Filed March 8, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ROSS LEE HAITH, II,
Commission No. 2009PR00139
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on November 8, 2010 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of John B. Whiton, Chair, Nam H. Paik and Damascus Harris. Melissa Smart and Peter Apostol represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Ross Lee Haith, II did not appear in person or by counsel.
On December 31, 2009 the Administrator filed a one-count Complaint alleging Respondent engaged in misconduct in connection with his representation of Alfred Smith in post-dissolution of marriage proceedings. Specifically the Complaint charged that Respondent filed frivolous and unwarranted pleadings, made false statements to a court, made false or reckless statements regarding the integrity of a judge, and engaged in dishonest conduct.
On March 1, 2010 Respondent filed his Answer to the Complaint in which he admitted some of the factual allegations relating to events that occurred in the Smith post-dissolution proceedings, but denied engaging in any professional misconduct.
The hearing in this matter was originally set for September 9, 2010. On August 26, 2010 Respondent's counsel filed a motion, with supporting affidavit, requesting that the hearing be continued. The hearing panel Chair granted the motion and the hearing was reset for November 8, 2010 at 9:00 a.m.
Commission Rule 272 states, in part:
The Chair may continue a hearing or prehearing conference at the Chair's discretion. No hearing or prehearing conference shall be continued at the request of any party except upon written motion supported by affidavit. No hearing shall be continued at the request of a party more than once except under extraordinary circumstances. Engagement of counsel shall not be deemed an extraordinary circumstance.
On October 15, 2010 Respondent's counsel filed a second motion to continue the hearing date, with supporting affidavit, asserting that Respondent's character witnesses could not be available on November 8, 2010. The Chair denied that motion. Thereafter on November 1, 2010, Respondent's newly-retained counsel Charles D. Allen filed a third motion to continue the hearing date, with no supporting affidavit, stating that he had a scheduling conflict on the date of the hearing. By order of November 3, 2010, the Chair denied that motion.
On November 8, 2010, neither Respondent nor his counsel appeared at the scheduled time for hearing. The commencement of the hearing was delayed for forty minutes while the clerk's staff attempted to make contact with Respondent or his counsel by telephone. The attempts were unsuccessful and the hearing proceeded.
After a mid-morning break in the proceedings, counsel for the Administrator reported that he had received a voicemail from Respondent's counsel, Charles Allen, at 9:46 a.m., but the message was garbled. Counsel attempted to return the call and left a voicemail advising attorney Allen that the hearing was proceeding. No further calls were received from Allen. (Tr. 25-26).
At the commencement of the hearing, counsel for the Administrator noted that Respondent, in his Answer to the Complaint, neither admitted nor denied numerous allegations regarding the contents of specific documents, and instead stated that the documents speak for themselves. The Administrator made a motion that those allegations be deemed admitted, and that motion was granted.1
The Administrator called one witness and introduced thirty-six exhibits which were admitted into evidence. The evidence, combined with the admitted allegations, established the following facts.
On November 25, 1986, in a matter pending in the Circuit Court of Cook County as Alfred Smith v. Geneva Smith, 84 D 8635, the court entered a judgment of dissolution of marriage with respect to the Smiths. The judgment provided, in part, that Alfred and Geneva would each receive one-half of Alfred's Commonwealth Edison pension at the time Alfred decided to receive his pension, and that Alfred would also make permanent maintenance payments to Geneva of $650 per month. (Adm. Ex. 1).
In December of 1999, Alfred retired from his employment with Commonwealth Edison and shortly thereafter, he began receiving his pension. On January 24, 2000, Geneva, through her attorney Jane Fields, filed a post-decree petition for a rule to show cause and to enforce the judgment for dissolution, including the provision requiring Alfred to pay Geneva one-half of his pension. The Honorable Raymond Figueroa presided over the matter. (Adm. Ex. 2).
On March 14, 2000, the firm of Luther Spence and Associates filed an appearance in the Smith case on behalf of Alfred. Respondent, who was employed by Luther Spence, appeared in
court on behalf of Alfred. On April 7, 2000, the Spence firm filed a "Petition to Terminate and/or Modify Maintenance" on behalf of Alfred, requesting that Alfred's maintenance obligation to Geneva be reduced or terminated due to, in part, changes in Geneva's financial circumstances which would be revealed in the course of discovery. (Adm. Ex. 3).
On April 11, 2000, Fields filed a motion to strike and dismiss Alfred's April 7, 2000 petition arguing, in part, that the petition did not include affidavits or facts indicating that the maintenance obligation should be modified. On April 24, 2000, the court entered an order granting Geneva's motion to strike, and dismissing Alfred's April 7, 2000 petition.
On or about June 26, 2000, the Spence firm filed a motion for substitution of Judge Figueroa for cause with an attached affidavit by Respondent stating, in part, that Judge Figueroa had failed to consider his arguments. The motion did not attach transcripts of any proceedings before Judge Figueroa. Chief Judge Timothy Evans transferred the Smith case to the Honorable Thaddeus Machnik, and on June 27, 2000, Judge Machnik entered an order denying the June 26, 2000 motion for substitution for cause on the basis that Respondent had failed to meet his burden of proof. Thereafter, on his own motion, Judge Figueroa recused himself and Presiding Judge Moshe Jacobius transferred the case to the Honorable Jordan Kaplan. (Adm. Exs. 4, 5).
In January 2001, Respondent left the employment of the Spence firm and on January 22, 2001 he appeared in court in the Smith case on his motion to substitute his appearance for Spence. On January 29, 2001, he filed a motion for substitution of Judge Kaplan for cause asserting that Judge Kaplan had engaged in "intentional deceit" by not allowing Respondent to file a substitute appearance for Alfred without the signatures of Alfred and attorney Spence. Respondent did not attach transcripts of any proceedings before Judge Kaplan to his motion. (Adm. Ex. 7).
The Smith case was transferred to the Honorable Michele Lowrance and on January 29, 2001, after a hearing held on the same day, Judge Lowrance entered an order denying Respondent's motion for substitution of judge for cause against Judge Kaplan, on the basis that Respondent had failed to meet his burden. (Adm. Ex. 8).
Thereafter, on or about February 8, 2001, Respondent filed a motion for substitution of judge as a matter of right, pursuant to 735 ILCS 5/2-1001(a)(2)(i) which states that "each party shall be entitled to one substitution of judge without cause as a matter of right." Judge Lowrance granted Respondent's motion on the same day and transferred the case to the Honorable Elizabeth Rivera. (Adm. Ex. 9).
On May 2, 2001, Respondent filed a motion to withdraw his appearance as additional counsel and file his appearance as substitute counsel for Alfred. On May 18, 2001, Judge Rivera gave Respondent leave to enter his substitute appearance on behalf of Alfred. (Adm. Ex. 10).
On July 13, 2001, Respondent filed a "Petition to Vacate Permanent Maintenance Order Entered on November 25, 1986" which requested, in part, that the court terminate Alfred's maintenance obligation to Geneva.
In the first paragraph of the July 13, 2001 petition, Respondent stated as follows:
The court entered an order on November 25, 1986 for Alfred Smith to pay Geneva Smith permanent maintenance of $650.00 from the time the order was entered until December of 1999. (emphasis added).
Respondent had previously reviewed the November 25, 1986 order which did not state that maintenance would terminate in December 1999 and, in fact, did not mention the date of December 1999. (Adm. Exs. 1, 11).
In the fifth paragraph of the July 13, 2001 petition, Respondent stated as follows:
The November 25, 1986 order stated that maintenance was to be paid up to the time Alfred Smith retired, then a portion of his pension benefits would become due and payable to Geneva Smith.
The November 25, 1986 order did not state anywhere that maintenance would terminate upon Alfred's retirement. (Adm. Exs. 1, 11).
The eleventh paragraph of Respondent's July 13, 2001 petition stated as follows:
According to the November 25, 1986 Order, Geneva Smith was never due both maintenance payments and pension benefits.
The November 25, 1986 order had explicitly awarded Geneva one-half of Alfred's pension, in addition to maintenance payments of $650 per month. (Adm. Exs. 1, 11).
On August 20, 2001, Fields filed a "Petition for Attorney's Fees Pursuant to Supreme Court Rule 137" in which she alleged, in part, that Respondent's July 13, 2001 petition contained false statements and had been filed in bad faith. On October 18, 2001, Judge Rivera entered an order finding, in part, that Respondent had made false statements in his July 13, 2001 petition. Thereafter, Respondent filed a motion to reconsider the October 18, 2001 order. (Adm. Ex. 12).
In an order dated May 7, 2002 Judge Rivera sanctioned Respondent under Illinois Supreme Court Rule 137, granted Geneva's August 20, 2001 petition for attorney's fees, and denied Respondent's motion to reconsider the October 18, 2001 order. Judge Rivera found that Respondent had knowingly made false statements in his July 13, 2001 petition and that he had filed the petition in bad faith. Judge Rivera did not impose a monetary sanction against Respondent. Thereafter, Judge Rivera, on her own motion, transferred the Smith case to the Honorable Charles Winkler for further proceedings. (Adm. Ex. 13).
At all times alleged in this complaint, 735 ILCS 5/2-1401 provided, in part, as follows:
(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section.
(c) . . . the petition must be filed not later than 2 years after the entry of the order or judgment. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.
As of October 15, 2002, Respondent knew that 735 ILCS 5/2-1401 allowed Alfred to file a petition for relief from the November 25, 1986 judgment no more than two years after the entry of the judgment, absent a showing of legal disability, duress, or fraudulent concealment in relation to Alfred. On October 15, 2002, Respondent filed a petition, purportedly pursuant to 735 ILCS 5/2-1401, which sought to vacate the November 25, 1986 judgment as a "misapplication of the law." Respondent did not allege legal disability, duress, or fraudulent concealment in relation to Alfred. On March 6, 2003, Judge Winkler entered an order denying Respondent's October 15, 2002 petition due to a lack of diligence by Alfred. On April 7, 2003, Respondent filed a motion for reconsideration of the March 6, 2003 order. (Adm. Exs. 15, 16).
On May 29, 2003, Respondent filed a motion seeking that Judge Winkler voluntarily recuse himself from the Smith case, alleging, in part, that Judge Winkler "had no intention of weighing the merits of the arguments listed in petitioner's 2-1401 motion." On June 3, 2003, Judge Winkler denied Respondent's April 7, 2003 motion for reconsideration. (Adm. Ex. 17).
On October 21, 2003, on Geneva's motion, Judge Winkler entered an order requiring Alfred to immediately commence the sale of his property located in Bolingbrook, Illinois. The order further required Alfred to provide a copy of a real estate broker listing agreement to Geneva's counsel by November 12, 2003. (Adm. Ex. 18).
On November 3, 2003, Fields filed a motion for entry of a judge's deed, which alleged that Alfred had not taken any steps to sell the Bolingbrook property. On November 14, 2003, Judge Winkler entered an order giving Respondent until November 28, 2003 to respond to Fields' motion for entry of a judge's deed. (Adm. Ex. 19).
On or about December 8, 2003, Respondent caused Judge Winkler to be served with a subpoena commanding him to appear in his own courtroom to testify on December 16, 2003. On
December 10, 2003, Respondent filed a 131-paragraph motion for substitution of judge for cause against Judge Winkler, which alleged, in part, that Judge Winkler had shown favoritism to Fields. Respondent did not attach transcripts of any proceedings before Judge Winkler to his motion. The Smith case was transferred to the Honorable Barbara Ann Riley. (Adm. Exs. 20, 21).
On December 16, 2003, the Illinois Attorney General filed a motion to quash Respondent's December 8, 2003 subpoena directed to Judge Winkler, on the basis that Judge Winkler could not be compelled to testify against himself due to judicial immunity, and because a judge cannot be questioned regarding his mental processes in arriving at a decision. On January 26, 2004, Judge Riley entered an order denying Respondent's December 10, 2003 motion for substitution of Judge Winkler for cause, on the basis that Respondent had failed to establish the prejudice required to warrant the substitution of Judge Winkler. Judge Riley also found that the motion to quash Respondent's December 8, 2003 subpoena directed to Judge Winkler was moot. (Adm. Exs. 22, 23).
As of January 26, 2004, Respondent knew that 735 ILCS 5/2-1001(a)(2)(i) limited him to filing one motion for substitution of a judge as a matter of right. On January 26, 2004, Respondent filed a second motion for substitution of judge as a matter of right, in which he stated that "this is the first request for substitution by the petitioner." Respondent's statement that no substitution of judge as matter of right had been previously requested was false as Respondent had previously filed a motion for substitution of judge as a matter of right on or about February 8, 2001, and that motion was granted on February 8, 2001. (Adm. Ex. 24).
On January 26, 2004, Judge Riley entered an order denying Respondent's second motion for substitution of judge as a matter of right, on the basis that Respondent had previously filed a
motion for substitution as a matter of right. The case was then transferred back to Judge Winkler. On or about January 28, 2004, Geneva's counsel filed a motion for Supreme Court Rule 137 sanctions against Respondent alleging, in part, that Respondent had intentionally and in bad faith filed a second motion for substitution as a matter of right. (Adm. Ex. 23).
Prior to November 15, 2004, the Smith case was transferred to the Honorable Mark Lopez. On November 15, 2004, following a hearing, Judge Lopez entered an order granting Geneva's motion for Supreme Court Rule 137 sanctions and entering a $10,299.65 judgment against Respondent and in favor of Geneva's counsel. Judge Lopez found, in part:
- that Respondent's October 15, 2002 petition pursuant to 735 ILCS 5/2-1401 had not been well-grounded in fact nor warranted by existing law, and did not raise any good faith arguments for the extension, modification, or reversal of existing law; and
- that Respondent's June 26, 2000, [January 29, 2001], and December 10,  motions for substitution of judge for cause, as well as his second filing of a motion for substitution of a judge as a matter of right on January 26, 2004, had been brought in bad faith and had needlessly increased the cost of the litigation to Geneva.
(Adm. Ex. 26).
On December 15, 2004, Respondent filed a motion to reconsider in relation to the November 15, 2004 order alleging that Judge Lopez had falsely referred to a May 7, 2002 order entered by Judge Rivera, which Respondent claimed did not exist. That motion was subsequently denied. (Adm. Exs. 27, 30).
On January 7, 2005, Respondent filed a fourth motion for substitution for cause. Respondent's motion alleged, in part, that Judge Lopez had intentionally made false statements in the November 15, 2004 sanctions order, and that Judge Lopez had discriminated against him. Respondent did not attach transcripts of any proceedings before Judge Lopez to his motion. The
court transferred the case to Judge John Steele and on January 20, 2005, following a hearing, Judge Steele entered an order denying the motion. (Adm. Exs. 28, 29).
On February 22, 2005, Respondent filed a motion to reconsider the court's denial of his January 7, 2005 motion for substitution of Judge Lopez. On March 3, 2005, Judge Steele entered an order denying Respondent's motion to reconsider, and the following day the case was transferred back to Judge Lopez. (Adm. Ex. 31).
On March 10, 2005, on Geneva's motion for sanctions, Judge Lopez sanctioned Respondent under Rule 137, finding that Respondent's January 7, 2005 motion for substitution of a judge for cause had caused undue delay. Judge Lopez did not impose a monetary sanction against Respondent. (Adm. Ex. 32).
On October 19, 2006, the Illinois Appellate Court entered an order affirming the May 7, 2002, November 15, 2004, and March 10, 2005 Rule 137 sanction orders against Respondent. (Adm. Ex. 33).
Mark Lopez testified he is an associate judge in the Domestic Relations Division of the Circuit Court of Cook County. In February 2004, he took over the post-decree call from Judge Winkler and inherited the Alfred and Geneva Smith case. At that time he read the pending pleadings. (Tr. 27-28).
Judge Lopez stated the Smith case was unusual in the manner in which it was conducted because Respondent seemed determined not to conclude the proceedings. He recalled that after Judge Winkler denied Respondent's Petition to Vacate Permanent Maintenance Order, Respondent filed a petition for relief which sought the same result by a different motion. Judge Lopez denied that petition. (Tr. 29-31; Adm. Exs. 11, 14, 26).
Judge Lopez was aware that Respondent filed several motions for substitution for cause in the course of the Smith case. On November 15, 2004 Judge Lopez imposed a $10,000 sanction against Respondent in part because Respondent had attempted a second substitution as of right, with three intervening attempts to substitute for cause. Judge Lopez stated the monetary sanction was the largest he had ever imposed against an attorney. (Tr. 34-35).
Following Judge Lopez's sanction order, Respondent filed a motion to reconsider alleging that Judge Lopez denied him an opportunity to be heard on Respondent's own motion for sanctions on or about June 29, 2004. Judge Lopez denied the motion to reconsider, and stated he did not deny Respondent an opportunity to be heard. (Tr. 36; Adm. Exs. 27, 30).
On January 7, 2005 Respondent filed a motion for substitution of Judge Lopez for cause, accusing the judge of intentionally making false references in his November 15, 2004 order to a prior order entered by Judge Rivera on May 7, 2002. The motion also stated that race played a part in Judge Lopez's November 15, 2004 decision. Judge Lopez denied making any false references to Judge Rivera's order, which he recalled reading when he reviewed the file. He noted that Respondent and his opposing counsel later stipulated that they had never received Judge Rivera's order. Judge Lopez denied that race played any part in his decision. (Tr. 37-39; Adm. Exs. 28, 36).
Judge Lopez stated that prior to Respondent's motion no attorney had ever filed a motion for substitution for cause accusing him of false statements or alleging that his decisions were racially motivated. When asked about the effect of Respondent's allegations, Judge Lopez stated he was surprised by the allegation of false statements and annoyed by the accusation of racial bias. With respect to the latter, he stated he takes great pride in never having that type of issue involved in his cases. (Tr. 38-39).
On March 10, 2005 Judge Lopez sanctioned Respondent again. Judge Lopez testified that Respondent's repeated filing of motions for substitution for cause forced the opposing party to appear and defend the allegations against the court, and also placed a burden on the judicial system in that the motions had to be heard immediately. (Tr. 40-41; Adm. Ex. 32).
In the March 10, 2005 order, Judge Lopez directed that neither party would be allowed to file any further post decree pleadings without leave of court. He stated that such an order is unusual, but he wanted to have greater ability to control pleadings by Respondent, who seemed determined not to conclude the litigation. He noted that whenever he struck Respondent's motions Respondent would file something else. By imposing a requirement of court approval, Judge Lopez could review the substance of a pleading to ensure that it had not already been addressed by the court. (Tr. 41-42; Adm. Ex. 32).
Judge Lopez stated that Respondent's conduct needlessly prolonged the litigation. Respondent's underlying petition was straightforward and could have been addressed fairly quickly, but every time a substantive issue was presented for hearing, Respondent would file a motion for substitution of judges that resulted in delay. Judge Lopez estimated that ninety to ninety-five percent of his time on the Smith case was spent dealing with accusations made by Respondent, and he addressed the merits of the case on only a couple of occasions. He typically set aside an entire afternoon to hear Respondent's arguments which, like his written motions, were extensive and repetitive. (Tr. 43, 45).
Judge Lopez recalled that even after the appellate court ruled on the case, Respondent returned to the trial court to ask for relief. Judge Lopez was willing to grant a motion to strike Respondent's request, but in the spirit of trying to resolve issues he sat down with the parties. He advised Respondent that his client would only obtain relief by agreement of the parties, but
even then Respondent was reluctant to accept a settlement. Judge Lopez found Respondent's resistance to be disturbing. (Tr. 44).
Andrea Watson testified she is deputy clerk of the Attorney Registration and Disciplinary Commission. In that capacity, she had a conversation with Respondent's counsel, Charles Allen, after Allen received the hearing panel Chair's November 3, 2010 order denying Respondent's motion to continue the hearing. Watson recalled that Allen advised her he did not understand why the motion to continue was denied, and asked if he should resign. Watson told Allen she could not provide him with legal advice, and he should file an appropriate motion by facsimile transmission. She supplied a fax number to Allen, but never received a motion. (Tr. 47-48).
Watson believed Allen was aware the hearing was scheduled for November 8, 2010 at 9:00 a.m. because he stated he was going to be out of town on that date. (Tr. 48).
Counsel for the Administrator stated on the record that Respondent has not been previously disciplined.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator's Complaint charged Respondent with filing unwarranted and frivolous pleadings, impugning the integrity of judges, and making false statements to tribunals. 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 (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).
The evidence in this case showed that the post-dissolution proceedings in the Arthur and Geneva Smith matter began in January 2000 when Geneva filed a post-decree petition seeking enforcement of a 1986 judgment against her ex-husband. Respondent, as an employee of the Spence law firm, represented Arthur and filed pleadings on his behalf and then, after leaving the Spence firm, he continued to represent Arthur.
During the pendency of the post-dissolution proceedings, the case was assigned to various judges, including Judges Figueroa, Kaplan, Winkler and Lopez. Between June 2000 and January 2005, Respondent filed motions to substitute each of those four judges for cause and, with respect to Judge Winkler, he also filed a motion requesting that the judge voluntarily recuse himself. Recurring accusations in the motions include the judges' failure to consider Respondent's arguments or allow him time to present his arguments, favoritism shown to Respondent's opposing counsel, and rudeness and hostility toward Respondent. Respondent also accused particular judges of acting maliciously toward him, making intentionally false statements, and engaging in racial discrimination. Each of Respondent's motions was denied.
We have reviewed Respondent's motions as well as court rulings relative to those motions and, for the reasons that follow, have reached the conclusion that the motions lacked merit, were frivolous, and were filed for the purposes of burdening the court and the opposing party and to delay the proceedings. We also find that the motions contained false and reckless allegations regarding the integrity and honesty of the judges.
Respondent was responsible for knowing the standard by which his motions would be judged and the heavy burden that he carried in proving his allegations. In In re Estate of Hoellen, 367 Ill. App. 3d 240, 854 N.E.2d 774 (1st Dist. 2006) the court stated that the burden of overcoming the presumption of judicial impartiality rests with the party asserting bias, and that
party must present evidence of personal bias stemming from an extrajudicial source and evidence of prejudicial trial conduct. Erroneous findings and rulings "are insufficient reasons to believe that the court had personal bias or prejudice for or against a litigant." Further, proving prejudice so as to justify a substitution for cause is a heavy burden and the conclusion of prejudice will not be made lightly. In re Marriage of Peterson, 319 Ill. App. 3d 325, 744 N.E.2d 877, 888 (1st Dist. 2001). Notwithstanding Respondent's difficult burden, most of his accusations reflected his perception that he was being treated unfairly compared with the manner in which the judges treated his opposing counsel. Although his motions were lengthy and repetitive (one being 131 paragraphs), he did not attach or cite to the transcript of any arguments or hearings before the court, nor did he cite any reason, other than racial discrimination, as to why any of the judges would single him out for unfair treatment or hostile behavior.
We note that the motions for substitution for cause typically followed on the heels of a ruling that was adverse to Respondent's client. It is obvious to us that his motions were filed in reaction to those rulings, either as a way to stall the proceedings or in the hope he would find greater success with another judge. Although we did not have a chance to hear Respondent testify, due to his failure to appear at hearing, we glean from his filings his inability to accept adverse rulings, as well as a tenacity that is both offensive and counterproductive to the judicial process.
Particularly egregious were Respondent's statements maligning the integrity and honesty of the judges. He alleged that Judge Figuero failed to consider his arguments, Judge Kaplan engaged in "intentional deceit," Judge Winkler "had no intention of weighing the merits of the arguments," and Judge Lopez intentionally and maliciously made false statements and engaged in racial discrimination. Again, Respondent's motions cited to no hearing transcripts that would
support those allegations or any reason why the judges would bear any malice toward Respondent.
With respect to Respondent's allegation that Judge Lopez made false statements in a November 15, 2004 written order by inaccurately referencing a previous sanction order entered by Judge Rivera on May 7, 2002, we have reviewed both orders and find that Judge Lopez's order correctly summarized Judge Rivera's previous findings. Respondent's accusations seemed to stem from the fact, as Judge Lopez noted, that Respondent and his opposing counsel had not received Judge Rivera's order. That circumstance, however, does not justify the conclusion that Judge Lopez made "intentional misrepresentations" regarding Judge Rivera's order, that the false statements were made with the "intent to damage [Respondent's] legal reputation," or that the judge engaged in "malicious" conduct that "should be grounds to review his fitness to remain on the bench." Respondent could have cleared up any confusion by simply stating that he had not seen the May 2002 order and making proper inquiry as to its content. Instead, as with his other motions for substitution, Respondent chose to attack the judge's integrity and impartiality in a manner that was completely out of proportion to statements made in the order.
As to any alleged racial discrimination, Judge Lopez testified credibly that his rulings were not motivated by racial bias or favoritism and he expressed annoyance that those allegations were made. He stated he has never encountered any similar accusations of racial bias and takes pride that the issue has not been raised in any of his cases.
We take note that Respondent's motions for substitution for cause were not only denied, they also gave rise to sanctions imposed against him. In November 2004, Judge Lopez issued a written opinion sanctioning Respondent individually for conduct which included his filing of the first three motions for substitution for cause. Judge Lopez specifically found that Respondent
acted in bad faith. Not surprisingly, shortly after that ruling Respondent filed his motion to substitute Judge Lopez for cause. That motion was also denied, and Respondent was further sanctioned for the additional delay caused by that fourth motion. In addition, Judge Lopez took the extraordinary step of prohibiting either party from filing any further post decree pleadings without leave of court. Judge Lopez testified that the order was necessary to gain control over the proceedings.
The sanction orders imposed by Judge Lopez were upheld on appeal. The appellate court observed that the trial court had "suffered through a nightmare" due, in part, to Respondent and his client's willingness to act "in contravention of court orders, the rules of the court, and codes of professional conduct." With respect to the motions for substitution for cause, the appellate court noted that because Respondent's serious accusations "were found to be completely unfounded, and apparently as a result of the trial court's ruling against him or a desire to stall proceedings, they were unprofessional and sanctionable."
The Supreme Court has stated that "although a civil judgment may not be the only factor of consideration for a Hearing Board, it nevertheless may be a component in the greater whole of the Board's decision." See In re Owens, 144 Ill. 2d 372, 581 N.E.2d 633, 636 (1991). In this case the orders denying Respondent's motions for substitution, Judge Lopez's findings in his sanction orders, and the findings of the appellate court reinforce our conclusion that Respondent's motions had no merit and that he acted in bad faith.
We conclude that Respondent engaged in misconduct by filing the motions for substitution and voluntary recusal. We emphasize that our conclusion of impropriety is based on the combination of pleadings filed by Respondent over the course of several years, rather than on any one pleading. That four judges presiding over the same case could all exhibit favoritism and
bias is simply unbelievable, and Respondent's reckless allegations that they did so is an insult both to them personally and to the judicial system. Respondent's pattern of filings and similarity of allegations, therefore, weigh heavily in our determination.
Respondent's frivolous and unwarranted filings were not limited only to motions for substitution of a judge. In December 2004, two days before he filed his motion to substitute Judge Winkler, Respondent caused a subpoena to be served upon Judge Winkler commanding him to appear in his own courtroom to testify. The Administrator charged that the subpoena, which followed Judge Winkler's entry of an order requiring Respondent's client to sell property to satisfy his obligations to Geneva and her counsel, was frivolous and unwarranted, as the privilege of judicial immunity barred Respondent from compelling the judge to testify against himself. Although the subpoena does not specify the subject matter of inquiry, we can assume that Respondent's intent was to examine Judge Winkler regarding the same allegedly prejudicial actions and decisions that were outlined in Respondent's motion for substitution. We find that the subpoena was part of Respondent's frivolous course of conduct intended to delay the implementation of Judge Winkler's order. In addition, the Illinois Supreme Court has stated that "allowing a party to require a judge presiding in a case to testify or to submit to a discovery deposition in the proceedings without the party's first asking leave to do so, would compromise the authority and dignity of the court . . . ." People of the State of Illinois v. Ernest, 141 Ill. 2d 412, 422, 566 N.E.2d 231 (1990).
For the foregoing reasons, we find the Administrator proved by clear and convincing evidence that Respondent advanced a claim that he knew was unwarranted under existing law without a good-faith argument for an extension, modification, or reversal of existing law, in violation of Rule 1.2(f)(2); brought or defended a proceeding, or asserted or controverted an
issue therein, when there was no basis for doing so that was not frivolous in violation of Rule 3.1; used means that had no substantial purpose other than to embarrass, delay, or burden a third person in violation of Rule 4.4; and made a statement he knew to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge in violation of Rule 8.2.
Respondent was charged with engaging in dishonest misconduct with respect to two filings. Early in the Smith proceedings he filed a petition to vacate the permanent maintenance order that was entered in 1986. He made several statements in that petition that were, by his own admission, inaccurate. First, he stated that the 1986 order directed Alfred to pay Geneva permanent maintenance from the time the order was entered until December of 1999 when, in fact, the order did not state that maintenance would terminate in December 1999 or at any other time. Second, he represented that Alfred was to pay maintenance only "up to" the time he retired, even though the 1986 order did not state that maintenance would terminate upon Alfred's retirement or even mention his retirement. Third, Respondent stated in the petition that according to the 1986 order, Geneva was never due both maintenance payments and pension benefits. The order, however, explicitly awarded Geneva one-half of Alfred's pension in addition to monthly maintenance payments.
In his answer to the complaint Respondent admitted reviewing the 1986 order prior to submitting his petition and admitted the inaccuracies in his petition, but denied that his statements were anything other than honest mistakes. He portrayed his statements as "argument" rather than intentional misrepresentations.
Although we did not hear Respondent's testimony regarding this issue, we can infer motive and intent from conduct and circumstances. See In re Stern, 124 Ill. 2d 310, 529 N.E.2d
562 (1988). In this case Respondent's admission that he reviewed the 1986 order, which was at the heart of his petition, is persuasive evidence that his statements were, in fact, intentionally made. The 1986 judgment was not lengthy. Of the two and one-half pages which comprise the judgment, the first page provides information regarding the marriage and the parties' employment. The final page contains directives to the parties regarding maintenance, debts, division of Alfred's pension and attorney's fees. The paragraphs are direct and explicit, and leave no room for confusion or interpretation as to the payment of maintenance and pension benefits.
We simply cannot believe that anyone reading the paragraphs in the 1986 judgment would honestly put forth the assertions contained in Respondent's petition, which assertions, we note, were favorable to his client. Therefore, we reject his defense, as stated in his answer, that he did not make any intentional misrepresentations. We also note that Judge Rivera, in ruling upon Geneva Smith's request for attorney's fees for having to respond to Respondent's petition, concluded that Respondent made intentionally false statements in his petition. Judge Rivera's resulting sanction order against Respondent and his client was upheld on appeal.
Respondent made another false and dishonest statement in January 2004 when he represented in a verified motion to substitute a judge as a matter of right that the motion was his first such request. Contrary to his sworn assertion, he had previously filed a motion to substitute a judge as of right on February 8, 2001, which motion was granted on that same day. In Respondent's answer to the Administrator's Complaint he admitted he was aware that 735 ILCS 5/2-1001(a)(2)(i) provides "each party shall be entitled to one substitution of judge without cause as a matter of right" and admitted that his statement in his January 2004 motion was incorrect.
He denied, however, that he recalled filing any previous motion and therefore denied that his 2004 statement was intentional.
We do not accept Respondent's professed lack of recall concerning his prior motion. Although there was a three year gap between the filing of his two motions to substitute as a matter of right, his February 2001 motion was memorable for being filed almost immediately after Judge Lowrence denied his motion to substitute for cause, and the motion to substitute as of right did result in the case being transferred. In fact, of all Respondent's many attempts to have the Smith case reassigned, the February 2001 motion was the only one that was successful. We further note that the order granting the February 2001 motion bears Respondent's handwritten name and address. Under the circumstances, we reject the contention that Respondent was unaware of his previous filing at the time he filed his motion in January 2004. In so finding, we are in accord with Judge Lopez who also did not accept Respondent's claim of inadvertent error, and so held in his order imposing sanctions upon Respondent.
For the foregoing reasons, we find the Administrator proved by clear and convincing evidence that Respondent made a statement of material fact to a tribunal which the lawyer knows or reasonably should know is false in violation of Rule 3.3(a)(1), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). We further find that Respondent engaged in conduct prejudicial of 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 legal profession into disrepute, in violation of Supreme Court Rule 770.
Having found that Respondent engaged in the wrongdoing charged in the Complaint, 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 (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 (1991). By failing to appear at the hearing, Respondent forfeited his opportunity to present any evidence of mitigating circumstances. We were informed, however, that Respondent has not been previously disciplined.
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). As Judge Lopez pointed out, Respondent's motions in the Smith proceedings were often duplicative, burdensome to the other parties and to the court system, and needlessly prolonged the litigation. In addition, Respondent's derogatory statements concerning various judges, and in particular the allegations of dishonesty and racial bias, posed a genuine risk to the reputations of those judges. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003).
We also consider in aggravation the fact that Respondent did not engage in an isolated instance of misconduct. Rather, his frivolous and harassing tactics continued over the course of several years and reflected a pattern of misconduct. See In re Lewis, 138 Ill. 2d 310, 562 N.E.2d 198 (1990); In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995).
Respondent's failure to attend and participate in the hearing on November 8, 2010 further aggravates his misconduct. His absence not only demonstrates his disrespect for the disciplinary process, but also demonstrates his indifference to his own professional fate. See In re Brody, 65 Ill. 2d 152, 357 N.E.2d 498 (1976) (an attorney's failure to cooperate in his or her own disciplinary proceeding demonstrates a want of professional responsibility and is a factor to be considered in aggravation for the purpose of determining an appropriate sanction). We take note that on December 8, 2010, one month after the hearing in this matter, Respondent filed a motion in which he advised the panel of his illness on the date of the hearing, and requested an opportunity to be heard in this matter. Specifically, Respondent represented that from 8:15 a.m. until noon on November 8, 2010, he was in the emergency room at Hines VA hospital where he was diagnosed as suffering from bronchitis. He did not claim that he made any attempt on that date to notify the clerk's office of his hospital visit and, although he submitted his own affidavit in support of his motion, he offered no affidavit or statement from any medical personnel. As Respondent's motion was improper under Commission Rule 284 and unsupported by reliable evidence, it was denied by order of January 3, 2011 and has no bearing on our views regarding the aggravating nature of his failure to appear at the hearing.
The Administrator suggested that the misconduct in this case warrants a suspension of six months and until further order of the Court and requested, as a condition of reinstatement, that
Respondent complete the ARDC Professionalism Seminar. We believe the Administrator's suggestion is appropriate and adequately supported by precedent.
In In re Holman, 96 CH 679, M.R. 12939 (Nov. 26, 1996) the attorney was suspended for five months on consent for filing a complaint alleging his client had been terminated in retaliation for filing a workers' compensation claim, without factual or legal basis for that position, and providing false responses to discovery requests. In In re Chiang, 07 CH 67, M.R. 23022 (May 18, 2009) the attorney was suspended for five months until further order of court, with the last month stayed and the attorney placed on a two year period of probation, for advancing an unwarranted claim and making baseless accusations of racial discrimination and laziness against the judges of the Seventh Circuit Court of Appeals. He also made a false statement in a pleading and demonstrated incompetence in relation to several appeals. Probation was warranted in that case because the attorney needed further education and supervision in the substantive area of law in which he practiced.
We also consider In re Andion, 95 CH 808, M.R. 11898 (Jan. 23, 1996) a case in which the attorney violated court orders and rules, failed to withdraw from employment when he should have known his client was conducting vexatious litigation, and filed a baseless pleading which, among other things, accused a judge of issuing an order for racially-motivated reasons. On the Administrator's petition for reciprocal discipline, the attorney was suspended for one year with the suspension stayed after sixty days subject to conditions imposed by the State of California. In People ex. rel Chicago Bar Association v. Standidge, 333 Ill. 361, 164 N.E. 844 (1928) the Court suspended an attorney for six months for bringing a meritless suit against three appellate judges who had ruled against him, and for accusing them of wantonly making false findings. Finally, in a recent case the Review Board recommended to the Supreme Court that an attorney
be suspended for five months, and until he completes the ARDC Professionalism Seminar, for filing frivolous and unwarranted pleadings in three cases and impugning the integrity of a judge. In re Dore, 07 CH 122 (Review Bd. Feb. 25, 2011). In that case the attorney participated in the proceedings and did not engage in dishonest conduct.
Based on the foregoing cases and Respondent's misconduct, we believe a suspension of six months is appropriate in this case. We are also of the opinion that the suspension should continue until further order of the court. That provision is appropriate where the attorney has demonstrated a disregard for disciplinary proceedings and is unwilling or unable to meet professional standards of conduct. See In re Houdek, 113 Ill. 2d 323, 497 N.E.2d 1169 (1986); In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978). In this case Respondent's disturbing pattern of misconduct and his failure to appear at hearing are sufficient reasons for us to conclude that he is unwilling to adhere to his professional obligations. In our opinion, he should be required to demonstrate his reformation and commitment to the profession in a reinstatement proceeding before he is allowed to resume the practice of law.
Accordingly, we recommend that Respondent Ross Lee Haith, II be suspended from the practice of law for a period of six months and until further order of the Court. We further recommend, as a condition to reinstatement, that he be required to complete the ARDC Professionalism Seminar.
Date Entered: March 8, 2011
|John B. Whiton, Chair, with Nam H. Paik and Damascus Harris, Hearing Panel Members.|
1 In addition, pursuant to Commission Rule 233, those allegations not specifically denied by Respondent are deemed admitted unless the answer stated the reason Respondent was not able to make a specific denial.