Filed April 11, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
BRIAN CHRISTOPHER WITTER,
Commission No. 09 CH 50
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on September 14, 2010, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission ("ARDC" or "Commission"), before a Panel of the Hearing Board consisting of Joseph A. Bartholomew, Chair, James L. Farina, and Donald D. Torisky. The Administrator was represented by Marcia T. Wolf. Respondent appeared in person and represented himself pro se.
On September 16, 2010, the Administrator filed a one-count Amended Complaint pursuant to Illinois Supreme Court Rule 753(b) alleging that Respondent engaged in misconduct stemming from his efforts to collect attorney's fees for work he did at his former law firm. Specifically, the Administrator alleged that Respondent asserted frivolous claims, made misrepresentations to tribunals, introduced false evidence, and made false statements regarding the integrity or qualifications of a judge. Respondent filed an answer in which he admitted some of the factual allegations, denied many others, and denied all of the charges of misconduct.
The Administrator presented the testimony of Vincent DiTommaso, Thomas Hoffman, and Respondent as an adverse witness, and introduced documentary Exhibits 1-24 and 32 which were admitted into evidence. Respondent testified on his own behalf but did not call any other witnesses or introduce any documentary evidence.
Mr. DiTommaso is an attorney who has been licensed to practice law since 1982. He is currently with law firm of DiTommaso, Lubin, P.C. ("D-L"), which does mostly complex business, class action, and related litigation. (Tr. 97-98).
Mr. DiTommaso first met Respondent when he came to work for D-L as an independent contractor. D-L entered into a written Agreement for Professional Services with Respondent in December of 2005 ("2005 Agreement"). Respondent prepared that agreement and Mr. DiTommaso negotiated it briefly with him. Although he has not been able to locate a signed copy, Mr. DiTommaso knows that the 2005 Agreement was signed because he signed it himself and so did Respondent. (Tr. 98-100; Adm. Ex. 4 at 11).
Under the terms of the 2005 Agreement, Respondent worked as an independent contractor and was compensated at the rate of $1,000 every week. He was also paid a discretionary bonus after about one year. Although not provided for in the agreement, the firm also gave Respondent a car allowance and compensated him for his travel expenses. Respondent paid the firm rent which was subtracted from his wages. He did not receive health insurance or participate in the firm's pension plan. The original term of the 2005 Agreement was for six months with the right to extend. Both parties also had the right to terminate the agreement for any reason. The firm had no other oral agreements with Respondent. (Tr. 100, 104-07).
Respondent worked on both hourly fee and contingency fee cases for D-L. He was allowed to set his own hours and Mr. DiTommaso testified that he "worked a lot." He came in very early in the morning and worked until the evening. (Tr. 105).
Respondent worked under the terms of the 2005 Agreement until February 1, 2008, when the firm entered in to a second agreement with Respondent ("2008 Agreement"). The main reason for this was that the firm wanted to provide Respondent with an incentive to be more profitable. Although Respondent worked hard and put in a lot of hours, Mr. DiTommaso felt that D-L was still losing money under the 2005 Agreement. The new agreement was intended to give Respondent the ability to earn as much as he wanted based upon the amount of money that he brought into the firm. Respondent was not given any guaranteed salary but received only a percentage of what he brought in. He still worked as an independent contractor and received no benefits. The 2008 Agreement also specified that Respondent had been paid in full for all past services because the firm wanted to make it clear that it did not owe Respondent anything as of the date of this agreement. The 2008 Agreement, which was negotiated over the course of several months, was also for a six-month term with a right to extend. (Tr. 106-08, 112; Adm. Ex. 4 at 13).
One of the matters that Respondent worked on while at D-L was a class action suit entitled Eckhaus v. Nature's Pillows, Inc., et al. ("Eckhaus case"). The case was being litigated in the United Stated District Court for the Eastern District of New York before The Honorable Frederic Block and D-L was one of the firms that served as class counsel. Since a firm cannot be listed as counsel on an appearance form in federal court, Mr. DiTommaso, Mr. Lubin, and Respondent were all listed individually as counsel. There were also several other attorneys from
other firms involved in the matter. The retainer agreement was with Mr. Lubin on behalf of D-L, and Respondent did not have any written agreement with the client. (Tr. 115-17; Adm. Ex. 5).
At the time the 2008 Agreement was entered into, all of the underlying work on the Eckhaus case had been completed and the attorneys were just waiting for preliminary approval of the settlement agreement. The preliminary approval had been pending before the judge for about eight months and they had come to the conclusion that the case was going nowhere. Mr. DiTommaso testified that the 2008 Agreement had no impact on payment in the Eckhaus case because it only applied to matters going forward and that case was already a "done deal" at that point. (Tr. 108, 114, 134).
In March of 2008, Judge Block entered an order granting preliminary approval of the settlement agreement. Although some injunctive relief was granted, there was no monetary relief awarded to the class other than $2,000 which was paid to the class representative. The remainder of the settlement was for attorney's fees and costs in the amount of $298,000 that was awarded to class counsel. Mr. DiTommaso explained that the attorney's fees in these matters are generally agreed to by the parties as part of the settlement and then fee petitions are submitted to substantiate those fees in connection with the request seeking approval. He acknowledged the fee petition in the Eckhaus case was based in "a large part" on work done by Respondent. Once they received the preliminary approval order, they had to go back into court one more time for a fairness hearing and for final approval of the settlement. (Tr. 108, 117, 138-40).
After the preliminary approval of the settlement but before the final settlement order was entered, the firm's relationship with Respondent was terminated. The termination came about because Mr. DiTommaso and Mr. Lubin concluded that even under the new contract, it was going to be impossible to have a business relationship with Respondent. Mr. DiTommaso stated
that only Respondent was terminated, not the 2008 Agreement itself. Respondent's termination had nothing to do with the Eckhaus case or the result obtained. (Tr. 113-14, 117-18, 133-34).
After Respondent's termination, D-L submitted a draft final approval order to Judge Block in the Eckhaus case. That order had been approved by opposing counsel as well as the other attorneys involved in the matter, not including Respondent. Although Respondent was no longer at the firm, he learned about the final approval order and submitted his own draft order to Judge Block. Respondent did not tell the firm that he was going to file this. In his proposed order, Respondent asked Judge Block to award him $105,000 in fees. (Tr. 118-20; Adm. Ex. 2).
Mr. DiTommaso testified that he was outraged that Respondent was seeking fees in the Eckhaus case. He did not believe that Respondent was entitled to any money in the case other than possibly a discretionary bonus based on all of the cases that he worked on during the contract period. Any such bonus was 100 percent discretionary and there was no promise to pay him. Mr. DiTommaso testified that there is no question that Respondent did a lot of the work on the Eckhaus case but he believes that he was paid for every hour by the firm pursuant to their agreement. (Tr. 120-23, 139-40).
Around this same time, Respondent also served documents that were labeled "Notice of Attorney's Lien" in various cases that he worked on while at the firm, including the Eckhaus case. These liens were all served on D-L firm clients, not Respondent's own clients. Respondent was not hired by these clients and did not have written agreements for the payment of fees with any of them. Some of these cases, including Eckhaus, were federal cases and Respondent would have been one of the attorneys of record in those matters. Only the firm would have been the attorney of record in the state court matters, although Respondent would have appeared in some capacity and would likely have signed pleadings. Mr. DiTommaso
reviewed the liens and did not see any that involved cases where Respondent had not worked on the matter at all. (Tr. 114-15, 135-38; Adm. Ex. 4 at 20-37).
D-L subsequently retained counsel and, on June 20, 2008, filed a lawsuit against Respondent in the Circuit Court of DuPage County entitled DiTommaso Lubin, P.C. v. Witter, ("DuPage County case"). That action sought declaratory and injunctive relief related to Respondent's claim for fees in the Eckhaus case and the various attorney's liens that he had served in the other matters. The firm also sent a letter to Judge Block responding to Respondent's motion and advising the judge that D-L had filed suit against Respondent in Illinois regarding the matter. D-L included a copy of the DuPage County complaint. (Tr. 119-20; Adm. Exs. 3, 4).
On June 23, 2008, prior to the entry of the final approval order, a fairness hearing on the Eckhaus settlement was held in front of Judge Block. Mr. DiTommaso was present and so was Respondent. Although he approved the settlement, Judge Block did not make any allocation of $298,000 fee award. The judge specifically stated that this was not his fight and that he was not going to get involved in it. He also indicated that he believed that the fight should be in Illinois. The judge directed that the check for the fees be made out jointly to all three of the named lead counsel, including Respondent, Mr. DiTommaso, and Mr. Lubin. Judge Block entered the final approval order on June 23, 2008 ("Final Approval Order"). The order was subsequently amended on August 27, 2008, to include pages that had been inadvertently omitted from it when it was signed. (Tr. 121-23; Adm. Exs. 5, 6).
Mr. DiTommaso testified that his partner, Mr. Lubin, reported Respondent to the ARDC after receiving Respondent's submission to Judge Block. He believes that this report was based on misrepresentations Respondent made regarding his legal experience and his entitlement to
fees in the Eckhaus case, as well as the liens Respondent filed that were not grounded in fact or law. (Tr. 125-26).
After the Final Approval Order was entered, Mr. DiTommaso received two checks from the attorney for the defendant. One was for $2,000 and was made payable to the class representative and the other was for $298,000 and was made payable to Respondent and D-L. D-L was not able to deposit its check because Respondent refused to endorse it. This led to the firm's involvement in protracted litigation with Respondent that lasted for about eight months and included the DuPage County case and two federal court cases. Respondent filed a removal petition in the Du Page case and also filed a second federal action seeking "to enforce his judgment." Mr. DiTommaso testified that as a result of this litigation, D-L paid $30,000 in attorney's fees to the law firm it hired to handle the case and also expended time in its own office equal to about $100,000. (Tr. 123-25; Adm. Ex. 7).
On December 9, 2008, Mr. DiTommaso was present in court for a hearing in the DuPage County case before The Honorable Thomas C. Dudgeon where the firm was seeking an order forcing Respondent to sign the $298,000 check. He and Respondent both testified at the hearing and Mr. DiTommaso did not notice anything untoward about Judge Dudgeon's conduct toward either of them. He described Respondent's conduct at the hearing as going from "very calm and stable to, in some instances, not so calm and not so stable." He stated that there were times when Respondent was speaking when he was "unintelligible" and "sort of erratic" and other times when he was "completely lucid, brilliant, and . . . not erratic." Respondent testified extensively at the hearing and Mr. DiTommaso believes that Judge Dudgeon gave him great latitude in his testimony. (Tr. 126-27; Adm. Ex. 14).
At the end of the hearing, the judge entered an order granting a preliminary injunction requiring both parties to appear at the law offices of D-L to endorse the $298,000 check. The order further provided that one-half of the proceeds ($149,000) was to be deposited in a separate account in the firm's name and that those funds were not to be transferred, distributed or withdrawn until further order of the court. Respondent was also enjoined from filing any additional attorney's liens with any firm clients and was directed to withdraw any liens that he had previously filed. Mr. DiTommaso believes that the firm had to go back to court and file a petition to force Respondent to obey the order to endorse the check. Before that matter was heard, Respondent gave the authority for his name to be signed. (Tr. 126-28; Adm. Ex. 14).
Mr. DiTommaso testified that there were other attorneys involved in the Eckhaus case whose names were not on the settlement check. D-L was able to pay them after Respondent was ordered to endorse the check and it was allowed to distribute $149,000 of the funds. The remaining $149,000 balance was then put into a separate account in the firm's name. (Tr. 122-23, 128).
D-L eventually settled its dispute with Respondent. Mr. DiTommaso stated that this came about after the situation had gone from "bad to worse" with "litigation on top of more litigation." No matter how many times Respondent was told that he did not have a judgment or a case, he kept going forward. Out of sheer frustration and some anger, Mr. DiTommaso picked up the phone and called Respondent to ask if they could settle the matter. Ultimately, after several conversations, they resolved their differences. Although the settlement was confidential, Mr. DiTommaso confirmed that Respondent received $11,500. All of the cases, including the appeal in the DuPage County case, were then dismissed. (Tr. 128-29).
Mr. DiTommaso acknowledged that Respondent told him during the litigation that he had no issue with him and was not seeking any money from him. Mr. DiTommaso does not think that all of Respondent's actions in the matter were done within the rules because he believes that Respondent knew that he did not have a judgment and was not entitled to any money in the Eckhaus case. (Tr. 130-32).
Respondent received his undergraduate degree from Dartmouth College in 1980 and his law degree from Loyola University Chicago in 1988. He was licensed to practice law in 1988 and was registered with the ARDC and on active status from 1989 through 1994. He initially practiced at the law firm of Altheimer & Gray. He left that position to operate a commodities trading business from 1995 until 2005. Respondent did not register with the ARDC from 1995 through 2005 and was not authorized to practice law during this time. In 2006, Respondent paid all of the necessary charges and was reinstated to the master roll. He also registered with the ARDC for the years 2007, 2008, and 2009. Respondent did not register for the year 2010 and has been removed from the master roll. He is not currently authorized to practice law. (Tr. 39-41, 144; Adm. Exs. 1, 2).
Respondent had been a college classmate of Peter Lubin, one of D-L's partners, and they had been close friends for many years. While he was operating his commodities business, Mr. Lubin would call Respondent periodically and ask him if he was interested in practicing law with him. Toward the end of 2005, Respondent's mother was ill and Respondent also became ill and needed an organ transplant. Respondent shut down his commodities business and worked on the trading floor as a pit broker for several months until the firm that he was working for collapsed
and he found himself out of a job. Respondent then contacted Mr. Lubin and Mr. Lubin invited him to work at D-L. (Tr. 144-45).
Respondent worked as an independent contractor at D-L from December 19, 2005 until April 7, 2008. He provided legal services for the law firm's clients and for some of his own clients. D-L had recently taken on a lot of class action defense work and Respondent worked on those cases, which were all billed hourly. The firm was also developing some plaintiff's class action work and Respondent also worked on a number of these matters. D-L had a core of hourly work but also had a lot of speculative work. Respondent worked primarily with Mr. Lubin on these class action matters. (Tr. 41-42, 144-46).
Respondent testified that he did not initially have any independent contractor's agreement with D-L. They had what he described as an "at will" arrangement where either party could walk away at any time. Respondent drafted the 2005 Agreement and showed it to Mr. DiTommaso but he does not believe that the agreement was ever actually signed. Regardless of this fact, Respondent testified that they worked under this arrangement for a period of time. Respondent said that he was happy with the arrangement and the firm seemed to be fine with him. Since Respondent had not been practicing law for about ten years and had not done litigation for a while, it took him some time to get up to speed in his work. Respondent believed that he eventually did get up to speed and that he had a good working relationship with the firm. Respondent stated that he was grateful to both Mr. DiTommaso and Mr. Lubin. Until February of 2008, Respondent received a weekly salary of $1,000 which was paid to him every two weeks. He also received a discretionary bonus in April of 2007. (Tr. 41-43, 149-50; Adm. Ex. 4 at 11-12).
Respondent testified that the second agreement came about in 2008 after he and Mr. Lubin had a dispute and got angry with one another. Respondent had only a few scattered clients and the firm wanted him to bring in more business. Respondent had been doing a lot of work on the hourly cases and was also taking on a lot of risk on the firm's contingency cases because he was being paid very little up front. Respondent was fine with this when the arrangement started because it was better than not having a job. Respondent said that he and Mr. DiTommaso worked for weeks on the terms of the 2008 Agreement. (Tr. 150-51; Adm. Ex 4 at 13-18).
On April 7, 2008, Respondent's independent contractor relationship with D-L was terminated. Respondent acknowledged receiving an e-mail on that date from Mr. DiTommaso confirming the termination of the relationship and of the "Independent Contractor Agreement." The e-mail noted several cases that Respondent would be taking with him and stated that D-L would pay Respondent what was owed to him under the "Agreement." Respondent believes that, legally speaking, the contract was terminated rather than him being terminated since he was an independent contractor. In any event, they got into a fight and they split up. (Tr. 43-44, 151; Ex. 4 at 19).
On June 9, 2008, Respondent sent notices of attorney's liens to various parties on cases involving D-L firm clients. Respondent acknowledged that he did not have written contracts with any of the clients designated in those liens. Respondent testified that when he left D-L, he took a few cases with him and there was also an issue as to how he was going to get paid on these other cases that that they had in common. He stated that he had put a lot of time into every one of these matters and had done all of the work on some of them. Respondent believed that he was entitled to be paid. (Tr. 45-46, 152-53; Adm. 4 at 20-37).
The Eckhaus case was one of the cases that Respondent worked on while at D-L. The case originated before Respondent began working at the firm. They were having difficulty finding a plaintiff for this consumer class action and the case ended up being filed in New York after an attorney there, Paul Saud, found a plaintiff. Respondent testified that he, Mr. Lubin, and Mr. Saud did 95% of the work on the case. Mr. DiTommaso came in at the end of the case to negotiate a settlement. Respondent drafted the complaint and the amended complaint. The case involved extensive motion practice and Respondent and Mr. Lubin worked on various motions together. Respondent also handled 12 to 20 depositions, including a very complicated deposition of the defendant's expert which took place over the course of two days in New York. Respondent stated that opposing counsel in the case was a very good law firm and the matter involved a substantial amount of work on very fast-paced schedule. (Tr. 46, 146-48).
Respondent testified that they did not think that Judge Block was going to approve the preliminary settlement because the matter had been pending for some without being ruled upon. When the approval finally did come through, Respondent wanted to be paid. Respondent was named individually, along with Mr. Lubin and Mr. DiTommaso, as class counsel in the preliminary approval order. Once he was gone from D-L, the firm took his name off the final approval order that it submitted. Respondent thought that this was unfair and wrong because the final order did not track the language in the preliminary approval order. As a result, Respondent decided to submit his own order to restore what he believed to be the status quo. (Tr. 154-55).
Respondent testified that other than the independent contractor's agreement, he never had any express agreement with D-L regarding how the fee in the Eckhaus case would be divided. The closest thing that they had to an implied agreement was an understanding that the firm knew how much work he had done on the case and would take care of him. (Tr. 172).
On June 18, 2008, Respondent filed an amended final approval order along with various supporting materials, including his affidavit, resume, and a notice of attorney's lien. In the amended order, Respondent sought to have the $298,000 in attorneys' fees paid by "a check in the amount of $105,000 made out to Brain C. Witter, PC" and "a check in the amount of $193,000 made out to DiTommaso & Lubin, which DiTommaso & Lubin will distribute among Class Counsel." Respondent acknowledged that he was claiming in this submission that he was entitled to $105,000 in attorney's fees for work he did on the case. Respondent testified that this amount was a precise calculation of his fees based on the hours that he worked on the case as reflected in his time records. Respondent arrived at this amount by going through his own time records as well as those of the other attorneys as reflected in their fee petitions. He stated that his actual time was about $113,000 but that he had reduced his claim by about $8,000 based on costs that should have been allocated to him. (Tr. 46-48, 148; Adm. Ex. 2).
Respondent admitted that there were certain inaccuracies in the resume and affidavit that he submitted along with the amended order. In his resume, Respondent represented that he had operated the Law Offices of Brian C. Witter from the year 2004 up until the date of the submission. Respondent acknowledged that this statement was incorrect and that he had only operated his law practice since the last couple of weeks of 2005. He also admitted that he was removed from the master roll from 1996 through 2005 and was not reinstated until 2006. Respondent's resume also incorrectly stated that he worked at the law firm of Altheimer & Gray from 1988 to 1997. Respondent admitted that both of these years were incorrect and that he had actually worked at that firm from 1987 to 1995. He also admitted that he was not authorized to practice law from 1995 through 1997. Respondent also represented in these submissions that he had worked for seven years from 1998 through 2004 as a partner and counsel in the financial
industry. Respondent admitted that he was not authorized to practice law during this period of time. In the affidavit Respondent described his trial experience as including practice in various forums, including the ARDC. Respondent admitted that this statement was not correct and that he should not have used the term "trial experience" with regard to the ARDC. (Tr. 48-51; Adm. Ex. 2 at 6-8, 20-23).
Respondent testified that he believed that his dispute with D-L over his entitlement to fees in the Eckhaus case involved a "contract dispute." He considered the 2005 Agreement irrelevant because it had lapsed. He also believed that once the 2008 Agreement was terminated, he was free to seek attorney's fees in the Eckhaus case and otherwise. His position was that there was no agreement on fees because the contract was terminated and there was nothing in it to pull it forward to apply past the date of termination. He believed that it was then a matter for the court to decide what each of them was entitled to receive. Respondent acknowledged that it was the firm's position that the contract provisions applied even though the contract had been terminated. (Tr. 151-52, 173-77).
Respondent testified that he did not regard the $1,000 weekly payment he was getting from D-L to affect what he was owed in the case because he viewed these as two separate things. The Eckhaus case was a speculative contingency fee matter and he was getting very little up front in the hope that he would get something more in the future. Respondent acknowledged that, but for D-L, he would not have worked on the Eckhaus case. He also admitted that he had previously worked at a large law firm and had never made any claim for fees based on recoveries the firm obtained in particular cases. Respondent stated that this was because he was an employee of that firm, not an independent contractor. Respondent testified that his dispute with
D-L was over the fees awarded by the court and he never believed that the law firm owed him money. (Tr. 83, 174-75, 179-82).
On June 20, 2008, D-L filed an action in Du Page County seeking a declaration that Respondent was not entitled to any fees in the Eckhaus case or in any of the other lawsuits he had worked on for the firm. On June 23, 2008, Judge Block held the fairness hearing regarding the proposed settlement and entered a Final Approval Order approving payment of "$298,000 to Class Counsel for attorney' fees and costs" and directing that the payment be made by a check in that amount "made out jointly to Vincent L. DiTomasso, Peter S. Lubin, and Brian C. Witter." Respondent admitted that the Final Approval Order makes no allocation of the attorney's fees awarded and that Judge Block expressly refused at the hearing to make any such allocation. Respondent stated that he believes that Judge Block should have decided what amount each attorney would receive and did not think that it was appropriate for him to tell the attorneys to go into state court in Illinois to resolve the matter. Respondent believes that the judge's refusal to decide this "is what caused the whole problem" in the case. (Tr. 54-56, 155-56; Adm. Exs. 4, 5, 6).
On July 7, 2008, D-L received a check in the amount of $298,000 that was made payable to "DiTomasso & Lubin P.C. and Brian Witter." Respondent denied that he was asked to endorse the check when it was first received. He stated that D-L already had its case pending in DuPage County and they were litigating the matter in court. Respondent acknowledged that over the course of the next several months, he was repeatedly asked by various lawyers involved in the case to endorse the check because they wanted to get their money. (Tr. 57-58; Adm. Ex. 7).
After the Final Approval Order was entered, Respondent said that he analyzed his various options and ultimately decided to let the 30-day appeal period run so that the order would
become final and would be res judicata. He believed that the parties would then be "stuck" with the order and would not be able to do anything to change it. Respondent believed that the Final Approval Order was clearly a Rule 54(a) judgment since it became final and was not appealed. (Tr. 156-57).
Respondent testified that he did not want to litigate the dispute over the fee award in DuPage County because he did not think that it was appropriate to re-litigate a final federal order in state court. Therefore, he moved to dismiss the DuPage County case on the basis of res judicata. At the same time, he decided to try to get the local federal court to decide the matter since the New York judge would not. Respondent stated that he did not try to litigate the matter under the contract in federal court but based his whole argument on federal jurisdiction and the res judicata argument. (Tr. 157-59, 177-78).
On August 19, 2008, Respondent registered the Final Approval Order as a judgment in the U.S. District Court for the Northern District of Illinois pursuant to 28 U.S.C sec. 1963, the federal statute that governs the registration of foreign judgments for purposes of enforcement. That case was assigned to The Honorable Amy St. Eve. On August 20, 2008, Respondent filed an Emergency Motion to Enforce Judgment and for Other Relief in which he stated that the "Eckhaus final judgment, for $298,000 in attorneys' fees, awards Witter, a co-judgment creditor, $149,000." Respondent denied that this was an untrue statement and said that this was a "legal argument." Although his fees were only $105,000, Respondent said that he arrived at the $149,000 figure based on the way that the order was written. He viewed D-L as one entity and himself as the other entity and thought that each of them should get half. Respondent admitted that there were other attorneys who were entitled to fees that were not named in the Final Approval Order. He stated that he was not going to receive the entire amount he sought for
himself because, as lead counsel, he would have to distribute some of this to the other attorneys. Under his theory, he would keep $105,000 and then would distribute the remaining $44,000 to those other attorneys. (Tr. 59-61, 158-59, 165, 171; Adm. Ex. 8).
On September 23, 2008, after the parties had briefed the issue, Judge St. Eve denied Respondent's emergency motion and dismissed Respondent's case "without prejudice for lack of subject matter jurisdiction." The Judge stated in her order that the "judgment" Respondent seeks to enforce "does not exist." She noted that the attorneys were not parties to the underlying action and that it is indisputable that a claim for attorneys' fees is not part of the merits of the action to which the fees pertain. She also pointed out that the New York court in the Eckhaus case had expressly declined to decide the dispute over the allocation of fees. Respondent immediately appealed Judge St. Eve's decision to the Seventh Circuit. Respondent stated that he decided to pursue the appeal because he was looking for a way to resolve the matter quickly and did not want to get bogged down in the contract case in DuPage County. (Tr. 61-63, 169; Adm. Exs. 9, 10).
On August 24, 2008, while the first action was still pending before Judge St. Eve, Respondent had also filed a Notice of Removal in the U.S. District Court for the Northern District of Illinois with regard to the DuPage County action filed by D-L. That matter was assigned to The Honorable Rebecca R. Pallmeyer. On October 3, 2008, Respondent filed a Motion to Enforce Judgment and for Other Relief in which he again referred to the Final Approval Order in the Eckhaus case as a judgment and also represented that it had awarded him $149,000 when there was no such allocation. On October 16, 2008, Judge Pallmeyer remanded that case to DuPage County on the basis that Judge St. Eve's determination that there was no
federal judgment to enforce was controlling unless it was overturned on appeal. (Tr. 63-65; Adm. Exs. 11, 12, 13).
On December 9, 2008, Judge Dudgeon conducted a preliminary injunction hearing in the Du Page County action. At the conclusion of those proceedings, Judge Dudgeon granted D-L's motion for a preliminary injunction and entered an order directing Respondent to endorse the $298,000 check. The order also allowed D-L to distribute $149,000 of the proceeds from the check at its discretion and to hold the remainder in escrow. The order further enjoined Respondent from filing any additional attorney's liens and directed him to withdraw any that he had already filed with the law firm's clients. On December 10, 2008, Respondent filed a Notice of Interlocutory Appeal in the Illinois Appellate Court challenging the preliminary injunction order. (Tr. 65-67; Adm. Exs. 14, 21 at 10).
On or about February 4, 2009, Respondent filed a Motion for Leave to File a Complaint for Mandamus against Judge Dudgeon in the Illinois Supreme Court which was directed at challenging Judge Dudgeon's December 9, 2008 order and his disposition of the attorney's fees from the Eckhaus case. In that motion, Respondent referred to the portion of the fees that were being held in escrow pursuant to the court's order as "Witter's portion of the judgment proceeds." (Tr. 68; Adm. Ex. 16 at 6, 9).
On February 6, 2009, Judge Dudgeon entered an order denying a motion to dismiss filed by Respondent as well as a motion that he had filed with respect to the release of the alleged judgment proceeds. Judge Dudgeon also granted D-L's request for sanctions against Respondent for having to defend against identical motions to dismiss. (Tr. 67; Adm. Ex. 15).
On February 9, 2009, Respondent filed a Motion for Substitution of Judge for Cause and for Transfer of the Action to the Circuit Court of Cook County. That motion included, inter alia, the following statements:
- Although the court's disregard for the law in all of its various manifestations has been indiscriminate, ignoring cases, statutes, procedural rules, principles of sound public policy, controlling United States Supreme Court precedent on issues of federal law, and both state and federal constitutional authority, it may be asserted that even such judicial roguery should not necessarily occasion a motion to remove a judge from a case for cause.
- Nor, further still, in isolation, it could be argued, should a judge's failure to apply logic and reason to a legal matter necessarily require removal for cause.
- [T]he Judge's conduct of this matter has from the beginning been tainted by his evident and apparently profound dislike of me.
- There was, on the Judge's part, given the complexity of the issues raised, an appallingly hasty rush to judgment that can only be explained through bias and, literally, "pre-judging."
- The proceedings, in short, have been irredeemably corrupted by prejudice and disdain for one party and the concomitant elevation of the interests of one party over the other.
- Where judiciousness, thoughtfulness, and restraint have been called for, instead the Judge has displayed contempt for one party and demonstrated an inability to adjudicate the matter according to law as the Rules of the Illinois Supreme Court and the Code of Judicial Conduct require.
- Any litigant deserves to have their matter decided according to the law and not the whims of a judge whose actions have been clouded by bias and his reason betrayed by prejudice. "According to law" means citations to authority; it means actually reading briefs; it means giving reasons when ruling; and it means conducting the matter with fairness and impartiality. These basic duties have been ignored in this matter.
- The conduct of this matter by Judge Dudgeon has been—no other word—a disgrace.
Although he acknowledged filing this motion, Respondent testified that he never actually presented it for hearing. (Tr. 68-69, 178; Adm. Ex 17).
On February 10, 2009, oral argument was conducted in the United States Court of Appeals for the Seventh Circuit before Judge Ann Claire Williams, Judge John D. Tinder, and Judge Richard D. Cudahy, in Respondent's appeal of Judge St. Eve's dismissal of the enforcement action. In response to Respondent's position that he was entitled half of the Eckhaus fee award based upon the Final Approval Order, Judge Williams noted that the approval order said nothing about allocating fees and that Judge Block could not have been more clear about the fact that the was not going to decide the allocation. Judge Tinder also expressed concern that Respondent "ought to be sanctioned for pursuing this." (Tr. 70-72; Adm. Ex. 21 at 81-88).
Shortly thereafter, Respondent and D-L resolved their dispute regarding the Eckhaus fees and entered into a settlement agreement. Although the agreement was confidential, Respondent disclosed that he was paid $11,500. In February of 2009, the parties entered into a stipulation to dismiss all of the pending actions, including the DuPage County case and the related appeal. (Tr. 72-73; Adm. Ex 21 at 90-92).
With regard to the disciplinary charges based on the alleged misrepresentations in his resume and affidavit, Respondent acknowledged that he made certain mistakes on his resume, including errors concerning the dates of his employment. Respondent testified that he had not done a resume for a long period of time and said that he did a "series of drafts that were kind of mangled." Respondent denied that these errors were intentional or that he intended to mislead the judge. He also stated that these matters were not at issue because his motion was based on the work he had done on the case and the judge already knew who he was. Respondent also denied that he had failed to take any remedial measures to correct these misrepresentations. He said that after the errors were pointed out to him, he advised a clerk he was in contact with
named Andrew Jackson of this and asked if he should do anything to re-mediate the situation. He was informed by Mr. Jackson that the case was closed. Respondent has several letters that he wrote to Mr. Jackson regarding other matters but does not know if any of them refer to his remedial efforts regarding these errors. (Tr. 51-54, 167-68; Adm. Ex. 18).
With regard to the other alleged misrepresentations, Respondent testified that these statements in his pleadings were not misrepresentations but were all legal arguments that were well thought out by him. He stated that he was the one who ordered the transcript of the fairness hearing in the Eckhaus case and he used it offensively. He knew what Judge Block had said but was taking a different position on it. Although he acknowledged that he made technical arguments, he stated that he supported them all with authority and spent an extensive amount of time researching the matter. He said that he also discussed these issues at length with other lawyers and filed a 50-page brief in the Seventh Circuit which cited authority on every point. Respondent testified that he had reasons for everything that he did and that he always acted in good faith. He noted that he was never sanctioned on any of these issues and that his opposing counsel never even moved for sanctions. Respondent acknowledged that his arguments were not successful with the courts in Illinois and that the judges who heard the case were tough on him, but he believes that he held his own and still believes that he was right. Ultimately, part of his rational for settling that matter was that he reached the conclusion that there was no way for him to prevail. (Tr. 159-61, 166-69, 177-78).
With respect to the language that he used in the motion to substitute directed at Judge Dudgeon, Respondent acknowledged that he went "overboard" and that he "crossed the line." He explained that under the Civil Practice Act, an attorney is required to question the judge's judgment in order to obtain a substitution for cause but he conceded that he should have
questioned it "less harshly." He also stated that he believed that he was getting a raw deal in the way that the case was being handled because he would do hundreds of hours of work on an issue and the judge would give an oral ruling that would not cite any authority. He acknowledged that the matter was stressful and that he let things get away from him. Although he did not recognize it at the time, in re-reading the motion now he realizes that it was overly personal, too strong, and that he never should have written it. Respondent stated that he was sorry for this and that he felt some contrition over the matter. (Tr. 162-65, 178).
Evidence Offered in Mitigation and Aggravation
Thomas Hoffman is a sergeant in the Court Security Division of the DuPage County Sheriff's Office. He has worked in Court Security for 17 years and has been a supervisor since 2002. He currently oversees the screening unit on the first floor of the courthouse as well as all of the deputies that are assigned to courtrooms on the second floor. He is responsible for the safety of the judges as well as any other occupants of the building. Sergeant Hoffman reports to the Chief of Court Security and has approximately 35 deputies that report to him. (Tr. 86-88).
Judge Dudgeon has a courtroom on the second floor of the building. On February 6, 2009, an incident occurred in Judge Dudgon's courtroom that was brought to Sergeant Hoffman's attention by the deputy assigned to that courtroom, Deputy Kristen Revere. Deputy Revere reported that one of the attorneys who appeared in a case that came before the judge had acted in a bizarre and irrational manner. The attorney involved was Respondent. Deputy Revere described Respondent's behavior as going back and forth between loud, challenging, and boisterous to calm, quiet, and relaxed. She said that at times Respondent would be red-faced and
shaking, and that his behavior was irrational and included intimidating body language. (Tr. 88-89; Adm. Ex. 32).
Sergeant Hoffman prepared a report regarding this incident which includes a notation that he was assisted by "Brian Beck." Brian Beck is a sergeant with the Glen Ellyn Police Department and his name is included in the report because Judge Dudgeon expressed some concern for the health of himself and his family based on the way that Respondent had acted in court. He requested that Sergeant Hoffman contact the Glen Ellyn Police Department so that they could keep an extra patrol on the judge's residence. (Tr. 89-90, 92-93; Adm. Ex. 32).
Sergeant Hoffman documented the report, spoke with Judge Dudgeon, and also contacted the DuPage County Bar Association to see if Respondent had an attorney's card which would permit him to enter the courthouse unscreened or unchecked. Although Sergeant Hoffman has done many reports like this, this was the first one that involved an attorney. The report lists the disposition of the matter as "active," which means that they did not close the matter out but left it active in case there were other incidents which followed. (Tr. 89-93; Adm. Ex. 32).
Sergeant Hoffman testified that he never heard anything else about this incident after February 7, 2009. Judge Dudgeon never reported that he had been threatened but was just concerned about Respondent's behavior in court that day. Sergeant Hoffman did not witness Respondent's behavior himself and did not speak with Respondent. No criminal charges were ever filed as a result of the incident. (Tr. 94).
Respondent testified that he had a kidney transplant in 2005. This was a preemptive transplant and he was never required to go on dialysis. He has not been having continuous health problems since that time and his biggest concern relates to the drugs that he is required to take
which are extremely expensive. He stated that he is extremely healthy now and is doing okay. (Tr. 70).
With regard to the incident in Judge Dudgeon's courtroom, Respondent testified that he did not know about the security incident report until two days ago and did not actually see it until that morning. Respondent was not aware that this incident was at issue in this case and thought that the charges only related to the intemperate language that he used in his motion. Respondent admitted that counsel for the Administrator offered to send the materials over to him last week but he indicated that he would prefer to come in early the day of the hearing to review them. (Tr. 161,178).
Respondent acknowledged that the report states that he had interrupted the judge's ruling three or four times, that his temper would go from low to high, and that he had tossed a packet of papers on the bench in an abrupt manner. The report further states that he interrupted the ruling and shouted, "What makes you think you can rule on a matter like this." Respondent testified that he did not recall his courtroom decorum being the way that it is described in the report. He acknowledged that he was not happy but said that he did not scream, go crazy, or lose his composure. The most provocative thing that he remembers doing was serving the judge with the mandamus. While he did not consider this improper, he acknowledged having some regrets about it and stated that he would not do this again. Respondent could not recall interrupting the judge's ruling or shouting, but he may have made the statement attributed to him in the report. He said that he was referring to his position that you could not bring a federal court order into state court and have it modified in any way. Respondent testified that Judge Dudgeon never said a word to him about his behavior and that nothing happened with respect to the deputy or the bailiff. (Tr. 161-64, 175-76, 178-79; Adm. Ex. 32).
Respondent acknowledged that he filed a motion to dismiss the Amended Complaint in this disciplinary matter and that the motion was later denied. He also filed a motion for Rule 137 sanctions against the Administrator in which he asserted that the Amended Complaint contained "a series of false and reckless allegations that no lawyer, upon reasonable inquiry into the facts and governing law, would have ever made." The Chair subsequently denied that motion on the basis that Rule 137 only applies to civil actions and further indicated that if he could rule, he saw nothing in the motion that would have led him to award sanctions. (Tr. 73-76; Adm. Exs. 19, 22, 23, 24).
On October 20, 2009, Respondent filed an answer to the Amended Complaint in which he denied making misrepresentations of any kind to any court in any proceeding. He also repeatedly stated, in response to certain allegations, that the "Second District Appellate Court ruled in respondent's favor on the central issues before Judge Dudgeon." Respondent testified that he based this statement on his belief that the Second District had stayed the matter pending the outcome of the federal court litigation. He acknowledged that he was wrong about this and that the matter had not been stayed. He also admitted that the Appellate Court made no substantive ruling in his favor in the case. (Tr. 76-79; Adm. Exs. 19, 20 at 2, 4).
The Administrator reported that Respondent has not been previously disciplined by the Illinois Supreme Court or any Board of the Commission.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary matters, the Administrator must establish charges of 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, 393 (1999). Clear and convincing evidence constitutes a high level of
certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 484-85, 577 N.E.2d 762 (1991). Evidence of suspicious circumstances or the exercise of poor judgment by an attorney, standing alone, are not sufficient to support a charge of misconduct. In re Winthrop, 219 Ill. 2d 526, 550, 555, 848 N.E.2d 961 (2006).
All of the charges in this case arise out of a dispute between Respondent and his former law firm, D-L, over fees. Respondent had worked for the firm as an independent contractor for several years before he was terminated. Thereafter, he sought to collect attorney's fees for work he had done prior to his termination. Although the Complaint includes some allegations regarding liens that he filed in other matters, most of the charges center on Respondent's efforts to collect a portion of the fees awarded as part of the class action settlement in the Eckhaus case. The Administrator alleges that, in an effort to collect on these claims, Respondent filed frivolous litigation, offered false evidence, made misrepresentations, and improperly attacked the integrity and qualifications of a judge. Respondent was specifically charged with the following misconduct: 1.) bringing a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, and without a good-faith argument for an extension, modification or reversal of existing law, in violation of Rule 3.1; 2.) making a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false, in violation of Rule 3.3(a)(1); 3.) offering evidence that the lawyer knows to be false, or failing to take remedial measures when the lawyer comes to know of the falsity, in violation of Rule 3.3(a)(4); 4.) making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge in violation of Rule 8.2(a); 5.) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in
violation of Rule 8.4(a)(4); 6.) engaging in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and 7.) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.
The evidence established that that Respondent worked as an independent contractor for D-L for a little over two years, from December 2005 until April of 2008. During that time he worked on a variety of client matters, mostly for D-L clients, but he also operated his own firm and had a small number of his own clients. Respondent was initially paid a flat rate of $1,000 per week and also received some additional payments from D-L, including a car allowance and at least one discretionary bonus. Although the parties drafted a written independent contractor agreement which set forth some of these terms, no signed copy of it was introduced into evidence and it was unclear whether it was ever executed. In any event, the parties apparently worked under this arrangement for several years, until they entered into a second agreement in February of 2008. The 2008 Agreement, which was signed by both Respondent and D-L, provided that Respondent would no longer receive any guaranteed weekly payment and that his compensation would instead be tied to specific formulae which were set forth in detail in the agreement. This second agreement was in place for only a short period of time. Shortly after it was entered into the parties apparently had some type of falling out or disagreement and, on April 9, 2008, D-L terminated its working relationship with Respondent.
A dispute then ensued between Respondent and D-L regarding whether he was entitled to receive any additional compensation for work he had done on various matters while at the firm. Respondent believed that he was still entitled to be paid on certain cases and he served notices of attorney's liens on the clients involved in those matters. The primary matter at issue was the
Eckhaus case, a consumer class action suit that was being litigated in federal court in New York in front of Judge Block. Mr. DiTommaso, Mr. Lubin, and Respondent had all filed individual appearances in the case and together were named as lead class counsel. It was undisputed that Respondent had done a substantial amount of work on the Eckhaus case during his relationship with D-L. It was also undisputed that almost all of the work on the case had already been completed before the 2008 Agreement was entered into and before Respondent was terminated by D-L. A settlement agreement which included the payment of $298,000 to class counsel for attorney's fees and costs had been negotiated by the parties and the matter had been submitted to Judge Block for preliminary approval. On March 14, 2008, shortly before Respondent's termination, Judge Block entered the preliminary approval order. Notice was then provided to the class and a fairness hearing was scheduled for June 23, 2008. D-L also submitted a proposed final approval order to the court which included a provision for the payment of the $298,000 in attorneys' fees by a check made payable to D-L, which D-L would then distribute among class counsel.
Although Respondent was no longer working at D-L, he was still listed as class counsel and apparently believed that he was entitled to some portion of the fee award. When he learned that the firm was seeking to have the entire amount paid to it, he filed his own amended final approval order in which he sought to have Judge Block direct that $105,000 of the fees be paid directly to him. The portion of the fee award that he sought was based on his contribution to the case as reflected in the various fee petitions that had been submitted by all the attorneys involved. Respondent also submitted other materials along with this order, including a resume, an affidavit, and a copy of the attorney's lien.
Respondent's actions prompted D-L to file a suit against him in the Circuit Court of DuPage County seeking declaratory and injunctive relief. It was the firm's position that Respondent had been fully compensated for his work pursuant to the terms of his independent contractor agreements with D-L and that he was not entitled to any additional sums. At the June 23, 2008 fairness hearing, Judge Block entered the final approval order concerning the settlement but did not allocate the fee award among the various attorneys involved. He indicated that it was not for him to decide how the money was to be distributed and that this was a separate fight between the Respondent and D-L. Judge Block directed that the check for fees be made out jointly to Respondent, Mr. DiTommaso, and Mr. Lubin, the three named class counsel, and the Final Approval Order was drafted accordingly.
The dispute between Respondent and D-L over the fee award then moved to the state and federal courts in Illinois where various additional suits and appeals were instituted. After Respondent refused to endorse the settlement check, D-L sought and later obtained a preliminary injunction from Judge Dudgeon in the DuPage County case requiring him to do so. Judge Dudgeon allowed half of the funds to be distributed and ordered that the other half be held in a separate account pending the resolution of the merits of the case. Respondent filed an interlocutory appeal of Judge Dudgeon's decision in the Illinois Appellate Court. Later, after the judge again ruled against him in another matter, he filed a motion to substitute the judge for cause in which he made various accusations regarding the judge's handling of the matter. Around this same time, Respondent also filed a motion in the Illinois Supreme Court seeking to leave to file a complaint for mandamus against Judge Dudgeon challenging the propriety of his actions and rulings.
In the mean time, Respondent had also instituted several proceedings in the U.S. District Court for the Northern District of Illinois in an attempt to have the matter addressed in a federal forum. He filed a proceeding seeking to enforce the Final Approval Order as a as a "judgment" and also attempted to remove the DuPage County case to federal court on this same basis. Judge St. Eve dismissed the first action for lack of subject matter jurisdiction finding that the final approval order was not a "judgment" regarding the matter of fees that could be enforced pursuant to 28 USC sec. 1963. Shortly thereafter, Judge Pallmeyer remanded the other case to DuPage County on the basis of Judge St. Eve's decision. Respondent appealed Judge St. Eve's decision to the Seventh Circuit and the matter was briefed and argued there. At oral argument, the Court was not at all receptive to Respondent's claims and one of the judges went so far as to suggest that perhaps Respondent should be sanctioned for continuing to pursue the matter.
Shortly thereafter, the parties sat down together and agreed to settle the entire matter. Although the terms of the settlement were confidential, it was disclosed at the hearing by both parties that Respondent received a payment of $11,500. All of the various cases and appeals were then dismissed.
Respondent is initially charged with violating Rule 3.1 based on his pursuit of these claims to recover attorney's fees after he was terminated from D-L. Rule 3.1 provides that a "lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law." The Administrator contends that Respondent did not have any basis for pursuing his claims because he had already been paid for his work pursuant to his written agreement with D-L and had no right to share in any of the fees awarded in the Eckhaus case or to recover additional fees in any other matter.
We find that this charge was not proven by clear and convincing evidence. With respect to Respondent's efforts to collect fees in the Eckhaus matter, there is no question that he was largely unsuccessful in pursuing this claim. Judge Block initially refused his request that he resolve the dispute by apportioning the fees and his subsequent attempts to get the federal courts in Illinois to take jurisdiction over the matter were repeatedly rejected. In the state court action, Judge Dudgeon ruled against him at the preliminary injunction stage and also rejected his attempts to have that action dismissed. Respondent's lack of success on his claims or theories of recovery, however, is obviously not alone sufficient to establish an ethical violation. Rather, Rule 3.1 requires that the Administrator prove by clear and convincing evidence that Respondent's arguments or claims were frivolous and that he had no good faith basis for pursuing them. A claim has generally been considered to be frivolous or legally unwarranted where it lacks any reasonable basis in fact or existing law and lacks any good faith argument for an extension, modification, or reversal of existing law. See In re Olivero, 01 SH 59 (Hearing Bd.), petition for leave to file exceptions allowed, discipline modified, M.R. 19681 (Nov. 17, 2004); First Federal v. Drover, 237 Ill. App. 3d 340, 344, 606 N.E.2d 1253 (2d Dist. 1992). We are not convinced, based upon the evidence that was presented here, that this was established in this case.
While the Administrator contends that Respondent's fee claims were clearly barred by the parties written agreement, Respondent maintained that the contract did not govern this aspect of their dispute and that he was entitled to recover a share of the fees awarded by the court based upon the terms of the Final Approval Order. Respondent described in his testimony his basis for proceeding with this claim and the legal theories that he was relying upon in support of it. Although he conceded that his arguments were technical, he testified that he exhaustively
researched the issues and supported his positions with citations to applicable authority. Many of these arguments are also set forth in detail in the pleadings and briefs that were introduced into evidence at the hearing. With regard to these claims, we also note that it was undisputed that Respondent was individually named as one of the class counsel and that he did a substantial amount of the work on the case. Furthermore, while Judge Block refused to decide the fee dispute he did not rule out Respondent's claim and even directed in the Final Approval Order that his name be included as one of the payees on the check. Even Mr. DiTommaso acknowledged Respondent's substantial contributions to the case and conceded that he was perhaps entitled to a discretionary bonus from the firm for his work. Moreover, the parties did ultimately agree to a monetary settlement in the dispute, albeit in an amount much less than originally sought by Respondent.
We note that disagreements over outstanding fees in ongoing cases are not uncommon when attorneys leave their firms or are terminated. As was the case here, such disputes are frequently acrimonious and hard fought. Although Respondent's arguments in support of his claim have been weak and ultimately unsuccessful, based on the evidence that was presented, we do not believe that the Administrator presented clear and convincing proof that his positions were so unfounded that they were pursued in bad faith or were without any reasonable basis in fact or law. Accordingly, we conclude that the Rule 3.1 charge was not established.
With respect to the attorney's liens that were served by Respondent on firm clients in other matters, we reach a similar conclusion that there was insufficient evidence to establish the Rule 3.1 charge. It was undisputed that all of the liens were served in matters that Respondent had actually worked on while at D-L. In some, he may have even been the attorney of record. Thus, we do not believe that it was established that they were completely without any basis in
fact. Even more important, Respondent represented that he withdrew these liens shortly after they were served and did not pursue these claims any further. The Administrator did not present any evidence to the contrary. Based on these facts, we do not believe that it was proven that Respondent's actions rose to the level of a violation of Rule 3.1.
Finally, with respect to the Rule 3.1 charges, we also find it significant that the various courts and judges who heard these underlying matters did not sanction Respondent for filing these actions or pursuing these claims. Nor did they make any specific findings that he had engaged in frivolous or unfounded litigation. Although Respondent was sanctioned on one occasion by Judge Dudgeon this was based on the fact that he re-filed a motion to dismiss that had been previously denied. While one of the federal judges also raised the possibility of sanctions during oral argument, Respondent agreed to settle the entire matter shortly thereafter and no findings were ever made or sanctions assessed. Even though sanctions against the attorney in the underlying matter are not necessary to prove a Rule 3.1 charge, such findings by the courts most familiar with all of the facts and the law at issue and who have the complete record in the underlying proceedings would arguably have provided some additional support for the Administrator's position. See, e.g., In re Meyer, 95 CH 948, M.R. 18764 (Sept. 19, 2003). In this case, the absence of such findings coupled with the lack of other clear and convincing proof of the charges leads us to conclude that the Administrator has not met his burden here.
The Administrator next charges Respondent with various rule violations based upon certain alleged misrepresentations in the resume and affidavit he submitted in the Eckhaus case and in the pleadings he filed in the ensuing litigation over the fee award. Rule 3.3(a)(1) provides that a lawyer shall not "make a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false." Rule 3.3(a)(4) provides that a lawyer shall not "offer
evidence that the lawyer knows to be false" and requires the lawyer to take "reasonable remedial measures" if the lawyer has offered evidence and comes to know of its falsity. Rule 8.4(a)(4) prohibits a lawyer from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation." We note that all of these rules include some element of knowledge or intent. See, e.g., In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581 (2009) (discussing intent required under Rule 8.4(a)(4)). We conclude that there was insufficient evidence presented here to establish these charges by clear and convincing evidence.
First, with regard to the resume and affidavit that Respondent submitted in connection with his claim for fees, there is no question that there were several inaccuracies. Respondent acknowledged at the hearing that he made certain mistakes regarding the dates of his employment and that he should not have stated that he had "trial" experience before the ARDC. He also admitted that he listed himself as "counsel" to his own securities firm during a period of time that he was not registered to practice law. Not every error or mistake by an attorney, however, constitutes professional misconduct under these rules. See In re Mason, 122 Ill. 2d 163, 169, 522 N.E.2d 1233 (1988). Respondent explained that he had not done a resume for a long time and acknowledged that he had been sloppy in preparing these documents. He denied, however, that these mistakes were intentional or that he purposely sought to deceive Judge Block regarding his qualifications and experience. He also represented that, after the errors were pointed out to him, he contacted a clerk about the matter and was informed that the case was closed. While the evidence showed that Respondent was careless, we do not believe that it was sufficient to establish that he knowingly made any material misrepresentations or that he engaged in any intentional dishonesty or deceit with regard to these matters. Thus, we find that these charges were not established by clear and convincing evidence.
The remaining allegations are based on several statements that Respondent made in his state and federal court pleadings regarding the fee award in the Eckhaus case. Specifically, the Administrator challenges Respondent's assertion in two of his federal court submissions that he was "awarded $149,000" in the Final Approval Order entered by Judge Block. He also challenges his use of the phrase "Witter's portion of the proceeds" in reference to the $149,000 that was in dispute. The Administrator argues that these statements were false because the court had only ordered the payment of fees to class counsel as a whole and did not specifically allocate the payment of fees specifically to Respondent. Respondent contends that these statements were merely legal arguments that he was making in support of his claims and were not material misrepresentations of fact.
We have reviewed these statements as well as the other evidence that was introduced in this matter and we find that these charges were not proven by clear and convincing evidence. As Respondent testified at the hearing, his position throughout these proceedings has been that he was entitled to a share of the attorney's fees awarded as part of the class action settlement based on the Final Approval Order that was entered by Judge Block. While he acknowledged that the order did not specifically allocate the fees, he based his claim on the language of the order which directed that the fees be paid jointly to Respondent, Mr. DiTommaso, and Mr. Lubin, as class counsel. We also note that Respondent filed a copy of the actual Final Approval Order when he initiated the federal action and attached a copy of it to one of the same pleadings in which he made this statement. Thus, we regard his assertions that he was "awarded" fees as merely stating his position or setting forth his legal argument concerning the impact of the court's order rather than constituting any misrepresentation regarding the order's contents. Although this argument was clearly unsuccessful, we do not believe that these assertions constituted knowing or
intentional misrepresentations or material misstatements of fact or law that would support a finding of misconduct under Rules 3.3(a)(1), 3.3(a)(4), or 8.4(a)(4).
The final charge is based on the statements Respondent directed at Judge Dudgeon in his motion to substitute. The Administrator alleges that Respondent violated Rule 8.2(a) by making various false statements about the judge after he had ruled against him in the matter. Rule 8.2(a) provides that a "lawyer shall not make 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." Although attorneys are permitted to engage in fair criticism of a judge's rulings, they are not allowed to engage in unjust criticism, insulting language, scurrilous attacks, or other offensive conduct toward members of the judiciary. People ex rel Chicago Bar Association v. Metzen, 291 Ill. 55, 58, 125 N.E. 734 (1919). Such conduct by attorneys, who are officers of the court, tends to bring the courts and the law into disrepute and to destroy public confidence in the integrity of the judiciary. In re Jafree, 93 Ill. 2d 450, 460, 444 N.E.2d 143 (1982).
We find that the Rule 8.2(a) charge was proven by clear and convincing evidence. Although Respondent was obviously unhappy with the judge's rulings and thought that he was incorrect, the statements that he made in his motion to substitute went well beyond voicing any fair criticism, comment, or disagreement. Rather, review of the motion reveals that Respondent unleashed a lengthy tirade directed at the judge that included statements attacking his character, integrity and fairness. For example, Respondent accused the judge of engaging in "judicial roguery" by indiscriminately disregarding and ignoring federal and state law. He also suggested that the judge's conduct throughout the proceedings had been tainted by his profound dislike of Respondent and accused him of bias and prejudgment. He stated that the proceedings had been "irredeemably corrupted by prejudice and disdain" and suggested that the judge had
demonstrated an inability to adjudicate the matter according to the law as required by Supreme Court Rules and the Illinois Code of Judicial Conduct. He further suggested that the judge had not read the briefs and stated that his "actions were clouded by bias and his reason betrayed by prejudice." Finally, he summed up Judge Dudgeon's conduct in the matter as nothing less than "a disgrace."
Respondent offered no basis for these accusations apart from the fact that the judge had ruled against him and Respondent did not believe that he gave sufficiently detailed reasons for his rulings. This clearly is not sufficient justification for the harsh criticisms and other accusations leveled at the judge by Respondent. Moreover, Respondent himself admitted at the hearing that he crossed the line in the language that he used and that the motion never should have been written. We find that Respondent's statements in his motion were insulting, offensive, degrading and demonstrated a lack of respect for a judicial officer. We further find that they were made without any reasonable basis. Accordingly, based on the evidence as well as Respondent's own admissions, we find that Respondent violated Rule 8.2(a).
We also find that these same actions violated Supreme Court Rule 770. Unfounded attacks on the integrity and character of a judge, especially when made by an attorney, clearly have a tendency to bring the courts and the legal profession into disrepute by undermining the public's confidence in the judicial process. See In re Phelps, 55 Ill. 2d 319, 322-23, 303 N.E.2d 13 (1973). Since Respondent never actually presented this motion, however, we find that the Rule 8.4(a)(5) charge was not proven because there was no showing of any actual harm or prejudice to the case. See In re Storment, 203 Ill. 2d 378, 399, 786 N.E.2d 963 (2002); In re Vrdolyak, 137 Ill. 2d 407, 425, 560 N.E.2d 840 (1990).
Having found that Respondent engaged in misconduct, we must determine appropriate discipline. In making this recommendation, we take into account that the goal of the disciplinary process is not to punish the Respondent, but to safeguard the public, maintain the integrity of the profession, and protect the administration of justice. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). We also consider the nature of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). Although each case is unique and must be resolved in light of its own facts and circumstances, predictability and fairness require that we recommend sanctions that are consistent with those imposed in cases involving comparable misconduct. In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994).
In mitigation, we note that Respondent was licensed to practice law in 1988 and has not been involved in any other incidents of misconduct. Generally, the lack of prior discipline is a significant mitigating factor. See In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990). We recognize that Respondent has only been engaged in the practice of law during ten of the years since his admission to the bar. We nonetheless view this matter as an isolated incident and regard his lack of prior discipline as a significant mitigating factor.
Respondent's misconduct is also mitigated by the fact that it occurred while he was representing himself in his own legal matter. In addition, it arose in the context of a fee dispute that was solely between the various lawyers involved in the case. Thus, no client interests were
implicated and there was no evidence of any real public harm. See In re Towles, 98 Ill. 2d 179, 185-86, 456 N.E.2d 127 (1983).
We also give some weight in mitigation to the fact that Respondent's statements about Judge Dudgeon were made in the context of a motion for substitution of the judge for cause. As Respondent pointed out at the hearing, a motion of this nature necessarily invites some criticism of the judge because it requires that the movant make a showing of actual prejudice. See 735 ILCS 5/2-1001(a)(3); In re Marriage of Hartian, 222 Ill. App. 3d 566, 569, 584 N.E.2d 245 (1st Dist. 1991). While it is evident that Respondent went too far in his criticisms here, we believe that it is appropriate to take into account that he made the statements in a context which required him question the judge's impartiality. We also believe that it is mitigating that, while he filed the motion in court, he did not pursue the matter further and never brought the motion forth for a hearing.
Finally, we also find it significant that Respondent has acknowledged his misconduct and has taken responsibility for his actions. See Gorecki, 208 Ill. 2d at 369. Respondent readily admitted at the hearing that he crossed the line in the motion in his remarks about Judge Dudgeon. He conceded that, looking back on the matter now, he realizes that his statements were overly personal and too harsh and that the motion never should have been written. He apologized for his actions and expressed genuine and sincere remorse over his behavior. The fact that Respondent recognizes and appreciates the wrongfulness of his own behavior is significant for purposes of determining sanction because it is an indication that the misconduct is not likely to recur. See In re Mason, 122 Ill. 2d 163, 173-74, 522 N.E.2d 1233 (1988).
In aggravation, we give some weight to the evidence regarding Respondent's intemperate courtroom behavior during one of the hearings before Judge Dudgeon. Because this incident
was not alleged in the complaint or included in the charges, it cannot serve as a basis for a finding of misconduct. See Chandler, 161 Ill. 2d at 470. Uncharged misconduct, however, can be considered as an aggravating factor in determining sanction if it is deemed similar in nature to the underlying charges and if it was proven by the evidence. See In re Storment, 203 Ill. 2d 378, 786 N.E.2d 963 (2002). We believe that both of these elements have been established here. The testimony of Sergeant Hoffman as well as his contemporaneous report regarding the incident established that Respondent behaved improperly at the hearing by raising his voice, interrupting the judge's ruling, and throwing some papers towards the bench. It further showed that Respondent's behavior and his overall demeanor were of sufficient concern to Judge Dudgeon that he requested that additional security measures be implemented both at the courthouse and at his home. Respondent's actions are also similar to some of the misconduct charged in the complaint. Like the attacks and unfounded accusations contained in his motion to substitute, Respondent's courtroom behavior also evidenced a lack of proper respect for the courts and a judicial officer. See In re Elias, 114 Ill. 2d 321, 336-37, 499 N.E.2d 1327 (1986) (uncharged incidents considered in aggravation where they were illustrative of respondent's pattern and practice of commingling and conversion as charged in the complaint).
We note that the Administrator has also urged us to take into account in aggravation several additional factors, including certain actions taken by Respondent during the course of these disciplinary proceedings. These include the fact that he filed a lengthy motion to dismiss and a motion for sanctions and made an inaccurate statement in his answer concerning what had transpired in one of the underlying proceedings. We have reviewed these matters as well as all of the facts and circumstances in this case and we decline to consider them as aggravating factors. While factors such as these are sometimes cited as evidence of the respondent's overall
lack of cooperation in the disciplinary process, we do not believe that the record here demonstrates the kind of wide-ranging obstructionist behavior that is typically present where non-cooperation is considered in aggravation. See In re DiCaprio, 02 CH 8, M.R. 20152 (Sept. 26, 2005) (Review Bd. at 3, note 2).
With regard to sanction, the Administrator argues that the totality of Respondent's misconduct is sufficiently serious that it warrants a suspension for three years and until further order of the Court. While Respondent concedes that he acted improperly in connection with the Judge Dudgeon matter he argues that this misconduct at most warrants a censure.
We note initially that the Administrator's recommendation is based to a large extent on the assumption that all of the charges of misconduct alleged in the complaint were proven. Since we have found misconduct with regard to only one of these matters, we find many of the Administrator's arguments inapplicable.
We have also reviewed the cases cited by the Administrator in support of this sanction and believe that they are largely inapplicable for this same reason. In In re Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971), the respondent was suspended for two years and until further order of the court for initiating and maintaining numerous groundless and defamatory lawsuits against judges, lawyers and private citizens. In discussing the misconduct at issue, the Court described a series of 14 separate actions that were instituted by the respondent over the course of nearly ten year period against numerous different parties. In In re Denzel, 92 CH 114, M.R. 10694 (Mar. 27, 1995), the respondent was suspended for two years and until further order of the court for misconduct that included filing multiple suits against former clients for unwarranted legal fees and for filing petitions in several of those cases alleging bias and prejudice on the part of the judges in Cook County. In In re Kozel, 96 CH 50, M.R. 16530 (June 30, 2000), the respondent
was disbarred for an extensive pattern of misconduct that included multiple incidents where he made false and unfounded statements about various judges for the purpose of causing delay in proceedings. There were also several instances of additional misconduct including neglect, an attempt to practice law in a jurisdiction where he was not licensed, and communication of scurrilous and unfounded accusations about a public official. In In re Meyer, 95 CH 948, M.R. 18764 (Sept. 19, 2003), the respondent was disbarred based upon extensive pattern of wrongdoing which included 67 acts of misconduct. The findings included abuse of process and manipulation of the legal system by filing frivolous lawsuits and making false statements to the courts as well multiple acts of conversion of over $2 million in cash and property. Finally, in In re Segovia, 08 CH 54, M.R. 23076 (May 18, 2009), the respondent was disbarred based on misconduct that included multiple misrepresentations in connection with his handling of a real estate matter as well as unwarranted attacks and false accusations against the presiding judge. The respondent there also had recent prior misconduct and did not appear at the disciplinary proceeding.
While most of the Administrator's cases also included unwarranted attacks on the judiciary, almost all of them involved extensive or repeated patterns of this type of behavior or similar misconduct involving abuse of the legal process. Several also included additional misconduct or other aggravating factors that are not present here. Accordingly, we do not find any of these cases instructive with regard to sanction in this case where we have found only an isolated instance of wrongdoing on Respondent's part with regard to the Judge Dudgeon matter.
In contrast to the cases cited by the Administrator, review of additional precedent indicates that substantially less severe sanctions have been imposed where only a single incident of this type of misconduct is involved. After reviewing additional authority and taking into
account the particular facts and circumstances in this case, we conclude that that a censure is an appropriate sanction. We note in particular In re Harrison, 06 CH 36, M.R. 22839 (Mar. 16, 2009) and In re Barringer, 00 SH 80, M.R. 17621 (Sept. 21, 2001), which we believe are factually similar to this matter.
In Harrison, 06 CH 36, the respondent was censured for violation of Rules 8.2(a), 8.4(a)(5), and Supreme Court Rule 770 based on statements he made in several motions to continue a criminal trial and for certain courtroom behavior. In one motion he asserted that the proceedings were a "criminal court fiasco" and suggested that they might "necessitate criminal charges for obstruction of justice, malicious prosecution, and/or prosecutorial misconduct as well as conspiracy to do same by Circuit Court of Cook County, Criminal Division . . . ." He signed the motion "Indignantly Submitted." He subsequently filed an amended motion which also contained allegations concerning obstruction of justice, malicious prosecution, and prosecutorial misconduct. When he appeared in court and the judge set a trial date earlier than he requested, he began raising his voice, raised the motion over his head, and said loudly that he would "jam these pleadings down the throat of the record as much as I feel I need to." The judge held the respondent in direct contempt of court and had the sheriff remove him from the courtroom. He was returned to court an hour later and apologized, and the judge purged the contempt and dismissed the contempt proceedings. He later withdrew from the case. Mitigating factors included a lack of prior discipline and the fact that this was an isolated incident. In aggravation, the respondent had failed to express remorse for his actions or to recognize the seriousness of his misconduct.
In Barringer, 00 SH 80, the respondent was censured for filing a motion to substitute a judge for cause that contained statements about the judge that the respondent knew or should
have known were false. The motion alleged that the judge had applied for a loan at his client's place of business and that the application had been rejected due to the judge's "excessively high credit limits and outstanding obligations." It also alleged that the judge had improperly held his client in contempt for failing to meet certain financial obligations when he knew or should have known that such sanctions were "inappropriate considering [the judge's] own personal obligations." The motion also accused the judge of conducting an ex parte, in camera interview with his client's minor child. All of the foregoing statements were determined to be false. Another judge subsequently sanctioned the respondent, who had apparently relied on information from his client, for failing to make reasonable inquiry before filing the motion. The specific findings of misconduct included Rule 8.2(a), 3.3(a)(1), 1.2(f)(1), 8.4(a)(5), and Supreme Court Rule 771. Mitigation included a lack of any prior discipline, respondent's acknowledgement of his misconduct, cooperation in the disciplinary proceedings, and the fact that he had paid the sanctions.
We conclude that the facts of this case are sufficiently similar to both Harrison and Barringer to warrant a similar sanction here. Like this matter, Harrison involved unfounded accusations in a motion directed at the court as well as some improper courtroom behavior. Harrison was arguably even more serious than this case because the respondent's courtroom behavior was part of the misconduct charged and was sufficiently serious that it led the judge to hold him in contempt. Moreover, unlike Respondent, the attorney there did not acknowledge his wrongdoing or express remorse. Barringer is also analogous because it too involved false statements about a judge that were contained in a motion to substitute for cause. The mitigating factors there were also similar to those in this case.
In addition to a censure, we are also recommending that Respondent be required to complete the ARDC Professionalism Seminar. We note that Respondent is not currently registered and has indicated that he is not engaged in the practice law. In the event that he decides to practice in the future, however, we believe that it would be beneficial to him and to the public if he is required to complete the ethics course. We base this recommendation on the nature of the Respondent's misconduct as well as the fact that he has spent a substantial period of time away from the practice of law since his admission to the bar. We believe that a course to remind Respondent of his ethical obligations would assist him in avoiding misconduct in the future and would further protect the public and the profession.
For the foregoing reasons, we recommend that Respondent, Brian Christopher Witter, be censured and be required to complete the ARDC Professionalism Seminar before he is allowed to resume practicing law.
Date Entered: April 11, 2011
|Joseph A. Bartholomew, Chair, James L. Farina and Donald D. Torisky, Hearing Panel Members.|