Filed January 18, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
GEORGE CHARLES RANTIS,
Commission No. 09 CH 65
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on July 19 and 20, 2010, at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a panel consisting of Michael C. Greenfield, Chair, Robert D. Smith and Robert M. Karton. Tracy Kepler represented the Administrator. Respondent George Charles Rantis appeared and was represented by Mary Robinson.
On August 19, 2009, the Administrator filed a four-count Complaint against Respondent. Counts I and II alleged Respondent engaged in a conflict of interest while representing a client in divorce proceedings, Count III alleged he failed to correct false statements made to a court, and Count IV alleged he offered false evidence to a court and failed to advise judges of information that could impact their decisions.
On September 15, 2009, Respondent filed his Answer to the Complaint, in which he admitted some of the underlying facts regarding his representation of the specified clients and the court proceedings in their cases, but denied engaging in any professional misconduct.
The Administrator presented seven witnesses, including Respondent, and submitted forty-six exhibits which were admitted into evidence. Respondent testified on his own behalf, presented three witnesses and an evidence deposition, and submitted twenty exhibits which were admitted into evidence.
Counts I and II
From the mid-1970s to 2009, Respondent provided legal advice and counseling to Napoleon and Alexandra Kanaris relating to their commercial real estate located at 800-808 and 838 West Randolph in Chicago. In addition Respondent maintained a social relationship with the Kanarises, including joining them for lunches and, after Napoleon's death in 2001, having occasional dinners with Alexandra.
In 1998, the Kanaris's son, Nick Kanari, married his second wife, Renee. Respondent had a social relationship with Nick and Renee and periodically had lunch with them at their home. Respondent provided legal advice and counseling to Nick Kanari prior to and after 2005, including the incorporation of a motion picture production business, the review of contracts related to Nick's real estate investment ventures, partnership disputes, and forcible detainer actions related to the commercial properties on West Randolph. Respondent also represented Eli and Serena, Nick's children from his first marriage, in criminal misdemeanor charges.
On July 7, 2005, Renee Kanari, through her attorney, filed a petition for dissolution of marriage in the Circuit Court of Cook County against Nick. Renee's interests in the divorce matter were materially adverse to those of Nick.
On July 8, 2005, Respondent filed his appearance on behalf of Nick Kanari. Thereafter, Renee and Nick Kanari reconciled and on November 2, 2005, the Court entered an agreed order dismissing the divorce action brought by Renee.
On March 31, 2008, Renee, through her attorney, again filed a Petition for Dissolution of Marriage against Nick. Renee's interests in the divorce case were materially adverse to those of Nick.
On or about April 3, 2008, Nick requested Respondent represent him in the divorce matter and Respondent agreed to do so. Thereafter filing his appearance in the matter on behalf of Nick. On May 3, 2008, the case was transferred to Judge Daniel J. Sullivan of the Third District for the Circuit Court of Cook County in Rolling Meadows, Illinois.
Renee Kanari testified she met Nick Kanari in 1990, and they married in 1998. Six children were born of their marriage. (Tr. 32-33).
Renee stated Nick and his father owned real estate, and she assisted them in their business by performing clerical and accounting-type work. She was neither an officer nor an employee of the business, but acted more as an agent. Renee did not have an ownership interest in the real estate business, but did have an interest in a restaurant Nick unsuccessfully attempted to open. For most of Renee and Nick's marriage, their income came from rental properties. (Tr. 33-34, 55, 65).
Renee first met Respondent when she was dating Nick. When she handled the paperwork for Nick and his father's real estate business, she sometimes spoke to Respondent regarding leases and faxed him financial information. (Tr. 33-34, 55-56).
Renee testified that during her marriage to Nick, Respondent knew their financial condition because he represented them in the purchase of real estate in Florida, Wisconsin and Illinois, and she often faxed him information regarding their finances. She acknowledged she was not an owner of record for any of those properties, other than a condo on Perrie Drive in Elk Grove Village, but she had a marital interest in the properties and believed Respondent was representing her and her husband. She recalled speaking to Respondent when she and Nick purchased the Perrie Drive condo, but did not talk to him regarding their attempt to sell it. Renee stated Respondent also assisted them when Nick attempted to open a bar, and she was an officer of the corporation established in connection with that operation. After a dispute arose between Nick and his sister over the management of family affairs, Renee and Nick gave Respondent their financial records relating to the properties owned by Nick's mother and leased by Nick. Renee's name was not on the title to those properties, nor was it on any leases. (Tr. 38-39, 61-65, 80, 85).
Renee stated that after Nick's father died, Nick stepped in to take over more of the operation of the family business. After that time Respondent periodically had lunch at Renee and Nick's home, at which time they would discuss social and business matters. Respondent also attended Nick's fiftieth birthday party and the baptism of one of their children. (Tr. 40-42, 54).
Renee testified that during her marriage to Nick, she was represented by Respondent in connection with a dispute over a condo she leased prior to her marriage. Renee recalled providing the lease and court documents to Respondent, along with information about her place of employment. Respondent gave her legal advice, entered an appearance and appeared in court on her behalf, but then withdrew from the case before any action was taken. Renee stated she
did not pay Respondent for his representation, and did not sign an attorney-client agreement. She further stated it was not customary for her or her husband to sign agreements for Respondent's services; rather, he was paid on a monthly basis for representing Nick or the family in various matters. (Tr. 36-37, 57-59, 84-85).
When Renee was asked to examine a 1995 court file of a case filed against her by Mary Jo Green, she identified it as the condo dispute for which Respondent entered an appearance on her behalf. Neither the docket sheet nor any of the documents in the file contain any reference to Respondent. (Tr. 58-60; Resp. Ex. 17).
In 2005, Renee filed for divorce from Nick and was represented in that action by John Vojta. Nick, who was also charged with domestic violence in a criminal case, was represented in both matters by Respondent. Renee stated that prior to the time Respondent filed his appearance on Nick's behalf, he never informed her he had agreed to represent Nick. She stated she was uncomfortable with the situation and felt betrayed because Respondent knew everything about her and her finances. She did not voice any concerns at the time, however, because she had no knowledge Respondent's actions were unethical. Renee stated she and Nick ultimately reconciled. (Tr. 41-43).
In 2008, Renee instituted divorce proceedings against Nick for a second time. She was initially represented by John Vojta, and Nick was represented by Respondent. Respondent did not inform Renee he would be representing Nick, nor did he ask her if she had any objection to his representation of Nick. She stated she was bothered by the fact Respondent was representing Nick, and felt angry and betrayed when Respondent told her attorney she had stolen money from her father, but she acknowledged Respondent had received the information from Nick, and not from her. (Tr. 43-45, 65).
John Vojta, an attorney since 1982, testified he is a sole practitioner specializing in family law. He represented Renee Kanari in a 2005 divorce proceeding against Nick Kanari, who was represented by Respondent. That action was dismissed in November 2005 after the parties reunited. (Tr. 294-95; Adm. Exs. 5, 6).
Vojta stated that in 2008 he again represented Renee when she initiated another divorce proceeding against Nick. One of the primary issues at that time was the lack of sufficient income to pay household bills. The case was before Judge Sullivan and Nick was represented by Respondent. (Tr. 297-98).
Vojta recalled entering into various agreements with Respondent during the 2005 and 2008 divorce proceedings and stated he never had trouble relying on Respondent. He did not recall Renee expressing any objection to Respondent representing Nick in the divorces, nor did Vojta have a concern about Respondent representing Nick. Vojta never observed Respondent taking action antagonistic to Renee based on information he received from her during any prior representation. Vojta recalled knowing Respondent had represented Nick and Nick's parents, but testified Renee never told him Respondent had done legal work on her behalf. (Tr. 312-14, 317).
Regarding the 2008 divorce, Vojta had a concern Nick's mother might have control of the assets and income. He advised Renee that Respondent's familiarity with the family could work to her advantage because he might be able to reason with the mother, whereas a complete stranger might not have that ability. Vojta did not believe he had enough information regarding Respondent's prior representations to form a conclusion as to whether Respondent could be disqualified from representing Nick in the divorce action. He did not recall telling Renee
Respondent might have a potential conflict because of his prior representation. (Tr. 317, 319, 322, 324).
Respondent testified he is 72 years old and was licensed to practice law in 1966. Other than one year with a firm and four years with the Public Defender's office, he has been a sole practitioner. He is married and has three adult children. (Tr. 394-95).
Respondent testified Carlos Rodriguez shared office space with him for five or six years. Rodriguez handles criminal matters, real estate, and some domestic relations work. In lieu of rent, Rodriguez gives Respondent three hours of work each month and bills him for any additional time. (Tr. 379; Adm. Ex. 46).
Respondent stated he began representing Napoleon Kanaris in the early 1970s. Over the years he handled real estate closings, negotiated and drafted lease agreements, collected rent from delinquent tenants, may have filed forcible detainer actions, and assisted Napoleon and his wife Alexandra in obtaining their United States citizenship. Other attorneys performed legal services for Napoleon as well. Respondent testified he has never entered into a formal attorney/client agreement with members of the Kanaris or Kanari family, and they have never had any disputes over fees. (Tr. 369-70, 406-10, 489).
Respondent stated he has known Nick Kanari from the time Nick was a child. Respondent first represented Nick when Nick and Renee were dating, and Nick wanted to open a tavern in one of his father's buildings. Respondent assisted him in trying to obtain a liquor license, but learned Nick could not hold a license because he was not an American citizen. Respondent also represented Nick and two other individuals with respect to the purchase of property in Florida and handled the closing on an investment property Nick and another
individual purchased in Wisconsin. Renee was not a part of those real estate transactions. (Tr. 410-13).
Nick leased three buildings on West Randolph Street from his father for a total of $500 per month, and then rented those properties. Respondent periodically drew up leases for Nick, may have handled forcible detainer actions for him, and handled the transfer of properties from Nick's mother to Nick. (Tr. 408-09, 414-17, 490).
Following Napoleon's death in 2001, Respondent would have lunch at Nick and Renee's house two or three times a year, during which time Nick asked questions about his investments. Although Renee was present for those lunches, she did not sit down with Nick and Respondent, and did not participate in their discussions. Respondent stated the only times he socialized with Renee and Nick was when he attended the baptism of their youngest son and on Nick's fiftieth birthday party. (Tr. 373-74, 413).
Respondent understood Renee handled the books for the family and wrote checks for the business. He acknowledged she knew more about their properties than he did. At times Respondent asked Renee for financial information. (Tr. 375-76).
Respondent acknowledged filing an appearance on behalf of Renee in November 2003 in a case involving her alleged failure to properly withdraw from an option to buy a condo, but stated he has no independent recollection of that representation. In March 2004, he was granted leave to withdraw from that case. Respondent reviewed a court file pertaining to an earlier case brought against Renee by Mary Jo Green for unlawful possession of property and past due rent. Respondent denied he represented Renee in that case or filed an appearance on her behalf, although he may have talked to her about it. (Tr. 377-78, 419-21; Resp. Ex. 17).
Respondent testified he represented Nick in the purchase of a condominium at 655 Perrie Drive in Elk Grove Village, and identified documents from September 2005 and January 2006 relating to the closing of that property. Respondent stated at the time he began the representation, the condo was meant to be an investment and Renee was not intended to be an owner of the property. At the closing, however, Renee's name was added to the deed, probably at the insistence of the lender, and the parties to the transaction had to wait for Renee's arrival. Prior to the closing, Respondent had never talked to Renee about the purchase of the property. (Tr. 421-23; Resp. Ex. 20).
In August 2007 Renee and Nick entered into a contract for the sale of the Perrie Drive condominium to Dariusz Ziembinski. Respondent denied drafting the real estate contract, but acknowledged his name is listed on the contract as the seller's attorney, and his officemate, Carlos Rodriguez, is listed as the purchaser's attorney. When the purchaser could not secure financing, the sale was aborted and Respondent signed a cancellation agreement on behalf of the sellers. Respondent did not recall ever speaking to Renee regarding the attempted sale of the condominium. (Tr. 376-77, 424; Adm. Exs. 8, 9).
Respondent testified that in 2005 Renee sought an order of protection against Nick and filed a petition for dissolution of marriage. Respondent entered his appearance on behalf of Nick in both proceedings. Ultimately, the parties got back together, the order of protection was vacated, and the dissolution proceedings were dismissed. Prior to the dismissal, Renee never voiced any objection to Respondent's representation of Nick, either personally or through her lawyer. (Tr. 424-26; Adm. Exs. 1-7).
On March 31, 2008 Renee again filed for a divorce against Nick. Respondent appeared on behalf of Nick in that action. (Tr. 428-29).
Counts III and IV
Sylwia Murwaska was employed to serve as a nanny for the six children of Renee and Nick Kanari. In 2006 Sylwia married Dariusz Ziembinski. Unbeknownst to Renee Kanari and Dariusz Ziembinski, Sylwia and Nick Kanari had been engaging in a sexual relationship since approximately July 1, 2005. On January 9, 2008, Sylwia gave birth to a son, Constantine.
On or about March 7, 2008, Nick contacted Respondent and informed him Sylwia would be calling him to discuss her options in pursuing a divorce from Dariusz. Shortly after Nick's call, Sylwia contacted Respondent and requested a meeting.
On or about March 8, 2008, Sylwia and Respondent met for a consultation regarding her divorce from Dariusz. At that time, Sylwia expressed concern for her and Constantine's well being due to the alleged recent violent actions of Dariusz. Respondent suggested Sylwia file a petition for dissolution of marriage and proceeded to request information from Sylwia to draft the petition. Based on the information provided by Sylwia, Respondent prepared a petition which stated one child, Constantine, was born to the parties as a result of the marriage, and that at all times during the marriage, Sylwia conducted herself as a "true, affectionate and dutiful wife" towards Dariusz. The petition requested Dariusz be ordered to pay "temporary and permanent child support, extracurricular activities, all education, dental and medical as and for" Constantine. Sylwia signed the document, verifying the facts contained within the petition were true and correct. At no time during the March 8, 2008, consultation did Sylwia indicate she and Nick had been having an affair or that there was a question as to the paternity of Constantine.
Respondent also suggested to Sylwia she file a petition for an emergency order of protection against Dariusz on the next available court date of March 10, 2008. Respondent told
Sylwia he would not be able to attend the hearing, but would request his officemate, Carlos Rodriguez, meet with her, draft the petition and act for Respondent in representing her interests at the hearing in Respondent's absence.
On March 10, 2008, Rodriguez met with and interviewed Sylwia, and drafted an emergency order of protection on her behalf. Following the meeting, Rodriguez filed the emergency petition, as well as the petition for dissolution of marriage, drafted by Respondent. Respondent was listed as counsel of record for Sylwia on both petitions. At the ex-parte hearing on the emergency order of protection held that same day before Judge Samuel J. Betar, III, Sylwia testified Dariusz was Constantine's father. Following the testimony, Judge Betar entered an interim order of protection.
On April 21, 2008, Judge Betar entered an agreed interim order of protection which directed, among other things, that Dariusz pay Sylwia $100 per week as temporary support for Constantine. On May 19, 2008, Judge Betar entered an order requiring Dariusz to provide copies of his most recent pay stubs and his current health insurance card for purposes of determining child support and to ensure medical coverage for Constantine.
In late May 2008, while attempting to settle the divorce matter, Dariusz's attorney suggested to Respondent that Nick might be Constantine's father. Immediately thereafter, Respondent contacted Nick and requested Nick and Sylwia meet with him to discuss Constantine's paternity. A meeting occurred in or about the first week of June 2008, and at that time Nick and Sylwia informed Respondent a possibility existed that Constantine was Nick's son, they had taken a paternity test in March 2008, and they had not received the results because they did not have the funds to pay for the testing. Respondent advised Nick and Sylwia to pay for the results of the paternity test as soon as possible.
On or about June 10, 2008, Nick and Sylwia had another meeting with Respondent, at which time they provided him with the report reflecting that Nick was the father of Constantine. As of that time, Respondent knew Nick was the father of Constantine. At the meeting Respondent informed Nick and Sylwia that Dariusz had no obligation to support and provide for Constantine; any monies expended by Dariusz on behalf of Constantine must be reimbursed; a petition to establish parentage must be filed based on the paternity results and Nick declared the father of Constantine; and the presumption Constantine was the result of Dariusz and Sylwia's marriage must be rebutted. Respondent also advised Nick and Sylwia that since he represented each of them in separate matters, a conflict of interest existed and he could not represent either of them in the parentage action.
Nick informed Respondent he was not disputing the results of the paternity test, he did not need representation, and he would proceed pro se in any parentage action. At Nick's request, Respondent agreed to represent Sylwia, and Nick agreed to pay Respondent a flat fee of $2,000 for representing Sylwia, in the parentage action.
On July 9, 2008, Respondent caused to be filed a complaint to determine the existence of a parent-child relationship. The matter was assigned to Judge Alfred Levinson, and a hearing was scheduled for July 24, 2008. Also on July 9, 2008, Respondent caused to be filed Nick's pro se appearance in the parentage action. Respondent drafted the appearance and paid the appearance fee on behalf of Nick. On that same date, Nick paid Respondent $1,000 toward Sylwia's total fee owed in the parentage action.
Pursuant to the Illinois Parentage Act of 1984, 750 ILCS 45/9.1, in any complaint to determine the existence of a parent-child relationship, a notice of the action must be served on
the presumed father in the same manner as summonses are served in other civil proceedings. Respondent did not serve notice of the parentage action on Dariusz and/or his counsel.
On July 24, 2008, Respondent, Sylwia and Nick appeared before Judge Levinson for a hearing in the parentage action. At that time, the following orders, prepared by Respondent, were entered: (1) an agreed order of parentage adjudicating Nick as the father of Constantine and changing Constantine's surname to Kanari; (2) a uniform order for support reflecting Nick's monthly income of $13,000, and directing Nick to pay child support in the amount of $2,600 per month, to begin instanter, and all medical expenses, and should Nick be delinquent in his payments, a $520 per month payment in addition to the $2,600; and (3) an agreed order directing Nick to provide medical insurance to Constantine and that Nick make the child support payments directly to Sylwia. Respondent did not advise Judge Levinson before or during the July 24, 2008, hearing that he represented Nick in Nick and Renee's dissolution of marriage proceeding pending before Judge Sullivan; that he represented Sylwia in Sylwia and Dariusz's divorce proceeding pending before Judge Betar; or that Judge Betar had entered a support order on April 21, 2008, directing Dariusz to pay support and medical expenses to Constantine.
Between June 10, 2008, and December 8, 2008, there were five status dates held in Sylwia and Dariusz's divorce proceeding before Judge Betar, at which times the matter was continued, and the interim order of protection against Dariusz was extended and the support order upheld. At no time prior to December 8, 2008, did Respondent advise Judge Betar of the existence of the July 24, 2008, support order entered in the parentage action between Nick and Sylwia.
Between June 10, 2008, and December 12, 2008, Renee and Nick's divorce case was before Judge Sullivan on eight occasions. At various times on those occasions custodial and
financial issues, including child support, were considered and on August 7, 2008 an agreed order of support was entered providing that Nick was responsible for all the marital monthly expenses and $1,000 a week to Renee for child support.
On December 8, 2008, Respondent caused to be filed in Sylwia and Dariusz's divorce proceeding a pre-trial memorandum on behalf of Sylwia, with Sylwia's income and expense affidavit attached thereto. The first two pages of the affidavit prepared by Respondent were blank and did not list any income or expense information. On or prior to December 8, 2008, Respondent knew of the July 24, 2008, support order entered in the parentage action that provided Sylwia with $2,600 per month in child support income for Constantine.
Testimony Regarding Sylwia/Dariusz Divorce
Samuel Betar, an associate judge in the domestic relations division of the Circuit Court of Cook County, testified he presided over the divorce proceedings between Sylwia and Dariusz. Judge Betar did not recall meeting Respondent prior to that time. (Tr. 102-03, 124).
Judge Betar testified Sylwia's petition for dissolution of marriage, filed by Respondent, falsely alleged she had a child born of her marriage to Dariusz. Judge Betar did not know if Respondent knew at the time of filing that Dariusz was not the father of the child. (Tr. 131-32).
Judge Betar identified the petition for an emergency order of protection filed by Sylwia against Dariusz on March 10, 2008. The report of proceedings on that motion indicates Sylwia was represented by Respondent and Carlos Rodriguez, but Judge Betar had no recollection if Respondent was in court that day. During the hearing, Sylwia testified she had a son, Constantine, with her husband Dariusz. With respect to the April 21, 2008, agreed order of protection, which set visitation and directed Dariusz to pay temporary support of $100 per week,
Judge Betar stated that after the order was entered, Dariusz was legally bound to make the payments, and the order could be enforced. (Tr. 103-08, 124, 132; Adm. Exs. 13, 15, 22).
Judge Betar identified four court orders entered between July 14, 2008, and September 30, 2008, each of which continued the case to a new date. The manner in which the orders were completed, with Respondent's handwritten name and address at the bottom of each order, suggests he was present. Judge Betar stated the support order was not modified on those dates, and Respondent did not advise him (1) Dariusz was not paying support, (2) a complaint had been filed to determine Constantine's parentage, (3) a support order relating to Constantine had been entered by Judge Levinson, or (4) Nick was living with Sylwia. Judge Betar acknowledged he was not aware of conversations that may have occurred between the attorneys at that time, or that they had exchanged correspondence about the paternity of Constantine. (Tr. 109-11, 138, 148; Adm. Ex. 31).
Judge Betar testified that the first time he discussed the issue of Constantine's paternity was with Judge Levinson in December 2008. On December 8, 2008, he questioned Respondent about the paternity action and support order entered by Judge Levinson. Respondent acknowledged for the first time that two orders of support existed for the same child, but stated Dariusz had made only two payments, and those payments would be returned. Judge Betar then entered an order terminating the order of protection which had been entered against Dariusz. On that same date he entered an order directing Sylwia, Dariusz and Constantine to submit to genetic testing through the court system. Judge Betar stated he did not want to rely on the previous paternity test, which had been conducted by a private testing agency. (Tr. 111-15, 147, 149; Adm. Exs. 31, 40).
With respect to Respondent's December 8, 2008, pre-trial memorandum and attached income and expense affidavit, which did not list income for Sylwia, Judge Betar stated that income from child support should be listed and is one of the factors he considers in deciding issues of division of property, maintenance and child support. Typically if a petitioner is not seeking support, the income and expense statement is not filed. Judge Betar acknowledged that if an order of child support were vacated prior to the filing of the memorandum, he would not expect to see child support included as income in the memorandum. (Tr. 116-17, 141; Adm. Ex. 33).
Respondent's pre-trial memorandum also included a form regarding "Custody, Visitation & Child Support." In the space after each request for information about children, a handwritten "N/A" appears. A "Description of Disputed Issues" states Sylwia was to reimburse Dariusz for child support and medical expenses relating to Constantine. (Tr. 140-41; Adm. Ex. 33).
Dariusz's pre-trial memorandum, filed on December 8, 2008, reflects he was requesting reimbursement of the medical and child support payments he made for Constantine after the test results indicated he was not Constantine's father. Judge Betar agreed he could assume from that document that Dariusz's attorney knew Constantine was not Dariusz's child. He stated that while the pre-trial memorandum was filed and was part of the record, he did not recall having a pre-trial conference and he probably would not have reviewed the memorandum. (Tr. 144-45, 150; Adm. Ex. 11).
Judge Betar recalled that genetic testing indicated Dariusz was not the father of Constantine. On January 22, 2009, an order was entered which stated Dariusz was not the father of Constantine, Sylwia had to reimburse Dariusz for two months of support payments, and
Respondent was allowed to withdraw as counsel for Sylwia. The parties came to an agreement and the divorce was finalized. (Tr. 117-18; Adm. Ex. 44).
Sometime in late December 2008, Judge Betar decided to report Respondent's conduct to the ARDC. He was concerned neither he nor Judge Levinson had been informed by Respondent of the existence of the other cases, even though Respondent appeared in both, and as a result two court orders required two different men to pay child support at the same time for the same child. Judge Betar stated the issue should have been raised in the petition for dissolution of marriage or in an amended petition so the issue could be dealt with in an appropriate manner. At the time Respondent's conduct was reported to the ARDC, Judge Betar did not know Respondent had talked to Dariusz' lawyer about the fact Nick was Constantine's father or that the lawyers had entered into an agreement that Dariusz would stop paying child support. If he had known of the agreement, his concern about double support payments would have been drastically lessened. (Tr. 118-21, 126-28).
Judge Betar was also concerned Respondent had a conflict of interest because he was representing Sylwia against Nick in the parentage action and representing Nick in another action. He acknowledged he did not know if either client had been advised of or waived the conflict. (Tr. 121, 125).
Another item of concern for Judge Betar was the order of protection he entered that favored Sylwia over Dariusz. Judge Betar was not comfortable with the fact that Dariusz had to vacate the marital residence and pay child support for Constantine, after which Nick, who was Sylwia's paramour and the father of her child, had moved into the marital home. He testified he did not know Nick owned the residence. (Tr. 120, 126).
Judge Betar stated a letter to the ARDC was initially drafted by Judge Levinson. Judge Betar reviewed the letter and made some revisions, and then he, Judge Levinson and Judge Sullivan signed it. The letter was based on what they knew at the time about the various cases, and they were not privy to conversations or agreements between Respondent and the parties or other attorneys. After receiving Respondent's response to their letter, they submitted a reply which had been redrafted, at Judge Betar's request, to reflect some of the opinions and conclusions were held only by Judge Levinson. (Tr. 122, 126, 141, 143, 145; Adm. Ex. 19).
Walter Zarnecki, an attorney since 1985, testified he is a sole practitioner who maintains a general practice in Chicago. He represented Dariusz Ziembinski in Dariusz's divorce from Sylwia Murwaska, and met Respondent in connection with that case. (Tr. 334-35).
Regarding the April 21, 2008 agreed order of protection, which provided, among other things, that Dariusz would pay temporary support of $100 per week to Sylwia, Zarnecki stated his client made seven support payments and also paid for clothing, furniture, and medical insurance for Sylwia's baby. (Tr. 336-37, 350; Adm. Ex. 22; Resp. Ex. 1).
In June 2008, Zarnecki learned from Dariusz that Nick Kanari was the father of Sylwia's baby. Zarnecki immediately informed Respondent, who said he would investigate the matter. At that point, Dariusz stopped making support payments to Sylwia. Zarnecki stated he and Respondent had an informal, or perhaps unspoken, agreement for the cessation of payments, and believed they may have discussed Sylwia returning the support payments Dariusz had already made. (Tr. 339-40, 350; Resp. Ex. 1).
On or about June 27, 2008, Zarnecki received from Respondent a proposed Judgment for Dissolution of Marriage and Marital Settlement Agreement for prove-up on July 14. The
proposed judgment recited a child had been born to the parties "but not by this marriage." On July 5, 2008, Zarnecki sent a letter to Respondent asking for a copy of the DNA test results and suggesting the prove-up date might have to be continued if all matters were not finalized by July 14. On July 14, the case was continued to August 7, 2008. Sometime around the end of July 2008, Zarnecki received the DNA report from Respondent. (Tr. 340-42, 355-57; Adm. Ex. 31; Resp. Exs. 2, 3, 5).
Dariusz's case was continued on August 7, 2008, and again on September 18, 2008. Zarnciki stated the parties were working on resolving issues and on September 25, 2008, he sent Respondent a letter outlining reimbursements owed to his client by Sylwia. Zarnecki did not believe he appeared in court on the dates the case was continued because Respondent had offered to appear and obtain the orders. Zarnecki testified he was aware of the parentage action between Nick and Sylwia because, during one of their telephone conversations, Respondent had informed him of the filing. (Tr. 341-44, 357-58; Adm. Ex. 31; Resp. Ex. 6).
Sometime around the end of November 2008, Zarnecki received a call from Renee Kanari's attorney, Linda Olson, informing him Respondent was trying to use a support order in the parentage case as a set off in Nick's divorce case. Olson did not anticipate any problems for Dariusz, and they did not discuss Dariusz's support payments to Sylwia. (Tr. 359-60).
On December 8, 2008, Zarnecki filed a pretrial memorandum listing the expenses Dariusz had paid for Sylwia's child. He stated Respondent had agreed reimbursement would be made for the expenses, but the specific amounts still had to be discussed. At the court hearing on that date, Zarnecki sought to have the support order against Dariusz modified. Respondent handed Zarnecki and Judge Betar a copy of the order of support that had been entered in the parentage action and, after reviewing it, Judge Betar entered an order directing Sylwia and Nick
to submit to DNA testing. Zarnecki stated he had not seen a copy of the support order in the parentage action prior to December 8, 2008. (Tr. 344-45, 361; Adm. Ex. 40; Resp. Ex. 11).
On January 22, 2009, after the DNA test results had been received, and pursuant to Zarnecki's motion, Judge Betar vacated the order of support previously entered against Dariusz, and ordered Sylwia to reimburse Dariusz for two payments that had been made. Zarnecki acknowledged that the reference in the order to "two" payments was based on a mistaken assertion in his own motion and, in fact, seven payments had been made. (Tr. 348, 351; Adm. Ex. 44; Resp. Ex. 12).
Respondent testified Sylwia first consulted him about a divorce shortly after her marriage to Dariusz, but he advised her to try to resolve her issues and she did not pursue a divorce at that time. Two years later, in 2008, they spoke again and on March 10, 2008, he filed a petition for dissolution on her behalf. Respondent alleged in the petition that a child was born of the marriage, and had no reason to believe that statement was not true. At that time he had no knowledge of the affair between Sylwia and Nick, and had no reason to ask if Sylwia had been unfaithful. Similarly, he had no reason to ask Nick if he was having an affair, and felt the subject was none of his business. (Tr. 383, 426-27, 492-93).
Several weeks later, on April 21, 2008, Respondent's officemate, Carlos Rodriguez, appeared in court on behalf of Sylwia, and Judge Betar entered an order of protection directing Dariusz to pay support of $100 per week to Sylwia. Respondent testified that sometime thereafter he was informed by Dariusz' attorney, Walter Zarnecki, that Nick was the father of Sylwia's baby. Respondent immediately called Nick and then met with him and Sylwia that day or the next day. When Nick acknowledged he had taken a paternity test and could be the baby's
father, Respondent directed them to obtain the results. On or about June 10, 2008, when Respondent received the test results from Nick and Sylwia, he "read them the riot act" for not informing him sooner and then advised them the financial support of the child was Nick's responsibility and Dariusz's support payments should be returned to him. (Tr. 429-32).
After Nick and Sylwia left, Respondent called Zarnecki to advise him Dariusz was not the father of Sylwia's child, Dariusz should not make any further payments, and a parentage action would be filed. The parties did not enter into any written agreement, nor did they go to court to modify the temporary support order. (Tr. 436-37, 495, 501).
Respondent acknowledged he did not give a copy of the parentage complaint or order to Judge Betar prior to December 8, 2008. On that date, a pretrial hearing occurred in Sylwia and Dariusz's divorce case, at which time Respondent filed a pretrial memorandum he had begun preparing a week or two earlier. The pretrial memorandum included an income and expense affidavit which listed no income for Sylwia. He stated payments from Dariusz to Sylwia were not included because Respondent and Zarnecki had agreed the previous June that Dariusz would cease making any payments. Payments from Nick to Sylwia were not included because Judge Levinson had vacated the support order in the parentage case. Neither party was asking for support from the other, and Sylwia had agreed to reimburse Dariusz for expenses relating to the baby. Respondent drafted a proposed judgment and settlement agreement, which had no provisions for child support or custody. (Tr. 387, 483-87; Adm. Ex. 33).
Testimony Regarding Sylwia/Nick Parentage Action
Alfred Levinson, a judge of the Circuit Court of Cook County since 2005, testified he presides over all types of cases, and has heard parentage cases since 2005. Judge Levinson
testified Sylwia's parentage complaint was filed on July 9, 2008 and the parties appeared before him for the first time on July 24, 2008. Respondent represented Sylwia, and Nick appeared pro se. (Tr. 153-56).
The form used for a parentage complaint allows a petitioner to mark boxes indicating whether the mother "was married" or "was not married" at the time the child was conceived, and whether the child lived with the "the mother" or "other: ___." On a copy of Sylwia's parentage complaint taken from the court file, the box next to "was married" was marked, as was the box next to "the mother." (Tr. 188, 192; Adm. Ex. 25).
Judge Levinson stated he reviews each parentage complaint and, in particular, looks at the marital status of the mother and the party with whom the child resides. He conducts a careful review of the pleading even if no issues are in dispute, and sometimes corrects errors or adds information. (Tr. 157, 226).
Judge Levinson testified he had no independent recollection of having looked at Sylwia's complaint, but thought the box next to "was not married" had been checked when he reviewed it prior to the July 24, 2008, court date,. He stated that if the mother is married at the time of conception, her husband is the putative father and has to be given notice of the proceedings. Therefore, he would not have entered any orders without the putative father being brought into the case. (Tr. 157-58, 194, 223-25).
On July 24, 2008, no testimony was taken because Nick admitted he was the father of Sylwia's child. With respect to support for the child, Judge Levinson testified there was no discussion regarding prior orders of support. Respondent did not inform the court he was representing Nick and Sylwia in two separate divorce actions, that Nick had six children with his wife, or that Nick was living with Sylwia. Judge Levinson stated he would have considered that
information because Nick's obligation to his other children would reduce his income for purposes of support, and Sylwia's husband would be presumed to be the father of her child. If he had known Nick was living with Sylwia and supporting her, he would not have entered a child support order. Once a support order is entered, the parties cannot modify or nullify it without court intervention. Judge Levinson testified Respondent was not required by statute to inform him of his representation of Nick in a divorce action, or of the existence of any prior orders of support, but he believes the truth should always be brought to a court's attention. (Tr. 159-62, 165-66, 194-95).
Judge Levinson entered an agreed order of parentage on July 24, 2008, which stated Sylwia testified in person, Nick admitted parentage, and Nick was adjudicated the natural and biological father of Constantine. An order of support was also entered at that time, ordering Nick to pay $2600 per month in child support, based on his monthly income of $13,000. Judge Levinson filled out part of the order, and Respondent filled out part. A third order provided Nick would pay the $2600 directly to Sylwia, and Nick would provide medical insurance for Constantine. (Tr. 158, 164-65; Adm. Exs. 27, 29).
Judge Levinson stated the case was not before him again until November 2008, when he received an emergency motion from Linda Olson, the attorney for Nick's wife in Nick's divorce action, asking to intervene in the parentage action and to have the orders of July 24, 2008, vacated. One of the bases for Olson's assertion of an emergency motion was her concern Renee was unable to support herself and her children. (Tr. 166, 184; Adm. Exs. 35, 36).
After receiving Olson's motion, Judge Levinson reviewed Sylwia's parentage complaint in the court file and noticed the box next to "was married" was filled in, and the box next to "was not married" had been "whited out." When he held the paper up to the light, he could see the
box next to "was not married" had been marked before white-out was applied. He concluded, therefore, a change had been made after his initial review of the complaint. He stated he would not have let the case go through if he knew Sylwia was married at the time of conception. (Tr. 187-90, 194, 224-25).
On cross-examination, Judge Levinson was asked to examine a copy of the parentage complaint from Respondent's file, which bore an original blue file stamp, affixed by the Court Clerk at the time of filing. He acknowledged it appeared to be a copy of the page on which the box next to "was not married" had been whited out. The time stamps on the copy of the complaint from the court file and the copy of the complaint from Respondent's file were within minutes of each other, and both bear a mark in the box next to "was married." Judge Levinson said he did not know how Respondent's copy could have contained the whiteout revision at the time it was filed, and stated he has never understood it. (Tr. 193, 222, 224; Resp. Ex. 4).
Judge Levinson testified he also reviewed the court files relating to Nick's and Sylwia's divorces, and learned for the first time a support order had been entered against Dariusz. He determined the allegations in Olson's motion were backed up by the information in the court files and decided the matter should be heard as an emergency. Judge Levinson admitted he had no knowledge of what information the attorneys for Renee and Dariusz might have had or whether Respondent had informed Dariusz's lawyer that Nick was the father of Sylwia's child, but questioned why that would matter to him. (Tr. 168, 172, 175-77, 187, 199).
On November 26, 2008, the day before Thanksgiving, Judge Levinson held a hearing which was attended by Olson, Renee, Sylwia and Nick. Respondent was out of town, but Carlos Rodriguez appeared in his stead and asked for a continuance so Respondent could be present. Judge Levinson determined the matter should proceed because he was concerned about the
$2600 support order against Nick, and he believed there had been a fraud on the Court. At that time he had not received any responsive filing on behalf of Respondent, Sylwia or Nick. (Tr. 169-70, 177-81; Adm. Ex. 39).
After hearing arguments, Judge Levinson vacated the orders he had entered on July 24, 2008, as being void ab initio for lack of personal service on Dariusz, the presumed father of Sylwia's child. He also wanted Dariusz and Sylwia to submit to DNA testing before any support was determined. Judge Levinson had arranged for a court reporter to be present and at the conclusion of the hearing he indicated he would be sending the transcript to the ARDC. (Tr. 171-72, 182-83; Adm. Ex. 38).
Judge Levinson, along with Judge Betar and Judge Sullivan, reported Respondent's conduct to the ARDC. Judge Levinson believed Respondent had committed ethical violations by being less than honest to three courts, engaging in a conflict of interest, and failing to correct false testimony and amend his pleadings to inform Judge Betar that Nick was the father of Sylwia's child. (Tr. 172-74, 201).
Regarding the charges that Respondent made false statements to various tribunals, Judge Levinson stated Respondent lied to him by stating that Nick should pay child support, without disclosing the existence of a putative father, or that Sylwia was living with Nick. The omission of information impacted Judge Levinson's ruling. Respondent also lied to Judge Betar by failing to tell him Nick was the father of Sylwia's child. Judge Levinson said he believed Respondent was required by the Rules of Civil Procedure and by the ethical rules to update his pleadings (Tr. 205), and that he should have taken action as soon as he found out his statements were inaccurate. Regarding Nick and Renee's divorce case before Judge Sullivan, Judge Levinson also said he believed Respondent should have informed the court that Nick had a seventh child
and that he was living with, and spending money on, his paramour. Judge Levinson said he had no knowledge whether Renee's lawyer discussed that information with Judge Sullivan. (Tr. 204-08).
Judge Levinson testified he believed Respondent engaged in a conflict of interest by representing Nick in a divorce action and also representing Sylwia against Nick in the parentage action. No disclosure was made of a waiver and Judge Levinson does not know if a waiver was given. (Tr. 203).
Judge Levinson said he further believed Respondent was colluding with Nick to diminish Renee's child support by obtaining a prior order that would take precedence over any order entered in Nick and Renee's divorce. Judge Levinson stated he is familiar with the case of In re Marriage of Potts, 297 Ill. App. 3d 110, 696 N.E.2d 1263 (2d Dist. 1998), which, he said, holds that the term "prior" in reference to obligations of support refers to a family that is first in time, but he was not sure that case applied to these circumstances. At any rate, he was concerned Nick might try to use the order of support in the parentage case to try to reduce his income in the case before Judge Sullivan. He said he was not able to cite an appellate decision supporting his concern. (Tr. 211-215; Resp. Ex. 16).
The judges' letter to the ARDC also alleged Respondent had engaged in improper misconduct by filing a pre-trial memorandum on December 8, 2008, in Sylwia's divorce case, in which he did not disclose the $2600/month support payment from Nick. Judge Levinson acknowledged he had vacated that support order on November 26, 2008, but pointed out the valuations in the memorandum were prepared as of November 15, 2008. (Tr. 216-19; Adm. Ex. 33).
After receiving Respondent's response to their letter, Judges Levinson, Betar and Sullivan submitted a reply to the ARDC. Judge Levinson stated that, even after reviewing Respondent's explanations, he still had the same concerns that Respondent had not told the truth and could be trying to take advantage of Renee or Dariusz. In the reply letter, he questioned whether Respondent was truthful in claiming he did not learn Nick was the father of Sylwia's child until June 10, 2008. He believes any attorney who handles divorces would have asked Nick questions about his relationship with Sylwia. (Tr. 174, 210-11).
Respondent testified he informed Sylwia and Nick he had a conflict because he represented each of them in their respective divorces, and therefore could not represent either of them with respect to a paternity action. Nick responded he would not fight the parentage, he understood he was waiving any conflicts, and Respondent should represent Sylwia. Respondent agreed to represent Sylwia, and understood Nick would not be represented by counsel. Respondent completed and filed Nick's appearance for him, and Nick paid all of the fees for the parentage action. (Tr. 383-84, 433-36, 494).
Respondent testified that in preparing the parentage complaint filed on July 9, 2008, he used a typewriter to type information on the complaint form, but where choices were presented for his selection, he filled in the appropriate boxes by hand. With respect to paragraph number five, regarding Sylwia's marital status at the time the child was conceived, Respondent stated he first marked the box "was not married" because he assumed the statement referred to Nick and Sylwia. He then realized Sylwia was married, so he "whited out" the mark and selected the box next to "was married." The white out was on the original complaint he filed with the court clerk.
At the time he filed the complaint, he received several file-stamped copies of the complaint for his file. (Tr. 437-40, 447, 450, 496; Resp. Ex. 4).
With respect to the completion of another statement on the complaint form, Respondent selected the box indicating the child was living with "the mother" because the child was living with Sylwia. His other option would have been to check a box next to "other" and then fill in a blank to identify the other person. Respondent acknowledged knowing at the time he filed the complaint that Nick, Nick's mother, and Nick's son Napoleon, were all living in a condo with Sylwia and the baby, but he did not see any reason to include the fact the child was also living with Nick. Respondent stated if the child had been living with someone other than the mother, he would have selected the second alternative. (Tr. 445, 447; Resp. Ex. 4).
Respondent acknowledged he did not have Sylwia's husband personally served with a copy of the parentage complaint, but stated he was not aware Dariusz was a necessary party who, by statute, had to be served. Furthermore, he said he believed notifying Dariusz's attorney was sufficient, and he wanted to minimize any additional hurt to Dariusz. He stated he has only handled a handful of similar situations in his forty years of practice. (Tr. 451, 496-97).
On July 24, 2008, Respondent, Nick and Sylwia appeared before Judge Levinson and presented the complaint. Respondent did not disclose Sylwia's pending divorce case or the fact that he represented her in that case because he did not think it was necessary, the form did not ask for that information, and all of the parties knew about it. Similarly, Respondent did not inform Judge Levinson of the pending divorce between Nick and Renee because he did not believe it was relevant. He denied having any concern the information would affect the entry of a parentage order. (Tr. 385, 450, 452-53).
Respondent proposed Nick's monthly support be set at $2600 and an order was entered reflecting that amount. He said he arrived at that figure by taking Nick's monthly income of $13,000 and reserving 80%, or $10,400, of that amount for Nick's wife, Renee, and their children, the balance, or 20%, being $2600. Regarding payments to Renee, no support order had been entered at that time, but by oral agreement Nick paid her a certain amount every week, and then he paid the remainder of the bills. Respondent did not know if Nick ever made the $2600 support payments to Sylwia. (Tr. 453-55, 498; Adm. Ex. 29).
Respondent did not inform Dariusz's attorney of the support order in the parentage case, or give him a copy of the order, at that time. He believed notification was not relevant because by that point he had already told Dariusz's attorney that Dariusz did not have to make payments to Sylwia. (Tr. 501).
Testimony Regarding Nick/Renee's Divorce
Renee Kanari testified Sylwia Murwaska was employed as her children's nanny until June or July 2005. Sylwia initially lived with Renee and Nick, but in 2005 she moved to a condo owned by Renee and Nick. Renee became aware in 2005 that her husband was having an affair with Sylwia, but assumed the affair had ended when Sylwia married someone else. (Tr. 47-49, 79).
Sometime after Sylwia left their home, Renee learned Sylwia was pregnant. At that time she had no suspicions the baby was Nick's, but in the late spring or early summer of 2008, Sylwia's husband sent Renee photos of Nick with the baby, together with information regarding the parentage case between Sylwia and Nick. In or about August 2008, Renee learned from her attorney that a support order had been entered by the court for Sylwia's child. Renee's attorney
believed their discovery of the order would cause Nick to be more forthcoming in providing support for Renee. (Tr. 48-49, 71-73).
Renee testified she learned Respondent was representing both Sylwia and Nick, but when she questioned her attorney about it, he told her Respondent was not doing anything illegal. She was concerned Respondent had an order entered in the parentage action that would reduce the support she could be awarded in her divorce case. She understood at the time that whichever order was entered first would be executed first, but acknowledged she did not know the law regarding priority of orders. (Tr. 50, 74-76).
After Renee filed for divorce, she continued to handle the rental income and pay the bills. Thereafter, pursuant to a court order of September 30, 2008, the income was placed in an escrow account held by Respondent, from which either he or Nick were to pay the household bills, weekly child support of $1,000, and the expenses for the buildings. According to Renee, however, the rental income did not cover their expenses and she had to go to court on emergency motions to try to obtain payment. Renee believed Respondent was acting against her interest because he was paying Nick and Sylwia's bills from the escrow account before her bills were paid and, on one occasion, Respondent would not pay Renee's electric bill until she agreed to let Nick have spending money from the escrow account. Renee stated those payments were confirmed by a spreadsheet, prepared by Respondent or Nick or Sylwia, showing money disbursed from the escrow account. She also testified Nick and Sylwia may have received money that did not go through the escrow account. (Tr. 45-47, 66-71, 86, 92, 97; Adm. Ex. 32).
Renee believed Nick was withholding rental income from the escrow account. She denied money withheld could have been belonged to Nick's mother because Renee and Nick managed his mother's account and gave her spending money. She acknowledged that for some
months, Nick paid child support by signing over a rental income check in the amount of $1700. (Tr. 73, 96).
Renee made a decision to hire a new attorney and retained Linda Olson in September or early October of 2008. Renee's primary focus at the time was to have her bills paid. She told Olson that Nick was the father of Sylwia's baby, a support order had been entered, and Respondent was a friend of the family and knew everything that was going on. Olson filed an emergency petition, the escrow account was terminated, Renee gained control of the finances that were deposited into a court-ordered checking account, and Nick's payments were brought up to date. Renee stated that after Olson became involved, the case totally flipped and she started getting the support she had been awarded. (Tr. 51, 76-77, 82-83, 87, 89).
Renee testified Olson brought an emergency motion in the parentage case, but Renee did not know the nature of the emergency. When the motion was presented in court, Respondent was out of town, but Renee was present and was sworn in as a witness. (Tr. 78-79).
Renee paid Olson approximately $40,000 to represent her in the divorce proceeding, but after less than one year, Olson withdrew because Renee did not want to pay her any more money in legal fees. Renee's divorce proceeding is still pending. (Tr. 52, 81-82, 87).
Renee stated Respondent's behavior has affected her opinion of attorneys. She used to feel attorneys could be trusted to do the right thing and uphold the law, but no longer believes that to be true. (Tr. 53).
John Vojta, the attorney who filed a petition for dissolution on behalf of Renee Kanari, testified an agreed order was entered in that case on August 7, 2008, providing that Nick would be responsible for monthly marital expenses and directing him to pay Renee $1,000 per week for
child support. Vojta's advice to Renee was to work with Nick to resolve the financial issues and, as a result, he and Renee had many meetings with Respondent and Nick to determine ways to stretch the money. Vojta stated that prior to the August 7 order, Nick was paying the bills and might have been giving money to Renee, but the payments were not consistent. (Tr. 300-01, 310; Adm. Ex. 32).
In September 2008, Vojta filed an emergency petition requesting payment of monies to Renee because Renee felt Nick was making unilateral decisions involving the rental income and not placing the needs of his family first. Vogt's petition states Nick's income was derived from rental properties and had been as much as $30,000 per month, and Renee's monthly expenses, not including the children's education, were $10,500. Vojta was not certain whether the buildings that generated the rental income were owned by Nick's mother or by Nick. He acknowledged the $30,000 represented Nick's gross income, but believed even after mortgages and taxes, the monthly income was sizable. (Tr. 301-04, 308-09, 314; Adm. Ex. 34).
On September 18, 2008, Judge Sullivan continued the matter to September 30, 2008. Prior to September 30, Vojta and Respondent worked out a plan whereby the monthly rental income would be placed in an escrow account held by Respondent, and the parties or lawyers would agree as to how the money would be disbursed. An order to that effect was entered on September 30, 2008. (Tr. 302-03; Adm. Ex. 32).
At some point early in Vojta's representation of Renee, he learned Nick might have fathered a child by another woman. During a pre-trial conference with Judge Sullivan in his chambers on either September 18 or September 30, 2008, Respondent disclosed the fact a support order had been entered against Nick in the parentage action. Vojta informed Renee of the order and they discussed the impact it would have on the already limited funds. Vojta did not
take any action before Judge Sullivan regarding the support order, nor did he note anything on the record. He did not have a sense the parentage order had been entered in a way that was intended to conceal anything. (Tr. 304-07, 311-14, 319-20).
Vojta stated Renee terminated his representation in the fall of 2008 because she wanted a lawyer with a more aggressive approach. Vojta recalled having a conversation with his successor, Linda Olson, and was surprised to learn Respondent's actions had become an issue. (Tr. 307, 321).
Linda Olson, an attorney since 1989, testified she has been a sole practitioner for approximately nine years and concentrates her practice in the area of domestic relations. Olson first met Respondent in connection with her work on Renee Kanari's divorce. (Tr. 228-29, 242).
On October 2, 2008, Olson agreed to represent Renee in connection with Renee's divorce from Nick, and at that time Olson learned Nick had fathered a child with Sylwia and a support order had been entered in a parentage case. Olson printed out information from the parentage case court file that was available online. (Tr. 230, 234, 242-44).
On October 8, 2008, Olson replaced Renee's former counsel and filed her appearance in the pending divorce action. When Olson entered the case, the court had not made a determination with respect to Nick's income, or the marital assets and debts. Olson recalled that although a temporary support order was in place which directed Nick to pay marital expenses, Renee's household bills were not being paid. Olson's objective was to have Nick comply with the temporary order, and to "stop the bleeding." (Tr. 230-32).
As of October 21, 2008, Olson theorized the judgment in the parentage case could be used to Renee's detriment. On that date, she sent a letter to Respondent in which she discussed
Nick's financial obligations with respect to Renee, and questioned why a final support order was necessary in the parentage action when Nick was supporting Sylwia directly. On October 27, 2008, Olson was retained by Renee to attempt to intervene in the parentage action. (Tr. 236, 245-46; Resp. Ex 7).
Olson stated that during a pre-trial conference on November 7, 2008, in Renee's divorce action, Respondent brought up the fact Nick was subject to a support order for his infant child, which he could not pay. Olson did not receive a copy of the support order at that time. She voiced her concern to Respondent about the order, but did not discuss with him its impact on any support order entered in Renee and Nick's divorce case, and did not ask him to agree to vacate the support order in the parentage case or to agree an order in the divorce case might have priority. An agreed order was entered in the divorce action which provided Nick would pay Renee the amount he owed in back child support. After the court appearance, Olson reviewed and copied Sylwia's divorce file. (Tr. 233, 235, 252, 259-60; Adm. Ex. 32).
At some point Olson came into possession of the complete court file regarding the parentage action between Sylwia and Nick. Based on her investigation of the court files in the parentage case and Sylwia's divorce case, as well as legal research on the issue of standing to intervene, Olson prepared an emergency petition for leave to intervene and an emergency motion to stay the proceedings in the parentage case. Attached to the motion to intervene was her motion to vacate the judgment and orders entered in the parentage action. Olson stated the matter was an emergency because the $2600 support order in the parentage case was fraudulent, and every day that went by was an opportunity for Nick and Sylwia to "continue colluding." She feared they would attempt to procure an order allowing Sylwia to become a judgment creditor to Nick's property. (Tr. 236-38, 249, 253-54, 263; Adm. Ex. 35).
The emergency petition to intervene asserted, among other things, the parentage action was filed for the purpose of establishing a "prior order of support" in favor of Sylwia under Section 505 of the Marriage and Dissolution Act, which would constitute a mandatory deduction from Nick's income prior to awarding Renee any final child support. Olson stated she did not conduct research as to which support order would be given priority because she was familiar with the law in that area. (Tr. 255-56; Adm. Ex. 35).
Olson testified she did not contact Dariusz or his lawyer prior to filing her motions to determine what they knew about the parentage action or whether Dariusz was still paying support to Sylwia, nor did she contact Renee's former lawyer, John Vojta, to ascertain his knowledge of the parentage case. Olson said she was not concerned about their knowledge or whether they had taken any informal steps to protect the interests of their clients. (Tr. 257-58).
At 5:20 p.m. on November 19, 2008, Olson notified Respondent by fax she would be presenting emergency motions the next morning. She made no effort to call him prior to that time to check on his availability. She stated she served everyone who was entitled to notice, including both parties, and she did not believe Respondent would appear because "the whole thing was so bad." On the morning of November 20, 2008, she received a message from Respondent complaining about the late notice and informing her he would not be available to appear that morning. (Tr. 262, 265-66).
On November 20, 2008, Olson presented the emergency motion to intervene. Judge Levinson's call was being handled by another judge, who set the matter for November 26, 2008, at 9:00 a.m., before Judge Levinson, and directed Olson to serve notice on all parties and all attorneys. After serving notice, Olson received a November 21, 2008, fax from Respondent stating he would not be available on November 26 because he would be in Ohio for the holiday.
Respondent suggested an alternative date of December 3 or 4, 2008. Olson responded by fax she would not enter into any agreed orders, but would be open to receiving notice of an appropriate motion with regard to Respondent's availability. Olson then met Respondent at the courthouse that same day to attempt to obtain a new date, but Judge Levinson was not available and his representative would not assign a new court date unless Olson and Respondent entered into an agreed order, which Olson would not do. (Tr. 239-40, 269-73; Adm. Ex. 37; Resp. Exs. 8, 8A).
On November 22, 2008, Respondent informed Olson by fax Carlos Rodriguez would appear on his behalf on November 26, but would be arriving late because of a conflicting court matter. Olson responded she would not agree to hold the matter, but would inform the judge of the communication from Respondent. (Tr. 274; Resp. Ex. 10).
Olson stated she had come to the conclusion, while preparing her motions, Respondent had engaged in misconduct. On November 24, 2008, Olson reported Respondent's conduct in the parentage and divorce matter to the ARDC. (Tr. 242).
On November 26, 2008, Olson's emergency motion was heard by Judge Levinson. Renee, Nick and Sylwia were present, as was Rodriguez at the request of and on behalf of Respondent. Judge Levinson was informed Respondent was not able to be present, but proceeded in his absence. Judge Levinson granted the motion to intervene, determined there had been a fraud on the court, and vacated his prior judgment sua sponte. (Tr. 238-40, 275; Adm. Ex. 38).
Following the court hearing on November 26, 2008, Olson continued to represent Renee in the divorce action until August 2009, at which time she withdrew. (Tr. 240-41).
With respect to his representation of Nick in Nick's divorce from Renee, Respondent testified he met with Nick, Renee, and Renee's attorney in April 2008 to reach an agreement on support payments for Renee. They agreed Nick would deposit money in the bank account and Renee would pay the bills. (Tr. 455).
On August 7, 2008, Respondent appeared in court and a support order was entered which provided Nick would pay all marital expenses and give Renee $1,000 per week. In or before September 2008, Respondent recalled speaking to Renee's attorney and Judge Sullivan in Judge Sullivan's chambers regarding the amount of money available for support. At that time, Respondent mentioned Nick's other child, the order entered in the parentage action, and the lack of sufficient funds to pay it, but did not provide a copy of the parentage order or complaint to Judge Sullivan. Respondent testified not all of Nick's properties were rented at the time, but the income would be enough to cover all of his obligations if they were all rented. When Judge Sullivan made reference to the "first family," Respondent understood the statement to mean Nick's obligation to Renee and her children, his "first family," took priority over his obligation to Sylwia and her child. He stated he had that view of the law when Judge Levinson entered the parentage orders in July 2008. (Tr. 387-90, 456, 465, 472, 499-502).
With respect to how child support is calculated, Respondent stated that under the Dissolution of Marriage Act, an individual's net income is considered and then any prior obligation of support paid pursuant to a court order is deducted from the net figure. Respondent understood that pursuant to the Potts case, priority of obligations is determined by when children were born, rather than when orders of support were entered. After the conversation in Judge
Sullivan's chambers in September 2008, Renee's counsel did not ask Judge Sullivan to take any action with respect to the parentage support order. (Tr. 468-72).
At the beginning of October, an escrow account was set up for payment of the marital bills. At Judge Sullivan's suggestion, Respondent agreed to handle the account, disburse funds with the agreement of Renee's counsel, and keep an accounting of the deposits and expenditures. Respondent identified the accounting he prepared, and stated every payout, beginning with the first one on October 8, 2008, through the last one he made on January 22, 2009, was approved by Renee's counsel, Linda Olson. A separate accounting statement shows payments Nick made prior to the escrow account being set up. Respondent remained the escrow agent on the account until he withdrew from the case on January 22, 2009. He acknowledged there was sometimes not enough money in the account to pay all of the bills, and on one occasion he covered a bill out of his own pocket until money came into the account. (Tr. 457-62, 498; Resp. Exs. 14, 21).
Respondent testified when he arrived at his office at 7:00 a.m. on November 20, 2008, he found a fax from Linda Olson with her emergency petition to intervene in the parentage action. When Respondent was asked to examine a copy of a notice of emergency motion filed by Olson, he stated the copy he received did not include a handwritten revision, that appears on the file stamped copy, regarding the time of service. The copy he received stated the notice was faxed to him prior to 5:00 p.m. on November 19, when, in actuality, his office received it at 5:20 p.m. On the file-stamped copy "5:00 p.m." is crossed out and "5:20 p.m." is written in. (Tr. 474-76; Adm. Ex. 35).
Upon receiving the fax, Respondent called Olson and left her a voicemail in which he admonished her for not alerting him to the motion until 5:20 on the prior day, and advised her he could not make the hearing that morning. When Olson subsequently advised him the matter was
set for November 26, 2008, he responded by fax on Friday November 21, 2008, advising Olson he would be out of town with his family for Thanksgiving, and suggesting the matter be set for December 3 or 4, 2008. Olson replied by fax that she understood family obligations, but was not in a position to enter into any agreed orders in the case. When Respondent and Olson met at the courthouse to try to change the date, they were advised by a staff attorney the hearing date could be changed only by agreed order. Olson would not agree to a new date. (Tr. 476-80; Resp. Exs. 8, 8A).
Respondent believed his family commitment was more important than attending the court hearing on November 26, 2008, and his officemate Rodriguez appeared in his stead. As of that date, Respondent had not filed any pleading setting forth his position on the allegations contained in the emergency motion. (Tr. 482, 502).
Rodriguez's 2008 invoices to Respondent show that on November 25, 2008, he spent 1.75 hours reviewing the parentage case and conducting legal research. Respondent acknowledged Rodriguez's research had turned up the Potts case at that time and that Rodriguez took a copy of the decision to the hearing on November 26, 2008. Rodriguez also gave a copy of the decision to Respondent, which he later attached to a letter to the ARDC. Respondent stated he knew the law, but directed Rodriguez to find the specific case. (Tr. 381-82).
Evidence Offered in Mitigation
Respondent stated he has been a member of Holy Apostles Greek Orthodox Church since 1974 and is a godfather, or sponsor, of the church. He has served as the national chairman of the Greek Orthodox Youth of America, coached little league football, been active in the Woodlawn
Boy's Club, and assisted a Boy Scout troop. He had been active in the DuPage Bar Association earlier in his legal career. (Tr. 399-04).
John W. Darrah
John W. Darrah testified, by evidence deposition, he was appointed to the federal bench in 2000 after serving as a judge in the Circuit Court of DuPage County since 1986. He has known Respondent since the late 1970s, when they were both practicing lawyers in DuPage County. (Darrah Evid. Dep. 4-5, 9-10).
Judge Darrah testified he presided over adoptions from 1986 to 2000, and often appointed Respondent to serve as guardian ad litem in those matters. He stated he needed someone in that role who was honest, trustworthy, and conscientious, and who would serve the interests of the child. He also may have appointed Respondent to serve as a receiver in chancery matters because he thought so highly of Respondent's abilities and character. (Darrah Evid. Dep. 11).
Judge Darrah testified Respondent is among the most honest people he has ever met, and his reputation for honesty is exemplary. He described Respondent as being straightforward with the court and with his opponents, and a person who always put the interests of his client first. Judge Darrah stated he is familiar with the allegations of the disciplinary complaint, but even if those allegations are proved, his opinion of Respondent's reputation for truth and honesty would not change. (Darrah Evid. Dep. 13-15, 18).
Arthur Berman, an attorney since 1964, testified he practices exclusively in the area of matrimonial law and has been chairman of the Illinois State Bar Family Law Section and past president of the American Academy of Matrimonial Lawyers. Berman stated he has known Respondent since high school and they attended the same college and law school. They have
known each other professionally, and have referred matters to each other. Berman stated Respondent has the highest reputation for truth and honesty and is exceptionally loyal to clients. (Tr. 287-91).
Michael Galasso, an attorney since 1961, testified he served as a judge of the Circuit Court of DuPage County from 1984 until 1998 or 1999, at which time he was appointed to the appellate court. Upon his retirement from the court in 2000, he became a partner at a law firm specializing in domestic relations law. (Tr. 326-27).
Galasso stated he first became acquainted with Respondent in the late 1960s or early 1970s, when they had cases together. Respondent also appeared before him on many occasions when he was on the bench. Based on his experiences with Respondent, as well as conversations he has had with other attorneys, Galasso stated Respondent has a reputation for being very truthful and trustworthy. (Tr. 328-29, 332).
Terry Chiganos, an attorney since 1975, testified he has known Respondent since he was a teenager. They are acquainted through the Greek community and attend the same church. Chiganos stated he is familiar with Respondent's reputation in that community, and believes Respondent is very truthful, trustworthy, and competent. (Tr. 365-66).
Following the close of the hearing, and pursuant to Commission Rule 277, the Administrator reported the Illinois Supreme Court suspended Respondent in May 1991 for a period of five months. The discipline was imposed for two separate acts of misconduct: Respondent (1) failed to file federal income tax returns in 1984 and 1985, which failure led to his
conviction; and (2) personally guaranteed a client's payment of money to a complaining witness in a judicial proceeding and failed to make the payment within the time promised.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 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, 577 N.E.2d 762 (1991). Suspicious circumstances, standing alone, are not sufficient to warrant discipline. In re Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961 (2006).
Counts I and II
Count I alleged Respondent engaged in a conflict of interest by representing Renee Kanari in various matters and then subsequently representing her husband Nick Kanari in divorce proceedings initiated by Renee in 2005. Count II involved similar allegations with respect to divorce proceedings initiated by Renee in 2008.
Before addressing the specific ethical rules, we must first examine Respondent's representation of Renee and the Kanari family. The evidence showed Respondent had a long-standing relationship with Nick Kanari's parents, Napoleon and Alexandra Kanaris, and represented them in connection with their ownership and leasing of commercial real estate. Respondent also represented Nick Kanari, both through Nick's involvement with the family business, as well as Nick's own personal investments and business ventures that were separate from the family business. Respondent's representation of the Kanaris family and his representation of Nick preceded Nick's marriage to Renee in 1998, and continued after their
marriage. Other than the purchase and sale of a condominium, which we discuss below, that representation focused on Nick's business and business interests.
The evidence also showed Respondent represented Renee personally on one occasion, but his representation was extremely limited. Respondent confirmed filing an appearance on behalf of Renee in November 2003 in a case involving her alleged failure to properly withdraw from an option to buy a condo. Both Respondent and Renee agreed he withdrew from the case before any action was taken. Although Renee stated she provided the lease to Respondent, along with information about her place of employment, we note her recall of the representation was confused in that she testified the condo dispute occurred during her marriage to Nick, but then identified a 1995 court file as involving the dispute for which Respondent entered his appearance. The 1995 action, which preceded Renee's marriage to Nick, reflected no appearance by Respondent.
With respect to the business properties owned or leased by Nick, Renee acknowledged she did not have an ownership interest in those properties, other than a condominium on Perrie Drive in Elk Grove Village which was purchased in 2006. As to that property, the sales contract lists the purchaser as Nick Kanari, and Respondent testified he represented Nick when he purchased the property as an investment. He further stated Renee's name was added to the deed at the closing, probably at the insistence of the lender, and he never talked to her about the property prior to the closing. Although Renee claimed she spoke to Respondent regarding the purchase of the property, she offered no details of their conversation. In August 2007 Renee and Nick entered into a sales contract for the same condo and, while Respondent's name is listed on the contract as the seller's attorney, he denied drafting the contract. He testified the sale was aborted when the purchaser could not secure financing, and he signed a cancellation agreement
on behalf of Nick and Renee. Renee and Respondent agreed they never spoke regarding the attempted sale of the condominium.
Respondent and Renee also agreed Respondent would have lunch on occasion at Renee and Nick's home. While there was some disagreement as to the scope of the discussions during those lunches, both agreed business issues were discussed. Respondent recalled Renee was present, but did not participate in the discussions, and Renee did not claim otherwise.
Rule 1.9(a) states that a lawyer who has formerly represented a client in a matter shall not thereafter "represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." Both Count I and Count II, as set forth in Paragraphs 12 and 24 of the Complaint, charged Respondent with a violation of that rule. Clearly Renee's and Nick's interests in the divorce proceeding were materially adverse, and Respondent admitted as much, but he disputed he had represented Renee in any substantially related matters.
The question we must consider, therefore, is the nature of Respondent's former representation of Renee and whether the matter or matters were substantially related to his later representation of Nick in the divorce proceedings. In In re Bilal, 05 CH 87, M.R. 22687 (Jan. 20, 2009) the Review Board, in an opinion approved by the Supreme Court, stated that "determining whether there is a substantial relationship between matters involves considering the scope of the prior representation, whether it is reasonable to infer that confidential information would have been given to a lawyer representing a client in such a matter, and whether such confidential information is relevant to issues in the subsequent representation," citing In re Estate of Klehm, 363 Ill. App. 3d 373, 380, 842 N.E.2d 1177 (1st Dist. 2006); In re Carey and Danis, Nos. 99 SH 67, 68, M.R. 18575 (May 22, 2003); Schwartz v. Cortelloni, 177 Ill. 2d 166, 685
N.E.2d 871 (1997). The Review Board in Bilal pointed out Rule 1.9(a)(1) does not require proof confidential information was actually received, but merely that it is reasonable under the circumstances to conclude it could have been. Gagliardo v. Caffrey, 344 Ill. App. 3d 219, 231, 800 N.E.2d 489, (1st Dist. 2003). Finally, the Review Board stated a substantial relationship can be found when the prior representation involved the same parties and the same issues as the subsequent representation or where the attorney, in the prior representation, was intimately involved in matters that were the subject of the subsequent representation.
We do not find Respondent violated Rule 1.9(a)(1) by representing Nick in either the 2005 and 2008 divorce proceedings. With respect to the 2005 proceedings, his only prior representation of Renee involved giving advice, the exact nature of which was not specified, and filing his appearance in an action regarding her default on an option to purchase a condo. Renee's faulty memory regarding the circumstances of that case, and Respondent's withdrawal before any action was taken, underscore his limited participation and involvement in that matter. There was no evidence indicating Respondent was given or could have been given confidential information in that matter that could have had any impact on the later divorce proceedings.
We do not equate Respondent's representation of Nick or Nick's family in their business affairs with representation of Renee. Her name was not on any lease agreements for rental properties, nor did she have ownership interest in the family properties. We are fully aware Respondent, through his representation of Nick, gained access to Nick and Renee's family income, sometimes through materials sent to him by Renee, but such information was neither confidential to Renee nor imparted to Respondent in confidence by Renee. Had Respondent been privy to private information from Renee, such as her individual earnings or investments, or to personal information affecting her financial status or parental abilities, our conclusions might well be
different. We note, for instance, Renee's testimony that she felt angry and betrayed because Respondent told her attorney Renee had stolen money from her father. Respondent received such information from Nick, however, and not from Renee, and the information was not learned by Respondent in connection with his representation of Renee.
With respect to the 2008 divorce proceedings, our conclusions are similar, although we note by the time that proceeding was filed, Respondent had some further dealings with Nick and Renee with respect to the purchase and attempted sale of a condominium. While Respondent maintained he was representing only Nick in the purchase of the Perrie Drive property, Renee's name having been added at the closing as a last minute formality, she did appear at the closing and testified Respondent was representing her in that transaction. She gave no details of any conversations she had with Respondent with respect to the purchase. With respect to the aborted sale of the condo, Respondent signed a cancellation agreement on behalf of both Nick and Renee, but never discussed the sale with Renee. Despite the fact that Respondent represented Renee with respect to the Perrie Drive property, we again conclude the representation was extremely narrow in scope and did not involve any information that was confidential to Renee.
Because we have found Respondent's prior representation of Renee was not substantially related to his representation of Nick in the divorce action, we do not have to determine whether Renee waived any potential conflict of interest. We believe it is important to note, however, that Renee's attorney, John Vojta, did not recall Renee ever expressing a concern Respondent was representing Nick in either of the divorces, nor did Vojta have a concern about Respondent's representation even though he knew Respondent had represented Nick and Nick's parents. As to the 2008 proceedings, Vojta testified credibly he had advised Renee Respondent's familiarity with Nick's family could actually work to her advantage because Respondent might be able to
reason with Nick's mother, who controlled the family assets. In light of the fact Respondent's representation of Nick was a subject of discussion between Renee and her attorney, and they then proceeded without voicing any objection to Respondent's representation, we can and do conclude Renee made a conscious and strategic choice to proceed with Respondent in the case.
We find the present case to be vastly different than the situation in In re Heilrich, 02 CH 26, M.R. 19630 (Nov. 17, 2004) where the attorney violated Rule 9.1(a)(1) by representing a couple in the negotiation and drafting of a prenuptial agreement and then, after the couple married, representing the husband against the wife in a divorce action. In that case, the two representations were clearly related, as the validity of the prenuptial agreement was at issue in the dissolution proceeding and the attorney had gained personal information about the wife during his former representation of her. Similarly, in In re O'Shea, 02 SH 64, M.R. 19680 (Nov. 17, 2004) the attorney engaged in a conflict of interest when he represented a client in divorce proceedings and in an order of protection matter brought by the client's wife. The attorney had previously met with the client's wife when she was contemplating divorce, and had represented her in four other matters, including a personal financial matter and a DCFS investigation.
We conclude from the evidence in this case that Respondent's prior representation of Renee was limited in both time and scope, Respondent was not given any confidential information as a result of that representation, and the nature of any prior representation was not relevant to issues in the subsequent representation. Therefore, as to Counts I and II, we find the Administrator did not prove by clear and convincing evidence Respondent (1) represented a person in a substantially related matter in which that person's interests are materially adverse to the interests of a former client in violation of Rule 1.9(a)(1); (2) engaged in conduct which is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); or (3) engaged in
conduct which tends to bring the courts and legal profession into disrepute in violation of Illinois Supreme Court Rule 770.
Count III involved Respondent's alleged failure to correct misstatements made to the court during his representation of Sylwia Murwaska in her divorce from Dariusz Ziembinski. The evidence showed that in March 2008 Respondent prepared and caused to be filed, on behalf of Sylwia, a verified petition for dissolution of marriage in which stated Sylwia and Dariusz had a son, Constantine, who was born of their marriage, and that Sylwia had conducted herself as a true, affectionate and dutiful wife towards Dariusz. When Sylwia appeared in court on an emergency petition for order of protection, she testified before Judge Betar that Dariusz was the father of her child. Respondent was not present at that court hearing, but his officemate appeared in his stead.
On March 10, 2008, Judge Betar entered an emergency order of protection and on April 21, 2008, he entered an agreed order of protection which set times Dariusz could visit Constantine, and directed Dariusz to pay temporary support of $100 per week. According to Judge Betar, once the order was entered it was enforceable and Dariusz was legally bound to make the payments.
In reality, Nick Kanari was the father of Sylwia's son. The Administrator did not allege or argue Respondent knew of that circumstance when he filed Sylwia's petition and when Sylwia gave her testimony. In fact, and we so find, Respondent did not learn Nick might be Constantine's father until late May 2008, at which time he directed his client to obtain the results of a paternity test. Nick's parentage was then confirmed to Respondent on June 10, 2008. Thereafter, on July 9, 2008, Respondent filed a separate action for parentage on behalf of Sylwia
against Nick Kanari, and on July 24, 2008, an order was entered adjudicating Nick to be the father of Constantine and directing him to pay support to Sylwia.
After learning Nick was the father of Sylwia's child, Respondent did not inform Judge Betar the allegation of parentage in Sylwia's divorce petition was not correct, that Sylwia's testimony was inaccurate, a separate action had been filed to determine the child's parentage, or a support order had been entered in the parentage action. Sylwia's divorce case was continued on four occasions between July 14 and December 8, 2008, and on each occasion the order directing Dariusz to pay support was extended.
Although Respondent did not correct the misinformation presented to the court and took no action to modify the order requiring Dariusz to pay support for Sylwia's child, he pointed out he immediately informed Dariusz's attorney, Walter Zarnecki, of the results of the paternity test, and agreed with Zarnecki that Darius should not make any further payments to Sylwia. Respondent and Zarnecki also agreed Sylwia should reimburse Dariusz for the seven payments already tendered to her.
At the time of the foregoing events, Rule 3.3(a)(4) expressly provided a lawyer "…shall not: (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures"1. Therefore, Respondent had an affirmative obligation to take reasonable remedial measures once he knew he had presented false evidence to the court. We believe "reasonable remedial measures" encompass more than entering into an informal agreement with opposing counsel. In this case, the support order against Dariusz remained in effect for months after Respondent learned that Nick was the father of Sylwia's child and, as Judge Betar pointed out, the order was enforceable against Dariusz. Because Respondent failed to inform either Judge Betar or Judge
Levinson of the parentage action, two court orders required two different men to pay child support at the same time for the same child. We believe the parentage issue should have been disclosed by Respondent in the petition for dissolution of marriage, or in an amended petition, so it could have been dealt with in an appropriate manner.
We find Respondent, as an officer of the court, had a duty to inform Judge Betar of the inaccuracy of the statements in Sylwia's petition and in Sylwia's testimony, and we find his failure to do so violated Rule 3.3(a)(4). For the same reasons, we find he also violated Rule 3.3(a)(5), which states "…a lawyer shall not: (5) participate in the….preservation of evidence when the lawyer knows or reasonably should know the evidence is false." We note the phrase "preservation of evidence" could have various interpretations, such as taking affirmative steps to safeguard evidence from destruction, but we believe it also encompasses a failure to take action to correct false evidence, whether or not the attorney was involved in the presentation of the evidence. Finally, because Respondent's failure to act resulted in the support order against Dariusz being extended multiple times, we find he engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) and conduct which tended to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.
We do not find the Administrator proved by clear and convincing evidence Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). The fact, as we find above, Respondent did not initially know of the parentage of Sylwia's child, Respondent's prompt discussions with Dariusz's counsel as soon as he learned about it, their agreement Dariusz could suspend his support payments, and Respondent's filing of a parentage action to have Nick adjudicated the father of Sylwia's child, are all acts showing
Respondent was not attempting to conceal the paternity results from Dariusz or to defraud him by seeking unwarranted financial benefits for Sylwia. In our opinion, Respondent's misdeed lies in his failure to discharge his obligations to the court, as we find above, and not in the perpetration of any deceitful scheme on behalf of his client, and we so find.
For the foregoing reasons, we find the Administrator proved by clear and convincing evidence that Respondent failed to take reasonable remedial measures before a tribunal when he offered material evidence and came to know of its falsity in violation of Rule 3.3(a)(4); participated in the preservation of evidence before the tribunal when he knew or reasonably should have known the evidence was false in violation of Rule 3.3(a)(5); engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770. We do not find the charge of engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(5) was proved by clear and convincing evidence.
Count IV charged Respondent made a false statement to a court, offered false evidence, participated in the preservation of false evidence, and engaged in dishonest conduct and conduct prejudicial to the administration of justice. The allegations of misconduct stemmed from Respondent's actions, and inactions, in relation to the following three court cases pending simultaneously in the summer and fall of 2008 in the Circuit Court of Cook County in Rolling Meadows:
- The Nick Kanari and Renee Kanari divorce case. In proceedings before Judge Sullivan, Respondent represented Nick, and Renee was represented by John Vogt and then Linda Olson;
- The Sylwia Murawska and Dariusz Ziembinski divorce case. In proceedings before Judge Betar, Respondent represented Sylwia, and Walter Zarnecki represented Dariusz;
- The Sylwia Murawska and Nick Kanari parentage action. In proceedings before Judge Levinson, Respondent represented Sylwia Murawska and Nick appeared pro se.
Much of the misconduct alleged in Count IV related to Respondent's failure to apprise the presiding judges in each of the foregoing three cases of the existence of the other cases and orders entered in those cases. Specifically, the complaint alleged Respondent knew or should have known orders entered in Nick and Renee's divorce case, and Sylwia and Dariusz's divorce case, would have an effect on orders entered by Judge Levinson in the parentage action, and the support order entered in the parentage case would affect orders entered by Judge Betar in Sylwia and Dariusz's divorce case and on any judgment or support order entered by Judge Sullivan in Nick and Renee's divorce case.
The Administrator aptly described the events in this case as a "three ring circus." Proceedings were occurring simultaneously in three separate courtrooms, and Respondent was a participant in each arena. Although he was not charged with representing conflicting interests, he clearly was walking a tightrope with respect to his duties to each of his clients. Having willingly placed himself in that precarious position, however, he was also in a unique position to bring any conflicting orders or inconsistencies to the attention of the judges. This he failed to do.
The evidence demonstrated neither Judge Levinson nor Judge Betar became aware of the other pending cases until November or December of 2008, and we so find. When they did learn of the circumstances of the other cases, they had concerns about orders they had entered. Judge Levinson, in particular, testified he would not have entered orders in the parentage case had he known that Sylwia was married to Dariusz at the time her child was conceived, that Nick and Sylwia were living together, or that Nick was married and responsible for the support of six other
children. Prior to entering any orders, he would have required notice of the lawsuit be given to Dariusz, the putative father of Sylwia's child.
Similarly, as noted with respect to our findings in Count III, Respondent failed to advise Judge Betar of the parentage action, resulting in two men being obligated to pay child support for the same child. With respect to rulings in Renee and Nick's divorce case, we did not hear testimony from Judge Sullivan, but Renee Kanari's counsel and Respondent both stated the court was not informed of the parentage action until sometime in September 2008. We heard no evidence that the existence of the parentage action impacted the agreed order of support that had been entered by Judge Sullivan in August 2008, but we did hear testimony that Nick failed to meet his obligations under that order.
The Illinois Supreme Court has held lawyers owe a duty to assist the court in administering justice and in arriving at correct conclusions. In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). Having listened to the judges' testimony and considered their confusion and the disruption to their cases, we conclude Respondent's failure to disclose pertinent information regarding his clients' circumstances adversely impacted the administration of justice. As an officer of the court, Respondent failed in his obligation to take measures to ensure the respective judges were not operating under any inaccurate assumptions that could prejudice the rights of any parties. Attempting to cure those false impressions outside the courtroom through discussions with opposing counsel was not sufficient, especially when orders remaining in effect would not have been entered had Respondent disclosed relevant information. Accordingly, we find the Administrator proved by clear and convincing evidence Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5), and
engaged 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 770.2
However, we do not find the evidence established Respondent's failure to advise the judges of concurrent proceedings and orders was part of a dishonest scheme to benefit his clients, Nick and Sylwia. With respect to Respondent's lack of disclosure of the parentage action, we give significant weight to the testimony of Walter Zarnecki, Dariusz's counsel in the Sylwia/Dariusz divorce proceedings, and the testimony of John Vogt, Renee's initial counsel in the Renee/Nick divorce proceedings. Zarnecki recalled Respondent informed him in July 2008 of the results of Nick's paternity test, agreed Dariusz could cease making payments to Sylwia, and alerted him to the filing of the parentage action. John Vogt testified he knew early in his representation of Renee that Nick had fathered another child, he discussed the parentage action with Respondent in September, and he did not have a sense the parentage order had been entered in a way intended to conceal anything. In addition, Renee testified she was aware of the parentage action at an even earlier date because Dariusz had sent her information about the case. She stated she and her attorney believed the support order in the parentage case could work to their advantage, possibly causing Nick to be more forthcoming in providing support for her.
The fact both Zarnecki and Vogt had ongoing discussions with Respondent and were apprised of the parentage action contradicts any suggestion Respondent was acting surreptitiously or with an intent to conceal the activity in that case. We note Respondent acknowledged he failed to serve Dariusz with a copy of the parentage complaint as required by statute, but testified credibly he was unaware of the requirement as he had not handled many parentage actions. Given his communications with Zarnecki, we do not interpret his failure to serve Dariusz with a copy of the complaint as evidence of deceit. At most, Respondent's failure
to research and comply with the statutory notice requirement indicates a lack of diligence on his part, but he was not charged with engaging in that type of misconduct.
We conclude from the foregoing evidence Respondent did not intend to conceal the parentage case or Judge Levinson's orders in that case from either of the judges in the two divorce cases. Likewise, we also find he did not intentionally conceal information from Judge Levinson regarding Nick's and Sylwia's marital status, their respective divorce proceedings, and their living arrangements. We make the latter finding after reflecting upon some very perplexing evidence regarding Respondent's possible alteration of the parentage complaint after it was filed and viewed by Judge Levinson.
During the course of the testimony of Judge Levinson, the Administrator's Counsel, commencing at page 156 of the transcript, inquired extensively about Administrator's Exhibit 25, a copy of the original parentage complaint filed by Respondent in the Circuit Court of Cook County. Essentially, Judge Levinson's testimony on that subject covered two general points. First, he routinely reviews the pleading in all such matters, even if no issues are in dispute, and looks at the marital status of the mother and the party with whom the child resides (Tr. 157-58, 194, 223-226; Adm. Ex. 25). Second, when he examined the complaint in the court file at the time of the November 2008 hearing on the emergency motion brought by Atty. Linda Olson, he noticed correction fluid had been used to cover the box in Par. 5, next to "was not married" and a mark appeared in the box next to "was married." During cross-examination, Respondent's Counsel caused to be received in evidence as Respondent's Exhibit 4 a duplicate of the parentage complaint, retrieved from Respondent's office file, which bore an original blue file stamp affixed by the Court Clerk at the time of filing of the complaint.
Inasmuch as no formal allegations regarding an improper alteration of court files by the Respondent were included in the Administrator's complaint, we can conceive of no other reason why this evidence was adduced except for purpose of aggravation since it quite clearly implied Respondent had been responsible for altering the original after it had been filed.
Judge Levinson acknowledged he had no specific recollection of his first viewing of the parentage complaint, but said he reviews the pleading in all such matters, even if no issues are in dispute, and looks at the marital status of the mother, and the party with whom the child resides. (Tr. 157-58, 194, 223-226). Prior to the July 24, 2008, hearing, he believed, with respect to Sylwia's marital status, that the box in Par. 5 on the parentage complaint, next to "was not married," was checked, because otherwise, he explained, he would not have entered orders without notice to Sylwia's husband, the putative father of her child. (Tr. 223, line 23). After receiving Atty. Olson's motion, Judge Levinson reviewed Sylwia's parentage complaint in the court file and noticed for the first time the box next to "was married" was filled in and the box next to "was not married" had been "whited out." When he held the paper up to the light, he could see the box next to "was not married" had been marked before white-out was applied. He concluded, therefore, a change must have been made after his initial review of the complaint.
The violations we find Respondent committed in connection with Counts III and IV were "Sins of Omission," that is, we found Respondent failed to take actions he was obligated to take pursuant to the Rules of Professional Conduct, but we did not find he took those actions with any intent to deceive. Altering a court document, on the other hand, would constitute forgery and fraud, "Sins of Commission," and, if proven, would have been seriously aggravating evidence and would have had a grave impact on our assessment of Respondent's character and of our recommendation of appropriate discipline even though he was not charged with or found guilty
of such misconduct. We therefore think it imperative that we determine, based on the evidence in the record, whether the parentage complaint in the Circuit Court was altered after it had been filed.
Respondent's Exhibit 4 is the actual piece of paper that was the duplicate of the parentage complaint Respondent had had file stamped by the Clerk of the Court at the time he filed the original complaint. That document, which was later retrieved from his office file and received in evidence at the hearing, bears the Circuit Court Clerk's original blue ink file stamp, stamped by the Court Clerk immediately after the original complaint was filed. As of the date this Report and Recommendation was filed, Respondent's Exhibit 4 was in the ARDC Clerk's files of the exhibits received during the hearing in this matter. Administrator's Exhibit 25 is a black and white copy of the original complaint on file in the Court Clerk's office and, consequently, the color of date stamp ink is not discernable. However, Respondent's Exhibit 4, and Administrator's Exhibit 25, both show the box in front of the words "was not married" in Par. 5 having been covered over by correction fluid, which can be seen by simply visually examining the exhibits, and they both bear marks of the same size, position and shape in the box in front of the words "was married."
Respondent explained he had initially assumed the "was married" option in Par. 5 of the complaint form referred to a marriage between the parties to the parentage complaint, Sylwia and Nick, and, therefore, when he initially prepared the form, he checked the box indicating Sylwia was not married. Prior to filing the complaint, he decided he should mark the "was married" box, because Sylwia was married at the time her child was conceived, although not to Nick. He remedied what he considered to be his error by applying correction fluid to cover up the mark next to "was not married," and marking the box next to "was married." (Tr. 438-39, 496). With
respect to the question regarding the living arrangements of the child, in Par. 7, Respondent indicated on the form the child was living with "the mother" because that was an accurate statement. (Tr. 445, 448).
Judge Levinson explained the Court Clerk stamps a large encircled letter "K" on original complaints, in a color different than the file stamp.3 These details are significant for several reasons. A close comparison of the two exhibits clearly shows the revisions in Par. 5 on copies of both documents are identical; that is, the pen and ink insertions filling the boxes on both documents are identical, but the placement of the court clerk's file stamp differs between the original and duplicate, and the two stamps overlay different text on the printed forms. In addition, because the circled K, the case number and the "status date" stamps are also in different positions on the two exhibits, and also overlay different text, the changes to the duplicate (Resp. Ex. 4) must have been made before the Court Clerk's several file stamps had been affixed to the documents, as explained by Respondent, above.
Either Par. 5 of the parentage complaint contained the marking in the box opposite "was married" at the time it was filed, as asserted by the Respondent (and necessarily would have had the same marking at the time Judge Levinson said he would have made his initial examination), or it was modified after it had been filed and after it had been first examined by Judge Levinson. There are no other possible alternatives. Judge Levinson said he could not explain how Respondent's copy of the filed complaint (Resp. Ex. 4) could bear the whited out revision, stating he has "never" understood it. For the reasons explained above, however, Respondent's Exhibit 4 constitutes indisputable evidence of what the complaint looked like at the time it was filed and when it was first examined by Judge Levinson, if he, in fact, made that examination, and that it was not altered after it had been filed with the Clerk of the Court.
The simplest and most reasonable explanations for the mother's marital status box in Par. 5 being "was married" at the time the complaint was filed are that either Judge Levinson erred in thinking he had reviewed the complaint, or, when he reviewed it, he misread "was married" as "was not married." Ignoring Occam's Razor in this scenario would require the acceptance of almost preposterous, if not impossible, circumstances in order to conclude the documents in question were modified between the time of the original filing and when they were examined by Judge Levinson immediately prior to the July 24, 2008, hearing.
For Judge Levinson, the difference can reasonably be ascribed to a simple error; it is not in the slightest a criticism of his performance of his judicial functions. He must necessarily review numerous such files and, as he testified, he normally follows a document inspection routine, but has no specific recollection of having examined the file in question. It has happened to everyone; we see what we expect to see rather than what is actually there. For Respondent, the difference is crucial, because if he caused a filed document to be altered, he ought be quite severely disciplined, and our recommended discipline in this case would be significantly increased. The original parental complaint, when it was filed, must have had the "was married" box marked, and we so find.
We also find no dishonest intent in Respondent's failure to disclose to Judge Levinson information regarding Nick's and Sylwia's divorce actions. We believed Respondent when he stated he did not disclose the actions or his representation of Nick and Sylwia because he did not think disclosure was necessary; the parentage form did not request that information, and the parties knew about each other's divorces. Respondent testified he had calculated 80% of Nick's income, which would go to Renee and their six children, and he seemed to be genuinely
oblivious to how information regarding those children, or Nick's living arrangement with Sylwia, could have had an impact on Judge Levinson's award of support to Sylwia.
Similarly, we do not find Respondent colluded with Nick and Sylwia to defraud Renee and her children. He stated he was aware in July 2008, when the parentage orders were entered, Nick's obligation to Renee and their children took priority over Nick's obligation to Sylwia and her child. That understanding was later confirmed to him by Judge Sullivan's statements in September 2008, and by his reading of the Potts case, which clarifies that a divorced spouse's obligations to the first family must be met before the obligations to the second family can or will be considered.
A problem arose when Vogt's successor counsel, Linda Olson, took over representation of Renee, and became suspicious the support order entered in the parentage action could be used to Renee's detriment and Respondent was conspiring with Nick and Sylwia to reduce income available to Renee. Olson acknowledged she did not conduct any research regarding priority of orders, but she believed she was familiar with the law in that area.
Olson set forth her concerns in an emergency motion to intervene in the parentage action. At the scheduled hearing on the motion, which was the day before Thanksgiving, Respondent was traveling out of state and did not appear in court to testify on his own behalf. Had he appeared, he may have been able to explain his multiple representations and his discussions with opposing counsel, thereby allaying some of the concerns associated with his conduct. Absent Respondent's explanations, however, Judge Levinson concluded that Respondent actively concealed information from the judges in the divorce action and obtained an order of support in the parentage case to diminish child support owed by Nick in the divorce case.
For the reasons set forth above, we disagree with the conclusion Respondent acted surreptitiously, but fully understand how someone who examined Respondent's court filings, without full benefit of his explanations, and without knowledge of his conversations with, and his disclosures to, his opposing counsel and his clients, could conclude he was acting underhandedly to reap an unfair advantage for his clients. Judges Levinson, Betar and Sullivan were rightfully concerned, based on the information they had before them at the time they contacted the ARDC. The fact their suspicions could have been prevented had Respondent acted properly, is further support for our earlier finding that Respondent's actions prejudiced the administration of justice and brought the courts and legal profession into disrepute.
Finally, the Administrator alleged Respondent engaged in dishonest conduct by presenting false evidence on behalf of Sylwia in the Sylwia and Dariusz divorce proceeding. On December 8, 2008, Respondent filed a pre-trial memorandum, with Sylwia's income and expense affidavit attached thereto. With respect to the portion of the form relating to income, which was left blank, the Administrator alleged that Respondent's failure to list the $2,600 per month child support income awarded to Sylwia in the parentage action was false and misleading. We do not agree that any such omission occurred. The evidence showed the order directing Nick to pay $2600 in child support to Sylwia had been vacated by Judge Levinson on November 26, 2008. While Respondent drafted the document prior to the date Sylwia verified the accuracy of the information in the affidavit, it was correct as of that date and as of the date he filed it, and he would have erred had he listed that amount as income to Sylwia as of December 8, 2008. Further, Respondent testified he did not include payments from Dariusz to Sylwia because Respondent and Zarnecki had agreed months earlier that Dariusz would cease making any such
payments. Given these circumstances, we see no impropriety in Respondent's failure to list any income for Sylwia, and we find no such impropriety existed or was caused by Respondent.
For the foregoing reasons, we conclude the Administrator did not prove by clear and convincing evidence Respondent (1) made a statement of fact or law before a tribunal which he knew or reasonably should known was false in violation of Rule 3.3(a)(1); (2) offered evidence to a tribunal he knew to be false in violation of Rule 3.3(a)(4); (3) participated in the preservation of evidence before a tribunal when he knew or reasonably should have known the evidence was false in violation of Rule 3.3(a)(5); or (4) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct.
Having concluded Respondent engaged in wrongdoing, we must determine the appropriate discipline warranted by the misconduct. In determining the proper sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906, 912 (1994).
We also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526, 535 (1991). In mitigation, Respondent cooperated in these proceedings, and presented evidence of his reputation for honesty and truthfulness. See In re Chandler, 161 Ill. 2d 459, 641 N.E.2d 473 (1994). Judge Darrah, in particular, offered compelling testimony of Respondent's good character.
In aggravation, we consider the harm or risk of harm caused by Respondent's misconduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care). In this case Respondent's failure to correct false evidence and his failure to provide pertinent information resulted in the entry of orders not supported by the true circumstances of the cases. Of particular concern is the fact that for a considerable period of time Dariusz Ziembinski was the subject of an enforceable support order for a child he did not father. Respondent's actions also caused unnecessary expense and concern for Renee Kanari, whose attorney conducted research and then filed a motion to intervene in order to protect Renee from suspected collusion by Respondent, Nick and Sylwia. Finally, valuable judicial resources were expended in investigating Respondent's conduct and resolving the confusion that his actions created.
Respondent's suspension in 1991 for failure to submit income tax returns and guaranteeing payment of money to a complaining witness, and then failing to make the payment within the specified time, is also an aggravating factor that we take into account in determining the sanction in this case. See In re Blank, 145 Ill. 2d 534, 585 N.E.2d 105, (1991). While some cases have held that the passage of time diminishes the significance of prior misconduct as an aggravating factor, see e.g. In re Vrdolyak, 98 CH 17, M.R. 16866 (Sept. 22, 2000), we give weight to Respondent's earlier suspension because, as in this case, his actions showed a lack of integrity or respect for his obligations. We are also troubled by the fact that an attorney who has been through the disciplinary process and has had his ethical values called into question could still be lax in his compliance with professional standards.
Keeping in mind Respondent's misconduct and the mitigating and aggravating factors, we now look to relevant case law to guide us in our recommendation of discipline. Although we strive for consistency in our recommendations, we also recognize that each case is unique and must be resolved according to its particular circumstances. In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581 (2009). The Administrator argued that Respondent should be suspended for one year, but that suggestion was predicated on the assumption that we would find all of the misconduct proved, which we did not do.
We found Respondent failed to correct erroneous evidence presented to the court, and engaged in conduct that was prejudicial to the administration of justice. Both parties cited to cases involving the creation or preservation of false evidence. Several of those cases involved specific findings of dishonesty, as well as additional misconduct, and therefore resulted in harsher sanctions than what would be appropriate for this case. See In re Masters, 98 CH 60, M.R. 17674 (Mar. 8, 2002) (attorney suspended for one year for knowingly making false statements and presenting false evidence to a court, and making false statements to a third person); In re Thebeau, 111 Ill. 2d 251, 489 N.E.2d 877 (1986) (one year suspension for attorney who practiced fraud and deceit on a court by misrepresenting the terms of a property transaction, and who also notarized false signatures); In re Passman, 93 CH 573, M.R. 12249 (Mar. 26, 1996) (attorney suspended nine months for preparing a false stipulation to dismiss his wife's wage deduction proceedings, forging the signature of the opposing attorney, and then lying to the court and to the ARDC to cover up his misdeeds); In re Barry, 00 SH 54, M.R. 18782 (Sept. 19, 2003) (attorney suspended for nine months for knowingly making false statements in pleadings to a court, and making false statements to a third person).
Respondent cited two cases which resulted in a minimal sanction, but those cases, in our opinion, are also distinguishable. In In re Davila, 99 CH 108 (Nov. 3, 2000) the attorney was reprimanded for submitting a false answer to one interrogatory. The Hearing Board was impressed by the attorney's mitigating evidence, which included strong character witnesses, a contrite attitude and the fact that he provided much needed legal services to the Hispanic community on a pro bono basis. By contrast, Respondent's misconduct in the present case impacted several cases and the mitigating circumstances were less compelling. In In re Koziol, 92 CH 549, M.R. 8797 (1993) the attorney was censured, on consent, for advancing a petition for dissolution of marriage on behalf of his client after learning that the petition contained false statements. As in this case, the attorney did not intend to defraud the court, but his silence caused a judge to enter an order based upon incorrect facts. Unlike this case, the attorney's conduct was limited to one court matter.
Neither Davila nor Koziol involved an attorney who had been previously disciplined, nor were any other aggravating circumstances noted in those cases. We believe Respondent's conduct in the present case is more egregious than the attorneys' conduct in Davila and Koziol in that he not only failed to inform Judge Betar of misstatements that had been made, he allowed several orders to be entered that were not based on accurate facts and failed to provide relevant information to three judges regarding concurrent proceedings.
In addition to considering the foregoing cases, we must take into account the purposes of the disciplinary process. While the misconduct engaged in by Respondent clearly impinges on the reputation of the legal profession, we do not believe he poses any significant threat to future clients. Therefore, we believe a short suspension from the practice of law is appropriate and will serve to remind other attorneys that members of the legal profession have an affirmative duty to
correct mistakes and ensure that justice is being served. Silence is not an option when false statements are presented to a court, made a part of the public record, and form the basis for the entry of judicial orders.
After considering the nature of the Respondent's misconduct, the aggravating and mitigating factors, the cases discussed above, and the purpose of these disciplinary proceedings, we conclude that a suspension of five months is appropriate. Accordingly, we recommend that Respondent George Charles Rantis be suspended from the practice of law for a period of five months.
Date Entered: January 18, 2010
|Michael C. Greenfield, Chair, Robert D. Smith and Robert M. Karton, Hearing Panel Members.|
1 We evaluate Respondent's conduct under the rules in effect at the time the alleged misconduct occurred, but note the Illinois Rules of Professional Conduct were revised, effective January 1, 2010. Rule 3.3 now provides, in part: "if a lawyer, the lawyer's client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measure, including, if necessary, disclosure to the tribunal. . . ."
2 Although the Court has stated that violations of Rule 8.4(a)(5) and Supreme Court Rule 770 are "generally" considered subsidiary charges that are dependent on proof of other, more specific violations, (In re Storment, 203 Ill. 2d 378, 397, 786 N.E.2d 963 (2002)), several cases have found misconduct based on these rules alone. See e.g. See also In re Moll, 01 CH 46, M.R. 20918 (Sept. 20, 2006); In re Cwik, No. 89 CH 690 (Mar. 9, 1993); See also In re Smith, 168 Ill. 2d 269, 285-88, 659 N.E.2d 896 (1995). Recently the Review Board, in an opinion approved by the Supreme Court, stated that "a violation of another rule is not necessarily a prerequisite to a finding that a respondent violated Rule 8.4(a)(5) or Supreme Court Rule 770." In re Wiggins, 04 CH 33, M.R. 22015 (Mar. 17, 2008).
3 Judge Levinson's explanation of the circled K appears on page 221 of the transcript, from line 9 through line 19, and is somewhat difficult to follow until the reader realizes the court reporter made a "phonetic error by using the word "case" in two instances, instead of the letter "K."