BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2010PR00006
FILED - February 9, 2010
Jerome Larkin, Administrator of the Illinois Attorney Registration and Disciplinary Commission, by his attorney, Gary S. Rapaport, pursuant to Supreme Court Rule 753(b), complains of Respondent, James P. Ginzkey, who was licensed to practice law in the State of Illinois on November 5, 1979, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:
(Acts of direct criminal contempt of court)
1. In March, 2005, Dr. Frank Koe, Jr., a dentist, performed a tooth extraction procedure upon Leon Thomas. Subsequently, Thomas became ill and had to be hospitalized. In April, 2005, Thomas made a complaint to the Illinois Department of Financial and Professional Regulation ("IDFPR") against Dr. Koe.
2. As a result of Thomas's complaint, IDFPR conducted an investigation into the allegations. In April, 2005, Helen Spetly, an investigator for IDFPR, made an unannounced visit to Dr. Koe's office and asked to see his sterilization equipment. Dr. Koe refused and asked the investigator to leave his office.
3. On August 8, 2005, Respondent agreed to represent Thomas in a malpractice action against Dr. Koe. The agreement was placed in writing and provided that Respondent's fee would be contingent upon recovery and would vary between one-third and one-fifth of the amount recovered, pursuant to 735 ILCS 5/2-1114.
4. On October 19, 2005, Respondent filed a lawsuit alleging dental malpractice against Dr. Koe on Thomas's behalf. The matter was docketed as Leon Thomas, Plaintiff, v. Frank Koe, Jr., Defendant, No. 05 L 163, in the Circuit Court for McLean County, Illinois.
5. On July 25, 2008, near the conclusion of discovery and pretrial proceedings in the matter, the Hon. Scott D. Drazewski scheduled a jury trial in Thomas v. Koe for September 15, 2008.
6. On July 30, 2008, Dr. Koe filed a motion in limine to bar Thomas from "presenting any reference to" the IDFPR investigation. On August 1, 2008, Judge Drazewski granted the motion.
7. On September 15, 2008, the jury trial began. On September 17, 2008, Dr. Koe testified and Respondent questioned him. In the course of the questioning, Respondent asked Dr. Koe about his dental license and IDFPR's authority to inspect dental offices. Dr. Koe's attorney, Peter W. Brandt, objected to the questions, and Judge Drazewski convened a hearing outside the presence of the jury to consider the matter.
8. Outside the jury's presence, Judge Drazewski sustained the objection. Respondent offered to "confine the line of inquiry" to the facts of the attempted inspection without making any reference to the Illinois Department of Financial and Professional Regulation. Brandt objected. Judge Drazewski sustained the objection, stating it "has previously ruled on this line of inquiry and/or for that matter any reference to the IDPR (sic) investigation."
9. Judge Drazewski allowed Respondent to make an offer of proof of the prohibited testimony. In the offer of proof, Dr. Koe testified that an IDFPR investigator made an unannounced visit to his office and requested to see his sterilization system, he refused to allow the inspection, and he asked the investigator to leave. Dr. Koe also authenticated a letter that he wrote and sent to IDFPR in which he described the incident (and in which he complained about the investigator's conduct). Respondent offered the letter into evidence. Judge Drazewski ruled that the letter would not be admitted.
10. By making the offer of proof, Respondent completed a record for Thomas to obtain review of Judge Drazewski's rulings by way of post-trial motion and appeal. After completion of the offer of proof, no further questioning of Dr. Koe was necessary to preserve the issue of the court's alleged errors.
11. Before reconvening the jury, Judge Drazewski cautioned Respondent as follows:
THE COURT: All right. Are we crystal clear with respect to no reference in any way shape or form to the Illinois Department of Professional Regulation (sic) in any way shape or form? Mr. Ginzkey?
MR. GINZKEY: [No response].
THE COURT: I want to make sure, because no sanctions have been requested nor is the court considering same at this time. But to the extent that there would be a violation of the order in limine the court would consider the next step if appropriate. So I'm making sure at this time Mr. Ginzkey that you're aware of what the court's ruling is.
MR. GINZKEY: My hearing is fine, Your Honor.
THE COURT: All right, thank you counsel.
12. Judge Drazewski reconvened the jury, and Respondent resumed his questioning of Dr. Koe. Respondent's questions included the following:
Q: Doctor, I'm going to ask you another yes or no question. Do you think you can answer it yes or no?
A: I can answer yes or no but I don't know whether I can give you a yes or no answer if you don't ask me the question and I don't understand it.
Q: Doctor, it's true, is it not, that an inspector asked to see your sterilization process and you refused to let her do that the month after this occurrence?
MR. BRANDT: If the court please?
A: I don't—
THE COURT: Don't answer the question. The objection is sustained and we'll take up this matter outside the jury's presence after they have left for the day. Please disregard the question. That is not only to the witness but to the jury.
Q: Doctor, didn't you write a letter and sign it saying exactly that?
MR. BRANDT: Court please—
13. Outside the jury's presence, Judge Drazewski announced that it found Respondent to be in direct contempt of court and would impose a fine in the amount of $500.00.
14. Respondent's conduct, as set forth in paragraph 12, above, did not advance or serve his client's interests.
15. On September 17, 2008, after the trial resumed, the jury returned a verdict in favor of Dr. Koe.
16. On September 19, 2008, Judge Drazewski entered a written order adjudicating Respondent in direct criminal contempt of court and imposing a fine of $500.00 to be paid on or before September 22, 2008. The order stated that Respondent's conduct, as set forth in paragraph 12, above, "impeded and interrupted the proceedings, lessened the dignity of the court, and tended to bring the administration of justice into disrepute."
17. On September 19, 2008, Respondent filed a notice of appeal from the judgment against him for contempt of court. The matter was docketed in the Appellate Court for the 4th Judicial District as appeal no. 4-08-0705.
18. On November 14, 2008, following the denial of a post-trial motion, Respondent filed a notice of appeal on behalf of Thomas. The matter was docketed in the Appellate Court for the 4th Judicial District as appeal no. 4-08-0884. Subsequently, the appellate court consolidated the two appeals.
19. On September 21, 2009, the appellate court issued an opinion in which it affirmed the judgment of contempt of court against Respondent, but reversed and remanded the verdict against Thomas. Thomas v. Koe, ___ Ill.App.3d ___, no. 4-08-0705 and no. 4-08-0884 cons. (4th Dist., 2009). In the opinion, the court stated:
The record reveals that Ginzkey's actions in this case were not made in good faith. Instead, he was unhappy with the trial court's ruling regarding the admissibility of the IDFPR information and simply chose to disregard that ruling. Despite numerous admonitions from the court to desist, he continued to try to get information before the jury that the court had barred. The best that can be said of Ginzkey's position is that he really believed the court's ruling was erroneous. However, as we explain, Ginzkey's strong belief is utterly irrelevant.
Whether the trial court's underlying decision—which precipitated the contemnor's action—is "wrong" is of no consequence in contempt proceedings and, therefore, does not justify disobedient behavior. We emphasize that even when a court's decision is erroneous, the court is entitled to—and, indeed, our system of justice requires—dignity and obedience. Trial courts will occasionally make erroneous rulings, particularly in cases that involve complicated questions regarding the admissibility of evidence, like this case. However, our system of justice deals with such errors by providing for appeals. (That Ginzkey fully understands the appellate process is perhaps best shown by the very appeals he has brought to us in these consolidated cases.)
Thomas v. Koe, supra, slip opinion at 18-19 (emphasis in original).
20. On October 26, 2009, Respondent filed a petition for leave to appeal the matter of his contempt adjudication to the Illinois Supreme Court. The Supreme Court docketed the matter as Ginzkey v. Koe, no. 109350. On January 27, 2010, the Supreme Court denied the petition.
21. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
in the representation of a client, taking an action on behalf of the client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another, in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct (1990);
in trial, alluding to a matter that will not be supported by admissible evidence, in violation of Rule 3.3(a)(10) of the Illinois Rules of Professional Conduct (1990);
in representing a client, using means that have no substantial purpose other than to embarrass, delay, or burden a third person, in violation of Rule 4.4 of the Illinois Rules of Professional Conduct (1990);
conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990); and
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.
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.
|Gary S. Rapaport
Illinois Attorney Registration and
One North Old Capitol Plaza, Suite 333
Springfield, IL 62701
Telephone: (217) 522-6838