BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
No. 2067110 .
Commission No. 2010PR00090
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorneys, Scott A. Kozlov and James A. Doppke, Jr., pursuant to Supreme Court Rule 753(b), complains of Respondent Rosaire Marie Nottage, who was licensed to practice law in Illinois on May 7, 1976, 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:
(Revealing confidences of client Reva Bauch)
1. On April 13, 2006, Respondent and Reva Bauch (hereinafter "Bauch"), an Illinois attorney employed as an administrative law judge, agreed that Respondent's firm, Nottage and Ward, would represent Bauch as petitioner in a then-pending dissolution of marriage case in the Circuit Court of Cook County. The case was entitled Bauch v. Bauch, and had been assigned docket number 04 D 6701.
2. Between April 2006 and February 2007, the parties in case number 04 D 6701 engaged in discovery, and, on February 14, 2007, the court scheduled the case for trial on May 29, 2007.
3. On May 29, 2007, the parties appeared before the Hon. Helaine L. Berger in case number 04 D 6701, and engaged in a settlement conference. A few minutes after Judge Berger concluded the settlement conference, Respondent and Bauch had a disagreement over whether, and on which terms, to settle the case.
4. A few hours after the May 29, 2007 court appearance, Bauch decided to agree to the terms of a proposed settlement. At that time, the court conducted a prove-up hearing to make a record of the parties' oral settlement agreement, and ordered that the parties later file a written document memorializing the terms of their agreement. Thereafter, the parties disagreed regarding several terms of the oral settlement agreement, and neither party submitted a written settlement agreement to the court.
5. Between May 29, 2007, and July 26, 2007, Respondent and Bauch communicated concerning the parties' disagreements regarding the terms of the oral settlement agreement. During those communications, Respondent and Bauch disagreed regarding the manner in which a written settlement agreement would be submitted to the court. Thereafter, on July 26, 2007, Respondent was granted leave to withdraw as Bauch's counsel in case number 04 D 6701.
6. On November 2, 2007, Bauch, through her attorney Barry H. Greenburg, caused a motion to be filed in case number 04 D 6701 in which she sought to set aside the oral settlement agreement that had been entered on May 29, 2007, and to set the case for trial. As part of the motion, Bauch alleged that Respondent had not provided her with sufficient information, over the course of their attorney-client relationship, to enable Bauch to give informed consent to the oral agreement; that the agreement was unconscionable; and that the agreement had been entered into as a result of "attorney coercion" by Respondent. Shortly after November 2, 2007, Respondent received a copy of Bauch's motion from Greenburg.
7. Between November 2, 2007, and November 19, 2007, Ron A. Cohen, attorney for Bauch's husband Paul Bauch, contacted Respondent by telephone and told her that he intended to call her as a witness at a hearing regarding Bauch's motion to set aside the oral settlement agreement. Respondent told Cohen that she was in possession of information that tended to refute Bauch's allegations that the May 29, 2007 oral settlement agreement had been the result of "attorney coercion."
8. Between November 19, 2007, and December 7, 2007, Respondent, or someone acting at her direction, accessed her firm's records in order to obtain copies of e-mail correspondence exchanged between Bauch and the firm between April 13, 2006, and July 26, 2007.
9. Between November 19, 2007, and December 7, 2007, Respondent directed her associate, Leah Trachtman, to cause two letters to be hand-delivered to Cohen, enclosing printed copies of the e-mail correspondence referred to in paragraph eight, above. In total, Respondent caused at least 519 pages of email correspondence, consisting of at least 32 different email messages, to be attached to the two letters.
10. As Respondent knew, the correspondence referred to in paragraphs eight and nine, above, included some information pertaining to Respondent's representation of Bauch that was confidential or secret. For example, the correspondence contained, inter alia:
An e-mail message sent by Bauch to Respondent and Trachtman on April 18, 2007, in which Bauch provided information regarding her then-current assets;
An e-mail message sent by Bauch to Respondent on April 22, 2007, in which Bauch urged Respondent to pursue additional discovery in the case, including by seeking additional information regarding Paul Bauch's income;
An e-mail message sent by Bauch to Trachtman on May 7, 2007, in which Bauch inquired about any strategic benefits to be derived from bifurcating the trial in her divorce case;
An e-mail message sent by Bauch to Respondent and Trachtman on May 12, 2007, in which Bauch set forth a proposal for settling marital debt issues;
An e-mail message sent by Bauch to Respondent on May 15, 2007, in which Bauch set forth her positions regarding a proposed division of marital assets, child support, maintenance, and college expenses for the Bauchs' child;
An e-mail message sent by Bauch to Respondent on May 17, 2007, in which Bauch discussed issues relating to maintenance, child support, marital property division, debt allocation, and tuition; and
An e-mail message and its attachment sent by Bauch to Trachtman on May 20, 2007, consisting of a document authored by Bauch and setting forth her versions of various events during her marriage; her thoughts, impressions, and mental states regarding those events; and her concerns regarding her future income and employment.
11. Bauch expected Respondent to use the information contained in the correspondence described in paragraphs eight through 10, above, solely for Bauch's benefit.
12. At no time between November 19, 2007, and December 7, 2007, or at any other time, did Respondent request or receive Bauch's consent to send the correspondence referred to in paragraphs eight through 10, above, to Cohen.
13. At no time between November 19, 2007, and December 7, 2007, or at any other time, did Respondent receive a subpoena directing her to produce the correspondence referred to in paragraphs eight through 10, above, or request that Cohen provide her with such a subpoena; seek the entry of a protective order in case number 04 D 6701 concerning the correspondence; redact any of the information contained in the correspondence; or otherwise take any steps to safeguard or protect any of the information contained in the correspondence.
14. After December 7, 2007, Cohen provided copies of the e-mail correspondence referred to in paragraphs eight through 10, above, to Paul Bauch, who is also an Illinois attorney. Paul Bauch directed his paralegal to review the correspondence and prepare a summary of the information contained in it.
15. On September 8, 2008, a hearing was held in case number 04 D 6701 before Judge Berger concerning Bauch's petition to vacate the oral settlement agreement. At that hearing, Cohen produced to Greenberg a binder containing copies of the correspondence referred to in paragraphs eight through 10.
16. On October 17, 2008, Greenburg filed, on Bauch's behalf, a motion to bar Paul Bauch from introducing into evidence any of the correspondence referred to in paragraphs eight through 10, above.
17. On October 23, 2008, a further hearing was held in case number 04 D 6701 before Judge Berger concerning Bauch's petition to vacate the oral settlement agreement. At the hearing, the parties argued the motion to bar filed on Bauch's behalf.
18. On or shortly after October 23, 2008, Judge Berger barred Paul Bauch from offering the correspondence referred to in paragraphs eight through 10, above, into evidence.
19. By reason of the conduct described above, Respondent has engaged in the following misconduct:
revealed a client confidence or secret without consent, in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct (1990); and
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
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.
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.
|Scott A. Kozlov
James A. Doppke, Jr.
Counsel for the Administrator
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600