 49, M.R. 23192 (Sept. 22, 2009).
Applying this analysis to the present case, we find Respondent was entitled to a directed finding regarding the charges in paragraphs (c) and (d) of the Complaint. Specifically, the Administrator alleged that Respondent violated Rule 1.16(d) by failing to return documents to Matthew that he requested from Respondent after she withdrew as his attorney and that Respondent violated Supreme Court Rule 770 because Respondent's actions led to ancillary legal issues that burdened the legal system. In the case before us Respondent's motion for directed finding was granted, in part, because the Administrator failed to present a prima facie case showing that Respondent violated Rule 1.16(d) and Supreme Court Rule 770.
The Administrator failed to show that Respondent was in possession of any papers or property that belonged to Matthew when they were in court on November 30, 2007. Matthew testified that he did not bring any documents to court with him that day. The documents Respondent brought to court on November 30, 2007, regarding Matthew's order of protection
were public documents that were available in the court file. The documents Chablis Tipton brought to court with her on November 30, 2007, and gave to Respondent to look over, were Ms. Tipton's own documents and were not the property of Matthew. Accordingly, the evidence did not show that Respondent was in possession of any documents Matthew was entitled to receive after she withdrew from his case.
The Administrator also did not provide evidence to show the ancillary legal issues stemming from the altercation between Respondent and Matthew in court on November 30, 2007, had an adverse affect on the legal system. Further, Respondent's actions with regards to the ancillary legal issues were not alleged in the Complaint. Therefore, we conclude the Administrator failed to provide a prima facie case that Respondent violated Rules 1.16(d) and Supreme Court Rule 770.
Findings on the Remaining Charges of Misconduct in the Complaint
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). "Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, sec. 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, it requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
We find the Administrator failed to prove by clear and convincing evidence that Respondent engaged in either of the remaining charges of misconduct in the Complaint. Specifically, we conclude the evidence was not sufficient to show that Respondent revealed a client confidence or secret of the client known to the lawyer without the client's consent, in violation of Rule 1.6(a) of the Rules or, that having formerly represented Matthew in a matter, that Respondent used information relating to the representation to the disadvantage of Matthew in violation of Rule 1.9(a)(2) of the Rules.
The Rule 1.6(a) Charge
In charging a violation of Rule 1.6(a) the Administrator alleges that Respondent revealed a secret of Matthew's without his consent by calling Matthew's wife and informing her that Matthew had an affair with Ms. Tipton. "Secret" is defined in the Terminology section of the Illinois Rules of Professional Conduct as "information gained in the professional relationship, that the client has requested be held inviolate or the revelation of which would be embarrassing to or would likely be detrimental to the client." The Administrator states that Matthew's affair with Ms. Tipton was clearly information Respondent learned while representing Matthew in court on November 30, 2007, and that the revelation of this information to Matthew's wife was both embarrassing and detrimental to Matthew. Respondent argues that Matthew did not tell Respondent that he had engaged in a sexual relationship with Ms. Tipton and that once Ms. Tipton stated in court during a public proceeding that she had an affair with Matthew, that information was no longer a "secret" that Respondent was prohibited from disclosing.
Matthew admitted that he was intentionally "vague" in describing the nature of his relationship with Ms. Tipton to Respondent prior to the November 30, 2007 court hearing. Matthew also testified that he reluctantly told Respondent on November 9, 2007, that his
relationship with Ms. Tipton was "physical," when Respondent filled out the form for his order of protection against Ms. Tipton and that he did not provide any further information to Respondent about the nature of his relationship with Ms. Tipton. On November 9, 2007, Respondent checked a box on the order of protection paperwork indicating that Matthew had a dating relationship with Ms. Tipton.
Respondent testified that Matthew did not tell her his relationship with Ms. Tipton was "physical." Respondent explained that she checked the dating relationship box on the order of protection form because Respondent told her Ms. Tipton wanted to have a dating relationship with him, but that he did not want to have one with her, which was why he was seeking the order of protection. Respondent testified that she was not aware Matthew had engaged in a sexual relationship with Ms. Tipton until Ms. Tipton described her relationship with Matthew in court on November 30, 2007, and that she was shocked by this information.
We do not find Matthew's testimony or the dating relationship box Respondent checked on the order of protection form sufficient to clearly and convincingly establish that Respondent knew Matthew had engaged in a sexual relationship with Ms. Tipton prior to Ms. Tipton's statements in court on November 30, 2007. We also find Respondent's testimony that she did not know Matthew had engaged in a sexual relationship with Ms. Tipton prior to the November 30, 2007 court hearing credible. In re Smith, 168 Ill. 2d 269, 283, 659 N.E.2d 896 (1995) (the Hearing Board is in the best position to determine the credibility of a witness). This is consistent with the fact that Matthew went to great lengths to hide from Respondent the nature of his relationship with Ms. Tipton.
Accordingly, we conclude that the only information given to Respondent about Matthew's sexual relationship with Ms. Tipton was Ms. Tipton's public statements in court and
the documentation Ms. Tipton brought to court with her regarding her relationship with Respondent. Ms. Tipton's disclosure of her affair with Matthew in open court made it impossible to identify how many individuals became aware of this information and therefore, the "secret" was not only known to Matthew, Ms. Tipton, and Respondent, but "in a legal sense it was known to the whole world." See Ex parte Taylor Coal Co., Inc., 401 So.2d 1, 9 (Ala. 1981) (attorney was found not to have violated the rule prohibiting an attorney from revealing a confidence or secret of his client where the only "confidential" information provided to the attorney by the client was prepared from public documents).
We note the observation in Skokie Gold Standard Liquors v. Joseph, 116 Ill.App.3d 1043, 452 N.E.2d 804, 813 (1st Dist. 1983) that "the client's privilege in confidential information disclosed to his attorney is not nullified by the fact that the circumstances to be disclosed are part of a public record." However, we find this case does not involve information disclosed to Respondent by Matthew, which was additionally available from a public source. In fact, the evidence shows that Matthew made a concerted effort to hide the fact that he had an affair with Ms. Tipton from Respondent and that Respondent only learned of the information in a public forum.
The Administrator argues that the information regarding Matthew's affair with Ms. Tipton was still a "secret" even though it was divulged in open court because it was information Respondent learned while representing Matthew that Matthew did not intend to be shared with others. The Administrator further argues that Respondent breached the trust inherent to the attorney-client relationship by being the person who disclosed Matthew's affair with Ms. Tipton to Sally. The Administrator cites several cases to support his position that this was a "secret" Respondent was precluded from disclosing to anyone. See In re Nelson, 02 CH 12, M.R. 19657
(Nov. 17, 2004). In re Horne, 93 CH 568, M.R. 12936 (May 30, 1997); In re Hardy, 03 SH 104, M.R. 20607 (Jan. 13, 2006); In re Pernick, 94 CH 791, M.R. 10777 (Mar. 27, 1995); In re Hack, 95 CH 707, M.R. 11780 (Jan. 23, 1996); In re Cress, 93 CH 428 (May 17, 1994).
While the information at issue, embarrassing as it was to Matthew, falls within the definition of the type of information deemed "secret" within the Illinois Rules of Professional Conduct, the Rules do not provide that the information remains "secret" forever. None of the cases cited by the Administrator address a situation such as this where the information learned during the representation of the client is disclosed in open court by a third party effectively making it information that has been shared with "the whole world" prior to the attorney's disclosure of the information. We also find it significant that the first time Respondent learned Matthew had an affair with Ms. Tipton was when Ms. Tipton disclosed this fact in open court. Matthew did not provide this information to Respondent prior to the court hearing and admitted that he made efforts to keep it from her. We are unable to conclude Respondent breached Matthew's trust and confidence when she disclosed Matthew's affair with Ms. Tipton to his wife.
We find Respondent used extremely poor judgment by agreeing to represent Respondent in the order of protection matter despite the very personal nature of their relationship and by calling Matthew's wife and informing her of Matthew's affair with Ms. Tipton after the court hearing. However, we find the Administrator failed to meet his burden of proof as to Rule 1.6(a) and recommend that charge be dismissed.
The Rule 1.9(a)(2) Charge
In charging a violation of Rule 1.9(a)(2) the Administrator alleges that by calling Matthew's wife, Sally, and informing her that Matthew had an affair with Ms. Tipton, Respondent used information related to her representation of Matthew to his disadvantage
because that information caused Sally to initiate divorce proceedings against Matthew. Rule 1.9(a)(2) prohibits an attorney from using information related to the representation of a former client to that client's disadvantage unless that information has become generally known. Respondent argues that no violation occurred because the information regarding Matthew's affair with Ms. Tipton had become generally known.
The evidence clearly established that on November 30, 2007, Ms. Tipton stated to the judge during a public proceeding in court that she had engaged in an affair with Matthew and that after learning this information in court Respondent called Matthew's wife and told her that Respondent had engaged in an affair with Ms. Tipton. We find Ms. Tipton's statements during a public proceeding in court about her affair with Matthew caused this information to become generally known. Accordingly, the evidence showed that Respondent did not reveal the information to Matthew's wife about his affair with Ms. Tipton until after the information had become generally known. As a result, we conclude the Administrator failed to meet his burden of proof as to Rule 1.9(a)(2) and recommend that charge be dismissed.
We conclude that the evidence did not establish by clear and convincing proof that the Illinois Rules of Professional Conduct and the Illinois Supreme Court Rule that were charged in the Complaint were in fact violated. Therefore, in accordance with our findings, we recommend that the charges against Respondent be dismissed.
Date Entered: May 12, 2010
|Champ W. Davis, Jr., Chair with Leonard J. Schrager and Frederich J. Bingham concurring|