Filed September 7, 2011
In re Kelly Maureen Murawski
Commission No. 09 CH 2
Synopsis of Review Board Report and Recommendation
Respondent-Appellee Kelly Maureen Murawski was charged with disclosing a secret of the client known to the lawyer without the client's consent, in violation of former Rule 1.6(a) of the Illinois Rules of Professional Conduct; using information gained from having formerly represented a client to the client's disadvantage, in violation of Rule 1.9(a)(2); failing to return all papers and property to a client to which he was entitled, in violation of Rule 1.16(d), and engaging in conduct tending to defeat the administration of justice or bringing the courts or legal profession into disrepute, in violation of Supreme Court Rule 770. The Respondent denied all of the allegations of misconduct.
At the close of the Administrator's case, the Hearing Board granted Respondent's motion for directed finding as to the charges that she had violated Rule 1.16(d) and Supreme Court Rule 770. After hearing all the evidence, the Hearing Board found that the Administrator had failed to prove the remaining charges by clear and convincing evidence, and recommended that the charges against Respondent be dismissed.
The case is before the Review Board on the exceptions of the Administrator, who objects to the Hearing Board's directed finding as to Rule 1.16(d) and its findings that there was not sufficient proof that she revealed a client's secret, in violation of Rule 1.6(a), or that she used information relating to the client's representation to the client's disadvantage, in violation of Rule 1.9(a)(2). Respondent urged the Review Board to uphold the Hearing Board's recommendation.
The Review Board affirmed the Hearing Board's findings and recommends that the charges against Respondent be dismissed.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
KELLY MAUREEN MURAWSKI,
Commission No. 09 CH 2
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter arises from a one-count complaint filed by the Administrator against Respondent-Appellee, Kelly Maureen Murawski. The case is before the Review Board on the exceptions of the Administrator, who objects to the Hearing Board's directed finding that the Respondent failed to return property to the client in violation of Rule 1.16(d), its findings that there was insufficient proof that she revealed a client's confidence or secret, in violation of former Rule 1.6(a), and that she used information relating to the client's representation to the client's disadvantage, in violation of Rule 1.9(a)(2). The Administrator contends that Respondent should be censured.
Matthew Brennock ("Matthew") met Respondent at a health club in the summer of 2006. They became very good friends and ultimately became intimate. Matthew met Chablis Tipton ("Chablis") on Match.com in November 2006. They also had an intimate sexual relationship which, according to Chablis, continued from December 2006 until September 2007.
Matthew's Match.com profile falsely stated that he was divorced. In November 2007, Chablis discovered that Matthew was married. Chablis told him that if he did not tell his
wife about their relationship, she would. She and Matthew exchanged several phone messages and e-mails. Once she went to Matthew's home and threatened to contact his wife and children.
On November 7, 2007, Matthew made a report with the Oak Park Police Department, complaining of Chablis' telephone harassment. According to Matthew, the police officer he spoke to suggested that he get an order of protection against Chablis. After Chablis called his home and hung up numerous times that night, Matthew decided to do so.
Matthew testified that he had not told the Respondent of the nature of his relationship with Chablis, only that he was being harassed and intended to get an order of protection. At this time the relationship between the Respondent and Matthew was no longer intimate. As a friend she offered to represent him, and Matthew agreed.
Respondent accompanied Matthew to court on November 9, 2007 and filled out the necessary paperwork. An ex-parte order of protection was entered, and hearing on an extension of the order was set for November 30, 2007.
When the case was called on November 30th, Respondent approached the bench with Matthew. Chablis appeared pro se. Chablis objected to the extension of the order, explaining that she was not harassing Matthew as she was involved in an intimate relationship with him. Chablis had evidence of their relationship, namely 59 printed pages of e-mails and text messages. These included two marriage proposals from Matthew and his promise to love her for eternity.
Respondent asked the judge for an opportunity to review the documents and the court passed the case to allow her to do so. She and Chablis sat down on a bench outside the courtroom and she began to review the information. Matthew followed them into the hallway
and became enraged as Respondent was examining the e-mails and text messages and dismissed Respondent as his lawyer and told her to give Chablis her documents.
Respondent returned to the courtroom and made a motion to withdraw as Matthew's attorney which the court granted. Because Matthew was upset and Respondent was aware that he had anger issues, she asked the Sheriff for an escort to her car. While she was seated at a table in the courtroom waiting for her escort, Matthew came forward and unsuccessfully attempted to take Chablis' documents from the table. According to Chablis' testimony, in doing so, Matthew grabbed Respondent's shoulder.
When Respondent left the courtroom, she was asked by the Sheriff if she wished to press charges. She decided to file a battery complaint and also to request an order of protection. Matthew was arrested in the courtroom. The judge hearing the motion to extend the order of protection dismissed the case noting that Matthew had been arrested for "assaulting and battering his attorney" and that Matthew was not present to pursue his order of protection.
Later that day, Respondent telephoned Matthew's wife, Sally Brennock ("Sally"). According to Respondent, the purpose of her call was to inform Sally that Matthew was in jail and that he was going to be served with order of protection papers by a process server. She testified that she intended to arrange for service at a time when Matthew's children would not be home. In the course of the telephone call, Respondent also told Sally that she and Chablis had had affairs with Matthew.
Sally testified that she already knew about Chablis. She explained how she learned the information. Matthew's cell phone account was in his wife's name, and for more than a year, his bills had been higher than normal by approximately $300-$400 per month. There were phone calls and hundreds of text messages that were all to the same number. When she
asked her husband about the calls and texts, he told her that they were to a man that he worked with, but the calls all occurred in the middle of the night. After several months of increased bills, Sally did a reverse directory search and discovered that the phone number was listed to Chablis.
Chablis had appeared at Matthew's house once while the family was eating dinner. She looked upset and asked to speak to Matthew. He went outside and as his children looked on, they engaged in an animated conversation that lasted about fifteen minutes.
Sally spoke to Chablis after she spoke to Respondent. Chablis seemed angry or hurt, and felt that she had been deceived. Chablis also delivered "a lot of very graphic e-mails" concerning her interaction with Matthew to Sally at her office.
According to Sally, she and her husband had had problems in their marriage for years. They had discussed divorce before. In December 2007, Sally began divorce proceedings. She testified that she left the marriage because of her concerns for the physical and emotional well-being of herself and her children. According to Sally, it had nothing to do with other people.
At the time of the misconduct alleged in the complaint, Rule 1.16(d) provided in part that "a lawyer shall not withdraw from employment until the lawyer has taken all reasonable steps to avoid foreseeable prejudice to the rights of a client, including . . . delivering all papers and property to which a client is entitled." The Administrator argues that the Respondent violated this rule because she failed to give copies of text messages and e-mails that Chablis had offered to the court in the November 30, 2007 court hearing. At the close of the Administrator's case, the Hearing Board granted the Respondent's motion for directed finding as to this charge.
The Administrator argues that the Hearing Board's judgment was wrong as a matter of law. As explained below, we have concluded it was not.
Ruling on a motion for directed finding is a two-step process. The Hearing Board first was required to consider whether the Administrator had established a prima facie case by providing "some evidence" of every element necessary to prove the charged misconduct. Kokinis v. Kotrich, 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 40 Ill. Dec. 812 (1980). If so, then the Hearing Board was required to weigh the Administrator's evidence to determine whether it constituted clear and convincing proof of the charges. Heller v. Jonathan Investments, Inc., 113 Ill. 2d 60, 71, 495 N.E.2d 589, 99 Ill. Dec. 142 (1986). Generally, the Review Board must affirm the Hearing Board's decision unless it finds that it was against the manifest weight of the evidence meaning an opposite conclusion is apparent or the facts as found appear unreasonable, arbitrary, or not based on the evidence. In re Winthrop, 219 Ill. 2d 526, 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006), Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 212 Ill. Dec. 968 (1995).
The Administrator argues that the Hearing Board's determination was incorrect as a matter of law, because the Respondent's answers to the complaint constituted judicial admissions sufficient to establish his prima facie case. In fact, they do not. The Administrator points to Respondent's acknowledgement that Chablis gave her the documents, that Matthew asked for them and that Respondent never gave him the documents.
While it is true that Chablis gave her documents, that did not happen until after she withdrew. At the time Matthew asked for the documents the Respondent was reviewing them with Chablis. As even Matthew recognized, the documents belonged to Chablis and were documents that she intended to use in the order of protection proceeding.
After the Respondent had been terminated, Chablis allowed the Respondent to leave with copies of the documents. Obviously, Chablis could do whatever she wanted with her documents at that time. The evidence does not show that Matthew ever asked for the documents after the motion to withdraw was granted. The evidence also does not show that he was entitled to them. They certainly did not belong to him. Nor was it ever shown that the documents would have helped him in his order of protection case. To the contrary, the documents supported Chablis' defense against Matthew. Further, as it turned out, the documents were not needed by anyone as the order of protection case did not go forward.
At the time of the alleged misconduct, former Rule 1.6(a) provided that except under circumstances not present here, "a lawyer shall not, during or after termination of the professional relationship with his client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure."1 The Administrator concedes that the Respondent never disclosed a confidence revealed to her by Matthew. Instead, he contends that the Respondent violated the former rule because she revealed Matthew's affair with Chablis to Matthew's wife. He contends that the Respondent should never have told Sally about Matthew's affair with Chablis, arguing the conversation involved a disclosure of a "client secret" which was defined in the former rule as "information gained in a professional relationship which would be embarrassing to or would likely be detrimental to the client."
Closely reviewing the Administrator's proof, Matthew never testified that he was or would be embarrassed by this revelation. The evidence shows that his wife was well aware of it and had confronted him about it before talking to the Respondent.
Matthew did testify that the Respondent's conversation was detrimental to his marriage. However, the record is clear that the Hearing Board for good reason never accepted that testimony. Matthew acknowledged that he was in an unhappy marriage. His wife had already confronted him about his tryst with Chablis. It appears the only one who did not know about it was the Respondent. She learned about it when it became part of the spectacle Matthew created in the order of protection hearing. The whole episode is regrettable, but none of the cases cited by the Administrator convinces us that the Hearing Board was wrong as a matter of law.
Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram Sons, Inc., 116 Ill. App. 3d 1043, 452 N.E.2d 804, 72 Ill. Dec. 551 (1st Dist. 1983), cited by the Administrator, involved a case in which the plaintiff's attorney was disqualified because he was effectively in a law partnership with a lawyer who did the work for the defendant that was an issue in the case. A correlation to this case is not apparent.
Akron Bar Association v. Holder, 102 Ohio St. 3d 307, 810 N.E.2d 426 (2004), involved a lawyer who was representing multiple clients with competing interests and used adverse information about one to the advantage of another. Here, the Respondent was pursuing her own remedies arising out of an assault in a public courtroom. Like any assault victim, she had a right to pursue an order of protection. Disclosing information under these very unique circumstances about Matthew in e-mails given to her after she withdrew from representing him was not restricted by the former rule.2
In re Pernick, 94 CH 791, petition for discipline on consent allowed, M.R. 10777 (Mar. 27, 1995), does not persuade us. Pernick was disciplined on consent. Pernick, after a fee went unpaid, advised INS agents that his client might have an immigration problem. The
consent petition acknowledged that the respondent violated former Rule 1.6(a) in disclosing the information. However, in Pernick, there was no public disclosure like what occurred in this case. Also, the disclosure in Pernick was unrelated to pursuing the unpaid fee. Here, the disclosure was made in the context of arranging service on someone, who as the record demonstrates, was likely to become enraged. Under these unique circumstances, the Hearing Board's findings about the former rule were not wrong as a matter of law.
We are not convinced that there is a legal or factual basis for overturning the Hearing Board's finding that the Administrator did not prove by clear and convincing evidence a violation of Rule 1.6(a). We recommend that this charge be dismissed.
Rule 1.9 is primarily directed at a lawyer using information about a former client in representing another client. Clearly, the Respondent never took on the representation of another client and used information gained from her representation of Matthew, the former client, in the representation of the new client. At the time of the misconduct alleged in this case, Rule 1.9(a)(2) at issue here prohibited a lawyer who formerly represented a client from using "information relating to the representation to the disadvantage of a former client, unless (a) such use is permitted by Rule 1.6; or (b) the information has become generally known." The Hearing Board found that Respondent's disclosure to Sally of Matthew's affair with Chablis did not violate the rule because it was "generally known," noting that Sally knew about it and that those people in the public courtroom also knew about it.
The Administrator argues that the Hearing Board's finding is error as a matter of law. The parties agree that there is no case precedent further defining the term "generally known." The Administrator argues that we should be persuaded that the Hearing Board was
wrong as a matter of law based on comment d to the Restatement (Third) of the Law Governing Lawyers, sec.59. Comment d states that "the fact that information has become known to some others does not deprive it of protection if it has not become generally known in the relevant sector of the public." The Administrator argues that the fact that Chablis and Matthew's affair became "generally known" to those in the courtroom did not mean that it was generally known. However, applying the comment's language, Sally would be the "relevant sector of the public" and she already knew about it.
We are not persuaded that the Hearing Board erred as a matter of law that the Administrator has not proven by clear and convincing evidence that the Respondent violated Rule 1.9(a)(2). Accordingly, we recommend that the charges against Respondent Kelly Maureen Murawski be dismissed.
Date Entered: 7 September 2011
Gordon B. Nash, Jr.
1 In January 2010, Rule 1.6(a) was clarified. The new rule defined client confidentiality in terms of any information learned during an attorney-client relationship.
2 We have not analyzed the new Rule 1.6(a) which became effective in January 2010. See endnote 1.