BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 09 SH 5
FILED - February 26, 2009
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, pursuant to Supreme Court Rule 753(b), complains of Respondent, Maurice Joseph Barry, Jr., who was licensed to practice law in the State of Illinois on May 9, 1985, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or which brings the courts or the legal profession into disrepute:
(False and Frivolous Pleadings, and Misrepresentations to the Court - Terrance Gavin)
1. On September 5, 2007, Terrance Gavin ("Terrance") was injured in an incident in which he was struck by a double tractor-trailer owned by the United Parcel Service ("UPS"). The incident occurred around Bloomington, Illinois. Terrance was immediately transported to a hospital for surgery.
2. At the time of the incident described in paragraph one, above, Terrance was separated from his wife Donna Gavin ("Donna"). Donna and Terrance were married on August 12, 2005, and separated in September 2006. After the date of their separation, Terrance had not met with Donna, and had only spoken to her on approximately two occasions between the date of separation and the incident on September 5, 2007. Donna and Terrance had no children together, and Donna was not pregnant when she and Terrance separated.
3. On September 6, 2007, Donna went to see Respondent at his office and told Respondent that she was separated from Terrance, that Terrance had been severely injured, and that Terrance refused to talk to her. Respondent agreed to represent Donna in a claim against UPS.
4. On September 7, 2007, Donna went to the hospital in Urbana where Terrance had been taken after the accident. Terrance's mother told Donna to leave. Donna left without seeing Terrance, or without obtaining information regarding Terrance's medical condition.
5. At no time did Respondent meet with Terrance, or discuss with Terrance whether he wanted Respondent to represent him in matters relating to the September 5, 2007 incident described in paragraph one, above.
6. Respondent knew that Terrance had not requested to see or speak to Respondent.
7. Respondent knew that Terrance had not requested that Respondent represent him in matters relating to the September 5, 2007 incident described in paragraph one, above.
8. At no time did Donna have a power of attorney authorizing her to take any legal action on Terrance's behalf.
9. At no time did Respondent have a reasonable basis for believing that Terrance was unable to make decisions regarding retaining a lawyer.
10. On September 12, 2007, Respondent filed a complaint against UPS on behalf of Donna, and purportedly on behalf of Terrance. The case was captioned "Terrance L. Gavin and Donna L. Gavin, Plaintiffs, vs. United Parcel Service, Inc., Defendant," McLean County case number 07 L 144. The introductory paragraph stated as follows:
"Plaintiffs TERRANCE L. GAVIN and DONNA L. GAVIN, by their attorney, Maurice J. Barry, Jr., complaining of the Defendant, UNITED PARCEL SERVICE, INC., hereby state:"
11. Respondent's claim that he represented Terrance L. Gavin was false, in that Terrance had not agreed that Respondent could represent him in any matter.
12. Respondent knew or should have known that his claim was false.
13. On September 12, 2007, Terrance's sister, at Terrance's request, contacted Curt Rodin ("Rodin") of the law firm of Anesi, Ozmon, Rodin, Novak and Kohen, Ltd. ("Anesi firm") to discuss whether Rodin would represent Terrance in a personal injury suit regarding the incident described in paragraph one, above. On September 14, 2007, Terrance met with Rodin and they agreed in writing that Rodin would represent Terrance in the personal injury suit.
14. On or about September 18, 2007, Respondent received a letter by fax from Rodin. Rodin stated that he had been informed by UPS's insurance carrier that Respondent had claimed to represent Terrance. Rodin also told Respondent that he represented Terrance in his claim against UPS, and requested that Respondent stop claiming that he represented Terrance.
15. On September 19, 2007, Rodin filed, on Terrance's behalf, a complaint in Cook County against UPS regarding the incident described in paragraph one, above. The case was captioned "Terrance L. Gavin, plaintiff, v. United Parcel Service, Inc., a Corporation, et al.," case no. 07 L 9856.
16. On September 20, 2007, Respondent sent Rodin a letter acknowledging receipt of Rodin's letter, and enclosing a copy of the pleadings in McLean County case no. 07 L 144.
17. On September 24, 2007, Rodin filed a document entitled "Emergency Motion To Declare A Nullity And Dismiss The Complaint And Motion For Temporary Restraining Order" in McLean County case no. 07 L 144, arguing Respondent did not represent Terrance and had no authority to file a lawsuit on Terrance's behalf.
18. On September 24, 2007, Respondent filed a document entitled "Objection To the Emergency Motion To Dismiss" ("Objection") described in paragraph 17, above. In the Objection, Respondent represented that since his case was filed first, the case filed by Rodin in Cook County was a nullity and should be dismissed. Respondent also argued that venue was not proper in Cook County.
19. On September 25, 2007, the court conducted a hearing in McLean County case no. 07 L 144. Respondent stated that he was appearing for the "plaintiffs."
20. Respondent's claim that he was appearing for the "plaintiffs" was false.
21. Respondent's claim that he was appearing for the "plaintiffs" was false, as he had no authority to represent Terrance, who was actually represented by Rodin.
22. Respondent knew or should have known that his statement that he represented the "plaintiffs" was false.
23. At the conclusion of the September 25, 2007 hearing, the matter was continued for further hearing.
24. On September 28, 2007, Respondent filed, on behalf of Donna as petitioner, a "Petition For Adjudication Of Disability And For The Appointment Of A Guardian," ("Guardianship Petition"), seeking to have Terrance deemed incompetent, and seeking to have Donna appointed as the guardian of Terrance's person and estate. The case was docketed as In re Terrance L. Gavin, McLean County case no. 07 P 215.
25. In the Guardianship Petition, Respondent represented that Terrance had been involved in an accident, and that "The Law Firm of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., filed a lawsuit regarding the accident in Cook County, Illinois, without showing proof of their authority, after being asked for same on more than one occasion."
26. Respondent further represented in the Guardianship Petition that "Terrance L. Gavin, as a result of the accident, is incapable of taking care of himself."
27. At the time Respondent represented that Terrance was "incapable of taking care of himself," Respondent had reviewed no medical records or spoken to any of Terrance's medical providers about Terrance's condition.
28. Respondent's representation in his pleading that Terrance was "incapable of taking care of himself" was false.
29. Respondent's representation in his pleading that Terrance was "incapable of taking care of himself" was false in that Terrance was able to take care of himself.
30. Respondent knew or should have known his statement that Terrance was "incapable of taking care of himself" was false.
31. Although Terrance required medical care during his period of recuperation following his accident, Respondent's request that a guardianship be imposed over Terrance was frivolous and unwarranted, as an inability to physically take care of oneself following medical care does not constitute legal grounds for imposing guardianship over a person.
32. On October 1, 2007, the parties appeared before the court in case no. 07 L 144. The Court granted Rodin's motion to dismiss, and the case was dismissed.
33. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
making a statement of material fact or law to a tribunal which the lawyer knows or reasonably should know is false (by claiming to represent Terrance, and by claiming Terrance was unable to take care of himself), in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct;
advancing a claim that the lawyer knows is 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) of the Illinois Rules of Professional Conduct;
bringing or defending a proceeding, or asserting or controverting an issue therein, when there is no basis for doing so that is not frivolous, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct;
conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
engaging 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.
WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
Attorney Registration and
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