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

In the Matter of:

WILLIAM PAUL NOVICK,

Attorney-Respondent, 

No. 6182947.

 

Commission No. 2012PR00019

FILED - March 29, 2012

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorneys, Emily A. Adams and Peter L. Rotskoff, pursuant to Supreme Court Rules 761 and 753(b), complains of Respondent, William Paul Novick, who was licensed to practice law in Illinois on November 1, 1982, 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, and which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

COUNT I
(False and/or reckless statements about a judge)

1. On or about July 31, 2008, Bradley C. Burklow (hereinafter "Bradley") filed for divorce against Deeanna Burklow (hereinafter "Deeanna") in Saline County, Illinois. The matter was captioned In re the Marriage of Bradley C. Burklow v. Deeanna Burklow, and was assigned case number 2008 D 108 (hereinafter "the Saline County Case").

2. On August 4, 2008, Deeanna filed for divorce against Bradley in Williamson County. The matter was captioned In re the Marriage of Deeanna M. Burklow v. Bradley C. Burklow, and was assigned case number 2008 D 278 (hereinafter "the Williamson County case").

3. On or about September 17, 2008, in the Williamson County case, the Honorable James R. Moore (hereinafter "Judge Moore") filed a temporary order that set forth a custody arrangement for the parties' minor son.

4. In September 2008, the Saline and Williamson County cases were consolidated, and the divorce proceeded in Saline County under case number 2008 D 108.

5. On or about October 9, 2008, Bradley filed a motion asking to modify the custody arrangement set forth in the temporary order described in paragraph three, above. On or about November 6, 2008, Deeanna filed a verified petition for an order of protection in Saline County, and that new matter was assigned case number 2008 OP 144. On or about November 12, 2008, Deeanna filed a response to Bradley's motion to modify the existing temporary order. The Honorable Joseph Leberman (hereinafter "Judge Leberman") conducted a hearing on November 12, 2008, November 21, 2008, and December 12, 2008 on Bradley's motion to modify the existing temporary order and on Deeanna's request for a verified order of protection.

6. At all times alleged in this complaint, in the First Judicial Circuit there was in effect Local Rule 1.12 which provided:

Unless the court directs otherwise, whenever a written order or judgment is required, the attorney for the prevailing party shall promptly prepare and present a draft to the court, with proof of service on opposing counsel. The draft tendered may be entered forthwith unless objection is made within five working days after service of the draft.

7. Judge Leberman did not request the parties to prepare a proposed order following the hearings referred to in paragraph five, above. Instead, on December 18, 2008, Judge Leberman prepared and entered an order in which he found that the evidence submitted by Deeanna in support of her request for an order of protection had been "contrived, convenient, and inconsistent," and that Deeanna's request for an order of protection made allegations that were not substantiated by her testimony or the testimony of other witnesses. Judge Leberman's order also granted Bradley's motion to modify the existing temporary order and granted the parties joint custody over their minor son. The order set forth a custody schedule in which Deeanna and Bradley were to have physical custody of the child every other week.

8. In or about January 2009, Deeanna's attorney, Neil Heflin (hereinafter "Heflin"), withdrew from representing her. Heflin had been employed by the same law firm as Judge Leberman, but they were not employed by the firm at the same time.

9. On or about January 16, 2009, Respondent agreed to represent Deeanna in matters relating to both the Saline County divorce case and the order of protection case.

10. On January 20, 2009, Respondent filed a motion in which he asked, among other things, that Judge Leberman reconsider his December 18, 2008 order, that the order be vacated, that the court transfer Bradley's motion to modify existing temporary order to Judge Moore, and that a hearing be held on the motion to modify existing temporary order. Respondent did not review the court record or any other materials prior to filing that motion, and relied exclusively on Deeanna's statements when he prepared the motion. In that motion, Respondent made the following statements:

Said Order of December 18, 2008 contains language that might lead a lay person . . . to believe that same was prepared by [Bradley Burklow] himself (or his attorney) and was thereafter signed by the judge presiding without even reading or reflecting upon same . . . On behalf of [Deanna Burklow], the undersigned questions whether there was strict compliance with the provisions of . . . Local Rule 1.12.

11. Respondent's statements implied that Judge Leberman did not properly follow Local Rule 1.12 in preparing his order, and that the judge merely signed an order prepared by Bradley or his attorney out of favoritism towards Bradley or his counsel. At the time Respondent made the statements in his January 20, 2009 motion, he had no reasonable basis for the statement that Judge Leberman had not prepared or read his order, or that he had not complied with Local Rule 1.12.

12. On February 20, 2009, Judge Leberman denied Respondent's motion for reconsideration.

13. On March 27, 2009, Respondent filed a petition for substitution of Judge Leberman for cause in the Saline County divorce case. In the petition, Respondent made the following statements:

Prior to and during the initial hearing held on November 12, 2008, the Hon. Joe Leberman failed to adhere to the mandates of said of [sic] Supreme Court Rule 631 with regard to the issues of "disqualification" and "remittal of disqualification" contained therein. Said judge was clearly disqualified from these cases inasmuch as both he and Neal [sic] Heflin (DeeAnna M. Burklow's counsel during the aforementioned hearings) were employed by [the same firm] within the preceding three (3) years.

14. The statements Respondent made in his petition implied that Judge Leberman improperly failed to recuse himself based on a business or personal relationship with Heflin. Respondent knew that his statements alleging that Judge Leberman violated Supreme Court Rule 63, and that he had previously been associated with Heflin, were false, or he had no reasonable basis for making the statements.

15. On April 22, 2009, the Honorable Mark Clark, Chief Judge of the First Judicial Circuit (hereinafter "Judge Clark"), denied Respondent's March 27, 2009 petition for substitution of Judge Leberman. In his order, Judge Clark found that Judge Leberman and Neil

_________________________
1
Supreme Court Rule 63 provides in pertinent part

C. (1)(c) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where . . . the judge was, within the preceeding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy . . .

D. Remittal of Disqualification.  A judge disqualified by the terms of Section 3C may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification.

Heflin were not associated, nor had Heflin been employed by the same firm while Judge Leberman was employed by the firm. Judge Clark further found:

The Record of Proceedings for the [hearing on the Motion for Reconsideration] reveal that, in response to the inquiry of Judge Leberman, [Respondent] told Judge Leberman ". . . these motions were prepared basically without the knowledge of anything . . .", and that ". . . I simply threw everything I thought I needed—anything I could think of into this motion for the simple reason that I only had one business day to file it."

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

  1. making a statement the lawyer knows 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(a) 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);

  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 II
(False and/or reckless statements about a judge)

17. In 2007, Respondent was employed by Mitchell Law Office, P.C. (hereinafter "Mitchell Law Office"). In 2007, Mitchell Law Office agreed to represent Gary L. Wiedle (hereinafter "Wiedle") in a breach of contract action against Kristine Barton and Robert J. Barton (hereinafter "the Bartons") in Marion County, Illinois. On March 30, 2007, Mitchell Law Office filed a one-count complaint on behalf of Wiedle. The matter was captioned Gary L. Wiedle v. Kristine Barton and Robert J. Barton, and was assigned case number 2007 CH 35.

18. Shortly thereafter, Mitchell Law Office assigned Respondent as the associate to work on the Wiedle matter. On or about January 14, 2008, Respondent filed a second amended complaint that contained four separate counts alleging different bases of liability, one of which was that a constructive trust had been created in favor of Wiedle. On or about January 25, 2008, the attorney for the Bartons filed a motion to dismiss Wiedle's second amended complaint. On or about February 20, 2008, Respondent filed a reply to the Bartons' motion to dismiss. The court held a hearing on February 26, 2008. On March 26, 2008, the Honorable David Sauer (hereinafter "Judge Sauer") entered an order dismissing Wiedle's second amended complaint with prejudice.

19. On or about April 11, 2008, Respondent filed a notice of appeal of Judge Sauer's March 26, 2008 decision to dismiss the second amended complaint. On July 31, 2009, the Fifth District Appellate Court issued an order affirming Judge Sauer's ruling.

20. In or about August 2009, Respondent filed a petition for rehearing, which was granted by the appellate court on November 13, 2009. On June 28, 2010, the appellate court issued an order reversing Judge Sauer's ruling and reinstating the one count alleging the existence of a constructive trust.

21. On September 11, 2010, Respondent prepared and sent a letter to the Bartons' attorney, Eric Terlizzi, which stated, in part:

I have never lost any appeal, and I was not going to allow three appellate court justices (who apparently knew absolutely nothing about the law of constructive trusts) to ruin my perfect record, particularly since I knew more law than anyone involved in this case (especially Judge Sauer). Marion County is much better off without him on the bench, given the possibility that he might have been involved with "nose candy" habits, a rumor with some support about which I became aware soon after my entrance into the case. (emphasis in original)

22. Respondent intended for "nose candy habits" to mean cocaine use. Respondent had no reasonable basis for alleging that Judge Sauer used cocaine. Respondent made the statements with reckless disregard for their truth or falsity.

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

  1. making a statement the lawyer knows 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(a) of the Illinois Rules of Professional Conduct (2010);

  2. conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) 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 III
(Frivolous filings in the Wiedle matter)

24. The Administrator realleges paragraphs 17 through 23, above.

25. The basis for Wiedle's complaint was that an oral agreement existed between Wiedle's real estate agent, Kenneth Bauer (hereinafter "Bauer") and Kristine Barton concerning the mineral estate underlying the surface of certain land sold by the Bartons to Wiedle in 1996.

26. On October 6, 2010, the attorney for the Bartons deposed Bauer. During this deposition, Bauer denied that such oral agreement was ever made and further testified that he never told either Wiedle or Respondent that such oral agreement had been made.

27. On April 28, 2011, the court granted summary judgment against Wiedle and in favor of the Bartons.

28. On May 19, 2011, the Bartons filed a motion for Supreme Court Rule 137 sanctions against Respondent.

29. On July 14, 2011, the court granted the Bartons' motion for sanctions and stated:

"The only way WIEDLE could ever prove that BARTONS agreed to purchase the mineral interest on his behalf, is the testimony of Kenneth R. Bauer. . . Bauer's deposition testimony established not only by a preponderance, not only clearly and convincingly, but beyond any possible doubt that WIEDLE could never, under any circumstances, ever prove his case . . . Upon receipt of [Bauer's] deposition transcript, [Respondent] should have known that this case was over . . . Undaunted, [Respondent] forged on, basing his entire argument on the existence of non-existent judicial admissions. This court previously commented on [Respondent's] unprofessional conduct . . ."

30. On August 15, 2011, Respondent filed a notice of appeal the court's April 28, 2011 order and the court's July 14, 2011 order.

31. As of March 28, 2012, the date the Inquiry Board voted a complaint in this matter, the appeal in the Wiedle matter was still pending.

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

  1. 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;

  2. using means in representing a client that have no substantial purpose other than to embarrass, delay or burden a third person in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct; and

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

COUNT IV
(Improper statements regarding a third person)

33. In August 2010, Respondent agreed to represent Athens DeMartini (hereinafter "DeMartini") in a child support case against David Diaz (hereinafter "Diaz") in Franklin County, Illinois. That matter was captioned Athens DeMartini v. David Diaz, and was assigned case number 2008 F 6.

34. On May 27, 2011, Diaz filed a request for an order of protection against DeMartini in Franklin County, Illinois, and that matter was assigned case number 2011 OP 219. On June 13, 2011, the court granted the order of protection and set a visitation schedule for the parties providing that DeMartini was granted visitation with the parties' minor child every other weekend and on Wednesday of each week.

35. On Friday, June 24, 2011, Wednesday, August 17, 2011, Wednesday, September 7, 2011, and Wednesday, September 14, 2011 Diaz did not bring the child to the agreed-upon meeting place to allow DeMartini her scheduled visit with the child.

36. On September 14, 2011, Respondent prepared and sent a letter to Diaz's attorney, Aaron Hopkins (hereinafter "Hopkins"). The letter stated, in part: "[Diaz] cannot seem to abide by the Court's order of July [sic] 13, 2011. It's a damn shame that the judge cannot sentence [Diaz] to hang by the neck until dead, dead, dead."

37. On September 21, 2011, Respondent prepared and sent a letter to Hopkins. The letter stated, in part: "[Diaz] is a lousy father, as well as a drunk, and, as you know, has recently been charged with yet another battery upon a woman (making him also a coward)."

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

  1. 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 (2010);

  2. 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

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

COUNT V
(False statements about a client)

39. In or about October 2010, Respondent agreed to represent Bryan Jones (hereinafter "Bryan") in child support matters pending against Bryan in Williamson County, Illinois. One matter was captioned Rachel Rask v. Bryan K. Jones, and was assigned case number 2008 F 53. The other matter was captioned Sherry L. Sutton v. Bryan K. Jones, and was assigned case number 2002 F 104.

40. On or about June 6, 2011, there was a status hearing in the matters mentioned in paragraph 39, above, which Bryan was required to attend. Respondent knew or should have known that Bryan was required to attend that hearing. Respondent did not inform Bryan that he was required to appear at the hearing and Bryan did not appear. As a result, the court ordered body attachments to be placed on Bryan in each of the two cases described in paragraph 39, above.

41. On June 7, 2011, Respondent called Bryan to inform him that the judge had issued the body attachments, and that Bryan would be arrested for failing to attend the hearing. The conversation between Bryan and Respondent became heated, and Bryan expressed frustration with Respondent, but did not make any threats against anyone. Respondent told Bryan that he would ruin Bryan's life.

42. On June 7, 2011, Respondent made an oral and written report to the Williamson County Sheriff's Department and the Marion County Sheriff's Department in which he claimed that on June 6, 2011 and June 7, 2011, Bryan had threatened to kill everyone involved in the two cases referred to in paragraph 39, above, including Assistant Attorney General Kevin Boester, the Honorable Brian D. Lewis, and Respondent. Respondent knew that these statements were false, because Bryan had not made those statements.

43. As a result of Respondent's reports to the sheriffs' departments, the court issued a warrant for Bryan's arrest. On June 7, 2011, the Williamson County Sheriff's Department arrested Bryan.

44. On June 8, 2011, the Williamson County State's Attorney (hereinafter "the state's attorney") charged Bryan with four counts of threatening a public official in violation of 720 ILCS 5/12-9(a)(2). The matter was captioned People of the State of Illinois v. Bryan K. Jones and was assigned case number 2011 CF 255.

45. After June 8, 2011, a hearing was held in case number 2011 CF 255, at which Respondent testified that he had informed Bryan of the June 6, 2011 hearing date in the matters outlined in paragraph 39, above. Upon cross-examination by Bryan's attorney, Respondent conceded that he did not remember if he told Bryan of the hearing, and then admitted that he probably had not given Bryan proper notice of the hearing.

46. On July 1, 2011, following Respondent's testimony, the state's attorney, on his own motion, dismissed the charges against Bryan in case number 2011 CF 255.

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

  1. revealing information relating to the representation of a client, in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct (2010);

  2. conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(c) 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 brings the courts or the legal profession into disrepute.

COUNT VI
(Criminal Conduct-Driving While Intoxicated)

48. On February 23, 2006, Respondent was in Euless, Texas, where he drank several alcoholic beverages and drove to a bar. While driving in the bar's parking lot, Respondent struck another vehicle. Before Respondent entered the bar, at approximately 11:45 p.m. on February 23, 2006, Euless Police Officer Patrick Bush arrived in the parking lot of the bar to investigate the car accident. Officer Bush smelled alcohol on Respondent's breath and noticed that Respondent had bloodshot eyes, slurred speech, and an unsteady balance. Officer Bush conducted three field sobriety tests: the Horizontal Gaze Nystagmus, the walk and turn, and the one leg stand. During the Horizontal Gaze Nystagmus, Respondent continually swayed and Officer Bush had to keep him from falling. During the walk and turn, Respondent could not keep his feet on the line and Officer Bush had to keep Respondent from falling. During the one leg stand, Respondent was unsteady on his feet and Officer Bush terminated the test before it was finished because Respondent could not maintain his balance. Officer Bush arrested Respondent on charges of driving while intoxicated. At the police station, Respondent submitted to a breathalyzer test, which indicated a blood alcohol concentration of 0.148.

49. On February 24, 2006, the Tarrant County Criminal District Attorney charged Respondent with driving while intoxicated, a Class B misdemeanor. The matter was captioned The State of Texas vs. William Novick, and was assigned case number 1012798 in the County Criminal Court Number Three of Tarrant County.

50. On August 2, 2006, Respondent pled guilty to driving while intoxicated. The judge sentenced Respondent to 90 days in jail and probation for 24 months. The judge also assessed a $750 fine and $345 for court costs against Respondent. The judge ordered Respondent to pay the fines on an intermittent basis by paying $50 a month with the first payment due September 2, 2006 and the final payment due April 2, 2008. The judge ordered Respondent to complete 24 hours of community service by August 2, 2007, report to a probation officer monthly, pay a monthly $50 probation fee, participate in the DWI Education Program, undergo a substance abuse evaluation, and attend a victim impact panel.

51. As of February 9, 2007, Respondent had not met with his probation officer, had not paid the monthly probation fee, and had not made fine and court cost payments.

52. On February 9, 2007, the District Attorney filed a motion to revoke Respondent's probation due to Respondent's violation of his probation. That same day, the court granted the District Attorney's motion and issued a warrant for Respondent's arrest. Bond was set at $5,000.

53. As of March 28, 2012, the date the Inquiry Board voted a complaint in this matter, the warrant issued for Respondent's arrest was still pending.

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

  1. committing a criminal act, driving while under the influence of alcohol, that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct;

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

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

COUNT VII
(Failure to notify the Administrator of conviction within 30 days)

55. The Administrator realleges paragraphs 48 through 54 of Count VI, above.

56. Supreme Court Rule 761(a) provides that it is the duty of an attorney admitted in Illinois who is convicted in any court of a felony or misdemeanor to notify the Administrator of the conviction in writing within 30 days of the entry of the judgment of conviction. Pursuant to Rule 761(a), Respondent was required to notify the Administrator of his conviction of driving while intoxicated in Tarrant County, Texas, case number 1012798 by September 1, 2006.

57. Respondent did not notify the Administrator of his conviction of driving while intoxicated in case number 1012798 by September 1, 2006, as required by Supreme Court Rule 761(a).

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

  1. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct;

  2. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct; and

  3. failing to notify the Administrator of his conviction, in writing within 30 days after the entry of the judgment of conviction, in violation of Supreme Court Rule 761(a).

WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held pursuant to Supreme Court Rules 761 and 753(b), and the Panel make findings of fact, conclusions of fact and law, and a recommendation of such discipline as is warranted.

Emily A. Adams
Peter L. Rotskoff
Counsel for Administrator
One North Old Capitol Plaza, Ste. 333
Springfield, Illinois 62701
Telephone: (217) 522-6838
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Emily A. Adams