BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

DAVID ALAN NOVOSELSKY,

Attorney-Respondent, 

No. 2069881.

 

Commission No. 2011PR00043

FILED - September 28, 2012

THIRD AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, pursuant to Supreme Court Rule 753, complains of Respondent, David Novoselsky, who was licensed to practice law in Illinois on October 29, 1973, 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:

COUNT I
(False statements, lack of diligence, and failure to return
unearned fees - Peter and Miriam Shabo
)

1. On August 28, 2003, Claudia Shabo-Ludwig ("Claudia") filed for a dissolution of her marriage to Steven Ludwig. The case was docketed as In re the Marriage of Claudia Ludwig and Steven Ludwig, Cook County case no. 03 D 009200. Claudia sought sole custody of the parties' only minor child.

2. In 2005, Ralla Klepak ("Klepak") was appointed as the child's representative in the case.

3. On March 21, 2006, Klepak filed an emergency petition for injunctive relief against Claudia, and also against Claudia's parents, Peter and Miriam Shabo ("Peter" and "Miriam"), whom Klepak sought to make third-party defendants in the case. In her petition, Klepak alleged that Miriam had threatened a child custody evaluator, Dr. Star. Klepak also alleged that Miriam had written defamatory letters about Klepak to the ARDC and to the dean of Chicago-Kent Law School, where Klepak was an adjunct professor. Klepak also asserted on information and belief that Miriam had filed an ARDC complaint against other counsel in the Ludwig case.

4. On March 22, 2006, the court entered an order adding Peter and Miriam as additional parties, and issued a temporary restraining order ("TRO") restraining Miriam from harassing, intimidating, threatening or obstructing the activities of Dr. Star or Klepak. The court entered a further injunctive order against Peter on April 10, 2006, enjoining both Peter and Miriam from harassing Dr. Star or Klepak.

5. On June 11, 2007, Claudia and Miriam met with Respondent to discuss his possible representation of Claudia in the custody matter, including work on a possible appeal of any final custody order. Respondent told Claudia that she had a cause of action against Klepak for abuse of process. Respondent and Claudia agreed that Respondent would represent her in a possible appeal of any custody order, as well as a possible lawsuit against Klepak. Respondent and Claudia agreed that Respondent would bill her at an hourly rate of $300, and that Claudia would pay Respondent an advance payment retainer of $15,000.

6. On June 11, 2007, Miriam agreed to lend Claudia the advance payment and sent Respondent a check on Claudia's behalf in the amount of $15,000.

7. In June 2007, shortly after meeting with Claudia, Respondent called Miriam to discuss a possible lawsuit to be brought by Miriam and Peter against Klepak based on Klepak's filings against them. Respondent and Miriam met, and Respondent told Miriam that he had filed two other lawsuits against Klepak, including one Respondent filed on behalf of an associate in his firm, James Ayres ("Ayres").

8. Respondent's statement that he had sued Klepak on behalf of Ayres was false, as Respondent had filed no such litigation. Respondent knew his statement was false. Respondent made the statement to induce Miriam to hire him.

9. Respondent asked Miriam for a payment of $15,000, and stated the $15,000 would be applied to costs, and told her that her case against Klepak would be handled on a contingent fee basis. Miriam and Peter agreed to this arrangement, and on June 18, 2007 gave Respondent a second check in the amount of $15,000.

10. Respondent did not request that Miriam and Peter sign a contingent fee agreement, and no such agreement was signed.

11. In June 2007, Miriam gave Respondent documents that he requested for the preparation of the lawsuit against Klepak, including orders entered in the case, and transcripts of the hearings on the temporary restraining order.

12. As of June 2007, Respondent had not filed any litigation on Miriam and Peter's behalf against Klepak.

13. In June 2007, Miriam called Respondent and asked for a copy of the lawsuit that she believed he had filed for her against Klepak.

14. Respondent told Miriam that he would send her a copy of the lawsuit.

15. Respondent's statement to Miriam that he would send her a copy of the lawsuit was false and/or misleading, as he had not filed a lawsuit against Klepak.

16. On July 5, 2007, Miriam sent Respondent an email telling him she had transcripts of the March and June 2007 hearings, and asked Respondent if he needed the transcripts.

17. On July 5, 2007, Respondent sent Miriam a return email stating: "Yes. I was just getting ready to file, but these will make sure everything I am saying is accurate. Dave."

18. As of August 2007, suit had not been filed. In August 2007, Respondent told Miriam that he had drafted and filed a lawsuit on her behalf against Klepak.

19. On several occasions in 2007, Respondent told Miriam the lawsuit was taken care of, or done, and that it had been filed in the law division.

20. Respondent's statements in paragraphs 18 and 19 were false, and Respondent knew his statements were false, as no suit had actually been filed.

21. On December 26, 2007, Miriam sent Respondent an email stating: "You mentioned that you took care of our law suit against Ralla Klepak. Could you please send us copies for our records." Respondent received Miriam's message.

22. Respondent did not respond to Miriam's December 26, 2007 email.

23. On several occasions in the first six months of 2008, Miriam asked Respondent about the lawsuit against Klepak.

24. During 2008, Respondent told her on more than one occasion the lawsuit was "done" or "taken care of" or "completed."

25. In 2008, the statute of limitations expired on any abuse of process claim Miriam and Peter had against Klepak for the actions she took against them in 2006. 735 ILCS 5/13-202.

26. On August 26, 2008, Miriam sent Respondent an email stating: "Last time I heard from you via email you said that the case against Ralla Klepak was done. Would it be possible please to get a copy of your brief. We would also like to know the status of it." Respondent received Miriam's message.

27. Respondent did not respond to Miriam's August 26, 2008 email about the lawsuit.

28. On December 29, 2008, Respondent and Miriam spoke over the telephone. Miriam again asked for a copy of the pleading she believed Respondent had filed on her behalf, and Respondent said that he would email it to her. Respondent also told Miriam that Claudia's trial attorney, Jerome Zurla ("Zurla"), had told Respondent that he did not want Respondent to file a lawsuit against Klepak on Miriam's behalf.

29. Respondent's statement that Zurla told him not to file the lawsuit on Miriam and Peter's behalf was false, because Zurla had not made such a statement. Respondent knew his statement was false.

30. On January 2, 2009, Miriam sent Respondent an email reminding Respondent that he had told her he would mail her the brief, and stating she had not yet received it. Miriam also stated: "I was not aware of Zurla telling you not to file the law suit against Ralla. I sent you several emails asking that it be filed as soon as possible and understood from you that it was done. If you will recall before you asked us if we wanted to sue Ralla Klepak, we also originally discussed on Claudia's side that a separate lawsuit should be filed on behalf of Claudia and her son against Ralla Kelpak. Zurla may have referred to that lawsuit, as Claudia was his client."

31. On January 3, 2009, Respondent sent Miriam an email stating: "I am with my family this weekend and cannot go in and access the file materials. Let me do this the simple way: I will pledge to assist you with regard to Ralla and anyone else who may be properly subject to suit. I will do so without causing you or your husband any further financial burdens."

32. On January 30, 2009, Miriam and Peter met with Respondent at his office.

33. During the January 30, 2009 meeting, Respondent said to Miriam and Peter that he was getting ready to file a lawsuit on their behalf against Klepak. Respondent knew or should have known that the statute of limitations had expired on Miriam's claim against Klepak.

34. Respondent asked Miriam to give him clean, digitized copies of the documents, including orders in Claudia's case she had previously given him, because Respondent had written on the documents in his possession.

35. On February 2, 2009, Miriam sent Respondent email copies of the requested documents.

36. On February 8, 2009, Respondent sent Miriam an email stating: "You were going to send me a clean copy of the order I needed to file the complaint last weekend. I did not hear from you. Please send me THIS LAST PIECE OF EVIDENCE I need to file this lawsuit." (emphasis in original)

37. On or about February 9, 2009, Respondent spoke to Miriam and confirmed he had received copies of the documents he had requested from her.

38. On February 13, 2009, Miriam emailed Respondent and instructed him to email her a copy of the suit she expected him to file in her behalf, or she would come and pick it up. Respondent received her message.

39. Respondent did not respond to the February 13, 2009 email.

40. On February 18, 2009, Miriam sent Respondent a letter by registered mail, requesting a refund of the $15,000 she and Peter had paid Respondent to file the lawsuit against Klepak. Respondent received the letter.

41. On February 23, 2009, Respondent wrote to Miriam and Peter and stated: "as to the expenses, you told me a year ago that since the fees we would otherwise charged [sic] Claudia far exceeded the initial retainer and that you were worried that any additional fees you would pay would be ‘backtracked' to you and cause yet another demand for ‘disgorgement,' you instructed me to apply those to the fees which was otherwise due and owing to your daughter's outstanding bill."

42. Respondent's statement that Miriam and Peter had instructed Respondent to apply the $15,000 they had paid him for expenses or fees for their lawsuit against Klepak to Claudia's bill was false. Respondent knew his statement was false because Miriam had not instructed Respondent to apply the fees she paid him to Claudia's case, and Respondent knew the statement was false.

43. At no time did Respondent refund any of the expenses or fees paid to him by Miriam and Peter.

44. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (1990);

  2. failure to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct (1990);

  3. failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (1990);

  4. failure to put a contingency fee agreement in writing, in violation of Rule 1.5(c) of the Illinois Rules of Professional Conduct (1990);

  5. failure to promptly refund any part of a fee paid in advance that has not been earned, in violation of Rule 1.16(e) of the Illinois Rules of Professional Conduct (1990);

  6. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990); and

  7. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

COUNT II
(False statements and failure to return
unearned fees regarding an appeal - Milijana Vlastelica
)

45. Milijana Vlastelica ("Vlastelica") and Manheir Chehaiber ("Chehaiber") were married in March 1997. They separated in 1998, and Chehaiber filed for a dissolution of their marriage in 2000. The case was captioned as In re the Marriage of Manheir Chehaiber v. Milijana Vlastelica, DuPage County case no. 00 D 1256.

46. On August 3, 2000, Vlastelica filed a petition for temporary custody of the couple's only child, a son. Chehaiber filed a counter-petition for custody.

47. On March 14, 2003, the court awarded sole custody of the child to Vlastelica. The parties continued to dispute matters relating to visitation, and, in September 2003, the court appointed a child representative, Jeffrey Brend ("Brend"), to represent the minor child. On May 23, 2005, Manheir filed a petition for modification of custody, seeking full custody of the parties' minor child.

48. On June 2, 2005, Vlastelica filed a motion for change of venue for cause, alleging that the new judge assigned to the case, Judge Equi, was prejudiced against her. On July 26, 2005, the court denied the motion for change of venue for cause.

49. On August 24, 2005, Chehaiber filed a motion for sanctions against Vlastelica based on her motion for change of venue for cause. On June 20, 2006, the court conducted a hearing on Chehaiber's motion for sanctions. The court granted the sanctions motion against Vlastelica and her attorney, and gave Chehaiber time to submit a specific fee request.

50. On July 11, 2006, Vlastelica met with Respondent to discuss the custody case, and, specifically, her desire to appeal the sanctions order against her.

51. Respondent agreed to represent Vlastelica in an appeal of the order. Vlastelica and Respondent agreed that Respondent's hourly rate would be $250. Vlastelica signed the engagement letter prepared by Respondent.

52. On July 11, 2006, Vlastelica gave Respondent a check in the amount of $10,000 as an advance toward his fee to handle the appeal.

53. On August 3, 2006, the court entered an order holding, inter alia, that Chehaiber had shown a sufficient change in circumstances regarding the minor child since the custody order had been entered, and denied Vlastelica's motion to strike Chehaiber's petition to modify custody. The August 3, 2006 ruling meant that the issue of custody, which had been decided by the court on March 14, 2003, would be the subject of further proceedings.

54. On September 5, 2006, one of Vlastelica's trial counsel, Gregory Adamski ("Adamski") filed a motion to reconsider the August 3, 2006 order.

55. On October 3, 2006, the court entered monetary sanctions of $9,980 against Vlastelica. (The court previously ordered sanctions, on June 20, 2006; this order set the dollar amount of sanctions.)

56. On November 1, 2006, Respondent filed his appearance as additional counsel for Vlastelica in case no. 00 D 1256.

57. On October 23, 2006, Respondent filed a motion on Vlastelica's behalf to reconsider the order entered June 21, 2006, and the sanctions entered against her on October 3, 2006.

58. On January 16, 2007, the court entered an order denying Vlastelica's request for reconsideration of the sanctions, and also ruled that the issue of sanctions was final and appealable pursuant to Supreme Court Rule 304(a).

59. On December 29, 2006, the court denied the motion filed by Adamski to reconsider the August 3, 2006 order, which allowed Chehaiber to have a hearing on his petition to modify custody.

60. On January 12, 2007, Vlastelica met with Respondent, who asked her for another payment for the appeal of the sanctions order. Vlastelica stated she did not want to pay additional attorneys fees for the appeal, since the sanctions were only $9,980 and she had already paid Respondent $10,000.

61. Respondent stated to Vlastelica that he could also appeal two other issues on her behalf, specifically the court's order of December 29, 2006 allowing Chehaiber to have a second custody hearing, and on an earlier award of child representative fees to Brend in an October 2, 2006 order.

62. On January 17, 2007, Vlastelica mailed Respondent a second check in the amount of $10,000.

63. On January 18, 2007, Vlastelica sent Respondent a letter by facsimile, stating her three objectives in the appeal (reversing the sanctions, overruling the order requiring a second custody trial and vacating the order regarding Brend's fees). Respondent received and reviewed the letter. Respondent did not respond to the letter.

64. On January 25, 2007, Respondent filed a notice of appeal on Vlastelica's behalf in the Second District Appellate Court. The case was docketed as appeal no. 2-07-0117. The only issue Respondent raised in the notice of appeal was the order imposing sanctions, and the monetary sanctions entered against Vlastelica on October 3, 2006, in the amount of $9,980.

65. On September 11, 2008, the Appellate Court entered an order denying Vlastelica's appeal, in part because Respondent had failed to provide the record, including certain transcripts, of the evidentiary hearing on Vlastelica's motion for change of venue for cause.

66. On October 2, 2008, Respondent told Vlastelica that the appeal had been denied, that he was planning to file a petition for leave to appeal with the Illinois Supreme Court, and that she would get a copy of the appellate court order in the mail the next day.

67. On October 3, 2008, Vlastelica and Respondent spoke about the Appellate Court's order. Respondent told Vlastelica that the transcripts had been included with the record on appeal, but that the Appellate Court did not bother to read them.

68. Respondent's statement that the transcripts were included in the record on appeal, and that the appellate court did not bother to read them was false, and Respondent knew it was false, because Respondent knew what parts of the record were before the Appellate Court.

69. On October 3, 2008, Respondent filed a motion to withdraw from case no. 2-07-117, stating that he disagreed with Vlastelica's decision to seek rehearing in the Appellate Court.

70. On October 27, 2008, the Appellate Court entered an order denying both Vlastilca's motion for an extension of time, which she had filed pro se on October 3, 2008, and Respondent's motion to withdraw, for lack of appellate court jurisdiction.

71. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. failure to abide by a client's decisions concerning the objectives of representation, in violation of 1.2(a)(1990) of the Rules of Professional Conduct;

  2. failure to keep a client reasonably informed about the status of the matter, in violation of Rule 1.4(a) of the Rules of Professional Conduct (1990);

  3. failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions, in violation to Rule 1.4(b) of the Rules of Professional Conduct (1990);

  4. failure to promptly refund any part of a fee paid in advance that has not been earned, in violation of Rule 1.16(e) of the Illinois Rules of Professional Conduct (1990);

  5. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990); and

  6. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

COUNT III
(False statement regarding litigation - Vlastelica)

72. The Administrator re-alleges paragraphs 45 through 70, of Count II, above.

73. In June 22, 2007, Vlastelica met with Respondent to discuss a separate lawsuit against Jeffrey Brend, ("Brend"), the child representative in the custody and visitation case.

74. Respondent told Vlastelica he would file a lawsuit against Brend on Vlastelica's behalf, and they would seek punitive damages against Brend. Respondent said he would need $15,000 from Vlastelica to begin the process, and told Vlastelica he would apply the $15,000 to costs. Respondent also told Vlastelica that he would handle the matter against Brend on a contingency fee basis. Respondent explained to Vlastelica that if she received a financial recovery, the $15,000 would be deducted from Respondent's fee, and the net cost to her would be zero for the lawsuit.

75. Respondent told Vlastelica that he could file the suit against Brend in Cook County, where Brend had an office, and that he had already checked to see if Brend had malpractice insurance.

76. Vlastelica told Respondent she was not sure if she wanted to file the lawsuit and told him she would think about it.

77. Respondent told Vlastelica that he had already filed a lawsuit against a child representative in another case.

78. Within a week of the June 22, 2007 meeting, Respondent called Vlastelica on two occasions to see if she wanted him to file the lawsuit against Brend.

79. During one of the calls, Vlastelica asked him how soon the lawsuit would be filed, if she decided to pursue it, and he told her it would be filed by "this Friday."

80. On July 2, 2007, based in part on Respondent's assurance that he would file the lawsuit by Friday [July 6, 2007] and that he had already filed a similar lawsuit for another client, Vlastelica decided to proceed with the lawsuit against Brend, and mailed Respondent a check in the amount of $15,000.

81. Respondent did not offer Vlastelica a written contingency fee agreement, and no such agreement was signed.

82. On July 3, 2007, Vlastelica sent Respondent an email, telling him she had mailed the check and inquiring if there would be two separate lawsuits, one on her behalf, and one of behalf of her son. Respondent received the message.

83. Respondent did not respond to Vlastelica's July 3, 2007 email.

84. As of July 10, 2007, Respondent had not filed suit on Vlastelica's behalf. On or about July 10, 2007, Vlastelica called Respondent about the lawsuit that she believed he had filed on her behalf against Brend.

85. Respondent told Vlastelica the lawsuit had been filed, and he was looking to serve the child representative.

86. Respondent's statement that the lawsuit against Brend had been filed and he was looking to serve the child representative, was false, and Respondent knew it, because no lawsuit had been filed and there were no complaint or summons to serve on the child representative.

87. As of 2008, Respondent still had not filed the lawsuit for Vlastelica against Brend.

88. On at several occasions in 2008, Respondent told Vlastelica that the lawsuit was "done" and that he would mail her a copy of the complaint. Respondent's statement was false, and he knew it was false because he had not filed a lawsuit on her behalf against Brend.

89. In early January 2008, Vlastelica and Dr. Spomenka Luedi went to Respondent's office. Vlastelica asked Respondent for a copy of the lawsuit Respondent had filed, and asked if he could amend the lawsuit to include new allegations regarding Brend.

90. Respondent stated to Vlastelica that he was working on the amended complaint, and that he would get her a copy of the filed lawsuit.

91. Respondent's statements that he was working on an amended complaint, and that he would get a copy of the filed lawsuit were false and/or misleading, and Respondent knew it as he could not be working on an "amended" complaint since no complaint had been filed, and he could not get a copy of the filed lawsuit because there was no such lawsuit.

92. Respondent left Vlastelica in his office, and returned after a few moments saying the lawsuit had been "misplaced" but that he would send her a copy of the amended lawsuit.

93. On January 9, 2008, after meeting with Respondent, Vlasteclica sent him an email stating she had not received a copy of the lawsuit, and reminding him that he said he would fax it the previous week.

94. On March 20, 2008, March 26, 2008, March 31, 2008, and in April 2008, Vlastelica asked Respondent for a bill in the matter regarding the appeal, and also stated that she wanted him to return the $15,000 she had paid Respondent if he had not filed the lawsuit, or thought it had no chance of winning. Respondent received these requests.

95. As of June 2008, Respondent hadn't refunded the money, provided Vlastelica with a copy of a lawsuit, or responded to requests for information.

96. In June 2008, Vlastelica was leaving for a trip to Croatia. She spoke to Respondent on the phone and he said he had filed the lawsuit, and it had just been mailed to her. Respondent's statement was false, and he knew it was false, as he had not filed a lawsuit on her behalf against Brend.

97. In July 2008, when Vlastelica returned from Croatia, she called Respondent's office on numerous occasions and was told each time he was in court.

98. In July or August 2008, one of Respondent's employees told Vlastelica on the telephone that no lawsuit had been filed.

99. On August 8, 2008, Vlastelica sent Respondent an email and fax stating she was worried he would not file the case before the statute of limitations ran out. Respondent received Vlastlica's message.

100. Respondent did not respond to the email or letter.

101. Vlastelica sent follow up emails on August 15 and 22, 2008, stating she had not received a copy of the lawsuit. Respondent received Vlastlica's messages.

102. On October 28, 2008, Vlastelica sent Respondent a letter requesting a refund of the $15,000 she had paid him to file a lawsuit against Brend. Respondent received this letter.

103. At no time did Respondent return any of the money given to him for costs or expenses to Vlastelica. The work Respondent did and services provided (if any) do not justify his retention of the entire payment.

104. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (1990);

  2. failure to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct (1990);

  3. failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (1990);

  4. failure to put a contingency fee agreement in writing, in violation of Rule 1.5(c) of the Illinois Rules of Professional Conduct (1990);

  5. failure to promptly refund any part of a fee paid in advance that has not been earned, in violation of Rule 1.16(e) of the Illinois Rules of Professional Conduct (1990);

  6. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990); and

  7. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

COUNT IV
(Presenting false evidence in the Vlastelica investigation)

105. The Administrator re-alleges paragraphs 73 through 103 of Count III above.

106. On or about January 12, 2007, Respondent handed Vlastelica an invoice ("2007 invoice") for the work done on her case. The invoice was a true and accurate statement of the services performed by Respondent or his staff through December 26, 2006.

107. On December 3, 2008, the Administrator opened investigation no. 08 CI 5704 into Respondent's conduct based on a request for investigation submitted by Vlastelica.

108. On February 4, 2009, April 23, 2010, and May 26, 2010, counsel for the Administrator requested copies of Respondent's billing statements or invoices relating to Vlastelica in investigation no. 08 CI 5704. On June 25, 2010, Respondent produced the requested billing statements in the Vlastelica matter to the ARDC ("2010 invoice").

109. In the 2007 invoice, Respondent billed Vlastelica a total of $8,643.50 for the attorney time spent on her case through December 26, 2006.

110. In the 2010 invoice, Respondent claimed that Vlastelica owed $16,937.50 for the identical time period, an increase of almost 100%.

111. Reserved.

112. In the 2007 invoice, Respondent billed Vlastelica at a rate of $58 per hour for work performed by a law clerk on July 17, 2006, July 18, 2006 and August 1, 2006; in the 2010 invoice, Respondent billed Vlastelica at a rate of $250 for his law clerk on those same dates, an increase of approximately 400%.

113. Respondent created the 2010 invoice in order to mislead the ARDC about the value of his services to Vlastelica.

114. Respondent knew that his 2010 invoice sent to the ARDC showing that Vlastelica owed a total of $41,072.50 was false, as, inter alia, Respondent doubled the amount purportedly owed for the time period up to December 26, 2006; and had changed his law clerk's hourly rate from $58 to $250.

115. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. making a false statement of material fact in connection with a lawyer disciplinary matter, in violation of Rule 8.1(a)(1) of the Illinois Rules of Professional Conduct (1990);

  2. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990); and

  3. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

COUNT V
(Failure to communicate and failure to return unearned fees - Mary Ann and Steven Travnik)

116. In 1999, Mary Ann and Steven Travnik's ("Mary Ann", "Steven" and/or "the Travniks") home in Northbrook, Illinois, was damaged by mold caused by a leaking dishwasher. The Travniks' house became uninhabitable in 2000.

117. In 2000, the Travniks asserted a claim against Safeco, their insurer, for their losses.

118. On August 18, 2001, Respondent agreed to represent the Travniks in a claim against Safeco and other parties who may have been responsible for the damages to the Travniks' home, including Boelter & Yates, Inc., Brouwer Brothers Steamatic, Inc., and ABT [sic] Electronics, Inc. Respondent agreed to charge the Travniks an hourly rate of $250, and agreed to bill in increments of a tenth of an hour. Respondent further agreed that upon an exhaustion of the initial $10,000 advance fee payment, Respondent would bill for additional fees on a quarterly basis. The Traviks paid Respondent $10,000 for an advance fee payment.

119. On October 5, 2001, Respondent filed a lawsuit on the Travniks' behalf entitled Mary Elizabeth Travnik, a minor, by her Parents and Next Friends, Stephen J. Travnik and Mary Ann Brederman Travnik, and Mary Ann Brederman Travnik and Stephen J. Travnick, v. Safeco Insurance Company of Illinois, Boelter & Yates, Inc., Brouwer Brothers Steamatic, Inc, and ABT [sic] Electronics, Inc., Cook County case no. 01 L 012011.

120. On July 16, 2002, at Respondent's request, the Travniks paid Respondent an additional $12,000 in fees.

121. On May 6, 2003, Respondent's office sent the Travniks an invoice for services that stated that as of April 24, 2003, Respondent's firm had spent 40.90 hours on the litigation, and showing that after a deduction for the hours and expenses from the fees paid in advance, the Travniks had a credit balance of $13,561.50.

122. In October 2003, Safeco's attorney, James Best ("Best") and Respondent reached an agreement regarding the Travnik's claims against Safeco. Pursuant to the agreement, Safeco agreed to pay the Travniks $468,000 for their residence and the unattached structures; Safeco would pay the Travniks $7,000 for any personal injury claims (a noncovered loss under the Safeco policy); Safeco would pay the Travniks $62,500 for lost or damaged personal property; The Travniks would execute a lien in favor of Safeco in the amount of $118,000 and the Travniks would assign to Safeco their rights against Boelter & Yates and Brouwer Brothers, who provided consulting and remediation services, for the claims and amounts Safeco had paid.

123. In addition, Safeco and Travniks agreed that if Boelter & Yates and Brouwer Brothers made a settlement offer that the Travniks and Safeco could not agree on, Safeco and the Travniks agreed to cooperate in pursuing their claims against Boelter & Yates and Brouwer Brothers, including the sharing of the costs of any expert testimony that benefitted them mutually.

124. On or before October 28, 2003, Respondent asked the Travniks to come to his office to sign the paperwork to effectuate the settlement described above.

125. On October 28, 2003, Respondent explained to the Travniks that Safeco would pay the majority of the costs to sue the contractors because Safeco would receive the ultimate benefit of that work.

126. The Travniks signed a covenant not to sue ("covenant"), with the terms outlined above, except that the lien of $118,000 was not addressed in the covenant.

127. The Travniks signed a separate document granting Safeco a lien of $118,000. Respondent stated to the Travniks that Safeco would not assert its right to enforce the lien, and that if Safeco's litigation against the contractors was successful, Safeco would release the lien. Respondent further told the Travniks that Safeco could not make them sell their property.

128. At the October 23, 2003 meeting, Respondent gave the Travniks a check in the amount of $330,303.20. Respondent stated that he was keeping $63,000 for fees already earned, and $137,000 for "future fees."

129. The Travniks questioned Respondent about how his fees could be $63,000, in view of the billing they had received showing a credit of over $13,000. Respondent agreed to send the Travniks an itemized invoice for the $63,000 he said his firm had earned, and to send the Travniks copies of the covenant not to sue and the separate lien in favor of Safeco in the amount of $118,000. At no time did Respondent send the Travniks an itemized invoice for the $63,000 in fees he claimed to have earned.

130. At the October 23, 2003 meeting, Respondent represented to the Travniks that he would place the $137,000 he was withholding as "future fees" in a separate, interest-bearing account that the Travniks could access at any time.

131. At no time did Respondent establish a separate, interest-bearing account for the Travniks, and, instead, Respondent deposited the $137,000 he withheld from the Travniks' settlement check into his business account.

132. Respondent's representation to the Travniks that the $137,000 in "future fees" would be held in a separate interest bearing account was false. Respondent knew the representation was false because he deposited the $137,000 into his business account.

133. On at least fifty (50) occasions after October 2003, Mary Ann asked Respondent for an itemized invoice on the attorneys fees Respondent claimed he had earned.

134. At no time did Respondent send the Travniks a bill for services, nor did he provide an itemization of the $63,000 in attorneys fees he asserted the Travniks owed as of October 28, 2003.

135. In 2006, at the Travniks' request, John Keating, the Travniks' accountant, asked Respondent to send the Travniks an itemization of Respondent's time. Respondent was aware of this request.

136. On November 6, 2006, at the Travniks' request, Mary Ann's brother, Joseph Brederman asked Respondent for an itemized bill for the Travniks. Respondent was aware of this request.

137. At no time did Respondent provide the Travniks with an itemized bill of the $63,000 in attorneys' fees. In November 2009, in response to a request from the Administrator, Respondent an invoice to the Administrator; this was then sent to the Travniks. The invoice had no itemization of the $63,000 in attorneys' fees.

138. On numerous occasions between 2003 and 2009, the Travniks requested a copy of the lien in favor of Safeco, and further requested an explanation of why Safeco was asking them to sell their home. Respondent did not answer the Travniks question, or send them a copy of the lien. Respondent was aware of this request.

139. On April 26, 2006, Safeco was dismissed from the litigation in case no. 07 L 11378 (previously docketed as case no. 01 L 012011).

140. On April 1, 2009, the court granted Boelter & Yates and Brouwer Bros.' previously filed motion for summary judgment in case no. 07 L 11378.

141. On May 1, 2009, Respondent filed a motion for reconsideration in case no. 01 L 11378.

142. On July 7, 2009, Mary Ann asked Respondent via email for a written explanation of several matters in the case.

143. Respondent replied via email on July 7, 2009, and told Mary Ann that if she asked again for an explanation, he would withdraw from the case.

144. On August 20, 2009, Respondent filed a motion to withdraw from case no. 01 L 11378, citing a conflict between his office and the Travniks. The Court allowed Respondent to withdraw from the case. After withdrawing, Respondent never sent a bill or refunded any money to the Travniks.

145. At no time prior to October 2003 did Respondent provide legal services of $63,000 to the Travniks regarding the claims related to case number 01 L 012011. On or before January 2010, the Travniks new counsel requested an accounting and refund of unearned fees from Respondent. In August 2011, the Travniks sought payment of the unearned fees in a counter-claim they filed in David Novoselsky, d/b/a Novoselsky Law Offices v. Mary Ann Brederman-Travnik, et al., Cook County case number 2009 L 14514. The counter-claim was filed in a case originally filed by Respondent in case number 2009 L 14514, in which Respondent sued Mary Ann Travnik, her brother Joseph Brederman, Jr., and the Travniks' new attorneys, Mark Lyman and Steven Varhola. In case number 2009 L 14514, Respondent alleged that the Travniks owed him additional unspecified fees, and alleged that all defendants engaged in an abuse of process, and aiding and abetting the commission of a fraud.

146. On May 7, 2010, case number 07 L 11378 was dismissed.

147. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. failure to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct (1990);

  2. failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (1990);

  3. failure to promptly refund any part of a fee paid in advance that has not been earned, in violation of Rule 1.16(e) of the Illinois Rules of Professional Conduct (1990);

  4. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990);

  5. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute; and

  6. failure to, upon request by the client, promptly render a full accounting regarding property in which the client has an interest, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct (1990).

COUNT VI
(Improper statements to opposing counsel - Jeanine L. Stevens)

148. In 2002, Claudia Zvunca ("Claudia") was killed when she was struck by a Greyhound bus. Claudia had been traveling with her minor daughter, Cristina Zvunca ("Cristina"), and Cristina witnessed the incident. Following Claudia's death, the administrator of Claudia's estate, F. John Cushing ("Cushing") commenced a wrongful death case against Greyhound and other defendants. The case was captioned F. John Cushing, Administrator of the Estate of Claudia Zvunca, deceased, and Cristina Zvunca, a minor by Mariana E. Ammendola, as guardian ad litem v. Motor Coach Industries International, Inc., Greyhound Lines, Inc. and Wesley Jay Tatum, Cook County case number 04 L 10431. The case was later renumbered after an appeal as case number 07 L 3391.

149. Cushing, the Administrator of Claudia's estate, hired the law firm of Clancy and Stevens to prosecute the wrongful death claim based on Claudia's death. Jeanine Stevens ("Stevens") of the firm appeared in the matter. Respondent represented Claudia's widower, Tiberu Klien ("Klien") at the times described in this Complaint.

150. As discussed more specifically below, beginning in 2008, Respondent called Steven's vulgar names. As a consequence of Respondent's conduct, after February 2008, Stevens refused to speak with Respondent and communicated with him only by letter or in open court.

151. On approximately 10 occasions, in 2008 and 2009, Respondent called Stevens a "bitch" or "fucking bitch", and called her "cunt" on at approximately five occasions, "slut" or
"whore" on two or three occasions, "asshole" on at approximately 10 occasions, and "pervert" on approximately five occasions.

152. Specifically, on September 3, 2009, Respondent, Stevens, and other counsel appeared in case number 07 L 3391. While on the record, Respondent stated on the record in case number 07 L 3391 to Stevens "[S]till hanging around the bars and picking up the DePaul students?" In addition to his statement on the record, on two other occasions, Respondent stated to other counsel in Steven's presence, in a voice that Stevens could hear: "She [Stevens] has been seen picking up boys at DePaul bars and taking them home with her."

153. Respondent's referred to Stevens as a "bitch", "fucking bitch", "cunt", "slut" and "whore", and stated that Stevens had been seen picking up boys at DePaul bars for no other purpose than to harass or embarrass Stevens.

154. On September 11, 2009, Respondent, Stevens and others were appearing in case number 07 L 3391. Prior to the court hearing, Respondent approached Stevens and said to her "Nice dress, slut."

155. Prior to the hearing on September 11, 2009, Stevens handed a motion to Respondent without speaking, and Respondent stated to her "Go fuck yourself." Respondent then added "you asshole."

156. When the judge returned to the courtroom, Stevens made a statement on the record regarding the words Respondent had used to her before the hearing.

157. Respondent responded that Steven also swears, and then referred to her, twice, as a "liar."

158. On September 17, 2009, Respondent, Stevens and others appeared before the court in case number 07 L 3391. During the hearing, Respondent called Stevens a "liar" and referred to Stevens as "Miss Stevens who molested this child."

159. On September 24, 2009, Respondent, Stevens and others appeared for a hearing in case number 07 L 3391. The judge stepped out of the courtroom, and Respondent approached Stevens. Stevens, who continued to refuse to talk to Respondent, and started walking away and stood next to the judge's chambers. Respondent followed Stevens. Stevens again walked away from Respondent, and Respondent stated to her "Bye, bitch."

160. At the conclusion of the hearing on September 24, 2009, Stevens stated that she wanted to put the Respondent's comment of "Bye, bitch" on the record. During the discussion on the record that followed, Respondent stated that Stevens "was the same woman who physically and sexually abused [Cristina]."

161. As the September 24, 2009 hearing was concluding, Respondent turned to Stevens and called her a "pervert."

162. Respondent called Stevens obscene names, used obscene language, and, while on the record, made the statements that Stevens had physically and sexually abused Cristina, and that Stevens was a "pervert" and "liar" for no other reason than to harass or embarrass Stevens.

163. Many of Respondent's statements to Stevens described above were made at a time when Stevens and Respondent were not engaged in an argument or conversation.

164. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. taking an action that Respondent knew would serve merely to harass or maliciously injured another, in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct (1990);

  2. 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);

  3. 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

  4. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

COUNT VII
(Improper statements to opposing counsel - John Xydakis)

165. The Administrator realleges Paragraph 148, above as Paragraph 165.

166. On September 28, 2010, after Klein discharged Respondent, Attorney John Xydakis ("Xydakis") entered his appearance on behalf of Klein in Cook County case number 07 P 7929, In re Estate of Cristina Zvunca.

167. On May 12, 2011, case number 07 P 7929 was set for hearing before Judge James Riley on Cristina Zvunca's motion to disqualify, filed by Xydakis on behalf of Klien. In the motion, Xydakis argued that Respondent should be removed from the case based on a conflict of interest.

168. At approximately 12:30 p.m., Judge Riley informed the parties that they should come back at 1:30 p.m. for the hearing. Judge Riley, Xydakis, Judge Riley's clerk, attorneys James Dahl, Thomas Clancy, F. John Cushing, Steven Kuh and Kathy Mackey were present.

169. Respondent stood up from the jury box, where he had been sitting, and stated loudly on at least two occasions that he had seen Xydakis snorting cocaine in the restroom at the courthouse.

170. Respondent's statement that Xydakis was using cocaine in the restroom was false, and he knew it was false because he did not see Xydakis using cocaine in the restroom.

171. Respondent also stated that Xydakis was a "coke head" and an "addict" and that "you cannot believe a word that comes out of his mouth."

172. Later, in the afternoon of May 12, 2011, Judge Riley conducted a hearing in case number 07 P 7929. Respondent, Xydakis, and other counsel were present. A court reporter transcribed the hearing.

173. During the hearing, Respondent referred to Xydakis as an "idiot" and called him a "coke head." He also said to Xydakis "the cocaine has got you -."

174. Respondent made the statements that Xydakis was a "coke head," "addict" and "idiot" and that "you cannot believe a word that comes out of his mouth" for no other substantial purpose than to embarrass or burden Xydakis.

175. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. knowingly making a false statement of fact to a tribunal, in violation of Rule 3.3(a)(1), of the Illinois Rules of Professional Conduct (2010);

  2. 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 (2010);

  3. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  4. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

COUNT VIII
(Improper statements to a sheriff's deputy - Mary Kate Kennealy)

176. The Administrator realleges paragraph 148, above, as Paragraph 176.

177. On April 15, 2009, Respondent was appearing before Judge McGury in case number 07 P 7929.

178. Cook County Deputy Sheriff Mary Kate Kennealy ("Kennealy") was assigned to Judge McGury's courtroom on that day for purposes of courtroom security.

179. During the hearing, Respondent raised his voice several times while addressing the court. Kennealy asked Respondent to keep his voice down.

180. Respondent responded to Kennealy that she could not tell him what to do in the courtroom.

181. After the hearing concluded, and while the parties were waiting for an order to be entered, Kennealy was in the hallway outside the courtroom speaking to one of the attorneys who had appeared in the case that day, Peter Hoste ("Hoste").

182. Respondent approached Kennealy in the hallway and pointed his finger in her face, and loudly and repeatedly stated to her that she could not tell him what to do in court. Respondent's finger was within several inches of Kennealy's face.

183. Respondent stated that he wanted to talk to Kennealy's supervisor. Kennealy contacted her supervisor, Sargent Thomas Boyd ("Boyd"), who came to the hallway. Deputy Sargent J. Reynolds also appeared.

184. Boyd asked Respondent two or three times to give him his attorney identification card. Respondent refused to give Boyd his card.

185. Respondent then called Kennealy a "dumbbell" and said he would "have your [Kennealy's] job."

186. Sargent Boyd contacted Sargent William Nolan for back up assistance. Nolan arrived and discussed the matter with Respondent. After Nolan spoke to Respondent for a few minutes, Respondent gave Nolan his attorney identification card.

187. On April 20, 2009, Kennealy filed a Request for Investigation of Respondent with the Administrator regarding the above incident.

188. May 7, 2009, at approximately 2 p.m. outside of Room 1806, Respondent approached the courtroom for a hearing in case number 07 P 7929. Respondent again told Kenneally he would "have her job."

189. On May 7, 2009, the parties went on the record in case number 07 P 7929.

190. While on the record Respondent stated to the judge that he would like the matter sent to another court, but did not make a formal motion to transfer the case. Respondent stated that Kenneally had filed a complaint against him with the ARDC. Respondent stated "And her- I've - She went to registration complaining that I said I was going to get her job. I intend to do that. I reminded her of that." Respondent also stated, after noting that Sargent Nolan was present in the courtroom, "And, apparently, every time I walk through a courtroom, I'm going to have to deal with a platoon of sheriff's deputies who seem to think they run the courthouse."

191. Judge McGury then stated that she would like to proceed on the emergency motion, Respondent stated: "I don't know how we can, your Honor, because if I don't argue properly maybe they'll haul me off in cuffs because they decide they don't like my argument."

192. Respondent stated "I'm asking you to transfer this, your Honor. I will defer to your decision, and I will probably be in on a federal civil rights action to find out why I have to deal with garbage like this every time I walk in because your sheriff's upset."

193. The judge stated "Now, that's insulting."

194. Respondent stated "It should be, your Honor."

195. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. taking action that Respondent knew 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);

  2. 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);

  3. 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

  4. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

 


 

Denise Church
Attorney Registration and
Disciplinary Commission
One North Old Capitol Plaza, #333
Springfield, IL 62701
Telephone: (217) 522-6838

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Denise Church
       Counsel for the Administrator