BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

LINDA ROSE MONTGOMERY,

Attorney-Respondent,

No. 6202501.

Commission No. 2014PR00101

FILED --- August 26, 2014

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Alicia F. Duncan, pursuant to Supreme Court rule 753(b), complains of Respondent Linda Rose Montgomery ("Respondent"), who was licensed to practice law in Illinois on November 9, 1989, and alleges that Respondent has engaged in the following conduct which subjects her to discipline pursuant to Supreme Court Rule 770:

COUNT I
(Presenting a professional disciplinary charge to obtain an advantage in a civil matter)

1. In or about May 2010, attorney David Wentz ("Wentz") was representing a landlord, Josephine Stegeman ("Stegeman"), in connection with a dispute against tenants Gloria Samuels ("Samuels") and Andrew Coleman ("Coleman") related to issues including past-due rent and the habitability of the home in which Samuels and Coleman were residing.

2. On or about May 14, 2010, Wentz served Samuels and Coleman with a five-day notice and a copy of a lease dated June 5, 2009, between Stegeman as lessor and Samuels and Coleman as lessees.

3. In or about May 2010, Respondent was representing Samuels and Coleman in connection with the dispute with Stegeman. On or about May 19, 2010, Respondent notified Wentz by email that she believed that the five-day notice was invalid because the attached lease "is a forgery, which I can easily prove in court" and because her clients were not in breach of the original lease agreement for the late payment of rent. At that time, Respondent further stated that she did not believe it was in her clients' best interests to provide Wentz with a copy of the lease her clients asserted was the original. Although Wentz requested a copy of that purported lease, at no time prior to June 16, 2010, did Respondent provide Wentz with a copy of the lease Respondent claimed was the actual lease.

4. On June 16, 2010, Wentz filed a forcible entry and detainer action in the circuit court of the 12th Judicial District in Will County on behalf of Stegeman, and against Samuels and Coleman, to recover possession of Stegeman's property and for past-due rent, plus attorney's fees and costs of suit. The clerk of the court docketed the matter as Josephine Stegeman v. Gloria Samuels and Andrew Coleman, case number 10 LM 1633.

5. On June 30, 2010, Respondent filed her appearance, an answer and counterclaims on behalf of Samuels and Coleman in case number 10 LM 1633. In a counterclaim, Respondent alleged on behalf of Samuels and Coleman that the lease relating to the property that was the subject of the suit, and which accompanied the five-day notice issued to Samuels and Coleman, was a "fraudulent, falsified document" and that neither Samuels nor Coleman signed the document. Respondent further alleged on behalf of Samuels and Coleman that Stegeman's signature on the lease relating to the property that was the subject of the suit did not match the signature on the "true lease," and that the last date written on the "falsified document" was June 5, 2010, a full year after the parties entered into the "true lease." Respondent attached the purported actual lease to the answer and counterclaims.

6. On July 12, 2010, Wentz filed an answer to the counterclaims Respondent filed on behalf of Samuels and Coleman. In the answer to the counterclaims, Wentz denied that the lease attached to the complaint and the five-day notice that was served upon Samuels and Coleman was a "fraudulent, falsified document."

7. On September 10, 2010, the court in case number 10 LM 1633 granted Respondent leave to file an amended answer and counterclaims, in response to a motion filed by Wentz to strike the ad damnmum clause in the answer and counterclaims. When Respondent filed the amended answer and counterclaims, Respondent again alleged on behalf of Samuels and Coleman that the lease relating to the property that was the subject of the suit, and which accompanied the five-day notice issued to Samuels and Coleman, was a "fraudulent, falsified document." In addition, in the amended counterclaims Respondent made the following allegations:

--"both the true lease and the falsified document appear to be the same form with the exception that the true lease has the word ‘CONFIDENTIAL' written across each page diagonally, in a faded, water mark-like large font";

--"the signatures contained on the falsified lease are not [Samuels's and Coleman's] signatures, and that the signatures purporting to be [Samuels's and Coleman's] signatures are forged. Neither [Samuels or Coleman] signed the document attached to [Stegeman's] complaint";

--"[t]he fraudulent, forged lease, which [Stegeman] attached to the complaint in this action, has different handwritten terms filled in the blank lines of the document. Some of the lines that were left blank in the original lease were filled in, on the falsified lease. These inconsistencies are clearly visible by comparison of both documents and include, but are not limited to, the consideration recited in the fourth paragraph from the top of the first page, the lease term recited in numbered paragraph one, the rent provisions recited in numbered paragraph number two, the use of premises provision in numbered paragraph number four, the animals provision, in numbered paragraph number seventeen, the late charge provision in numbered paragraph number twenty-one, and the lessor's disclosure section which precedes the signature page"; and

--"[t]he line in the middle of the signature page which beings, ‘As to Lessor," has the date of June 5, 2010, handwritten onto the falsified document. The true lease is left blank on that line. The date of June 5, 2010, was a full year after the parties executed their two-year lease."

8. On or about October 14, 2010, Wentz filed an answer to the amended counterclaims which denied that the lease attached to the complaint and the five-day notice that was served upon Samuels and Coleman was a falsified document or a forgery, and denied that the lease in the possession of Respondent's clients was the "true lease." Wentz answered that the information that was filled in on both leases was for the most part consistent and that the alleged inconsistencies were more likely errors by the drafter of the lease possessed by Samuels and Coleman and were immaterial to the basic terms of the lease agreement. Wentz further answered that all signatures on the signature page appeared to be authentic and that Stegeman denied the forgery of any signatures on the lease attached to the complaint and the five-day notice that had been served upon Samuels and Coleman.

9. Despite the allegations in the counterclaims made by Respondent on behalf of Samuels and Coleman, at no time between June 30, 2010 and December 22, 2010, the first day of the trial in case number 10 LM 1633, did Respondent conduct any discovery in an effort to investigate whether any portion of the lease attached to the complaint and the five-day notice was a forgery.

10. On December 22 and 23, 2010, and January 13, 2011, a bench trial took place in case number 10 LM 1633 before the Honorable Joseph C. Polito. After the start of the trial on December 22, 2010, Respondent filed a motion to compel Stegeman to produce the original of the lease attached to the complaint, so that a forensic document examiner could make conclusive findings about the authenticity of that lease. Respondent alleged in the motion that she had consulted with a forensic document examiner, and had been told on December 15, 2010, that no credible forensic document examiner could make conclusive findings from a faxed copy of a document, which was all that Respondent had of the disputed lease. Before the conclusion of the trial on January 13, 2011, Respondent also filed a motion for summary judgment, a motion to join Wentz as a third party defendant for violations of the Fair Debt Collection Practices Act, and a motion for leave to file a second amended answer to the complaint and counterclaims. Judge Polito refused to consider those motions, based on his determination that they were not timely.

11. At the conclusion of the trial, Judge Polito entered an order that judgment for possession of the premises was being entered in favor of Stegeman. The court further ordered that judgment was being entered in favor of Stegeman and against Samuels and Coleman for the sum of $6,750, plus $3,000 attorney's fees, and $320 court costs. The court denied relief on the counterclaims Respondent filed on behalf of Samuels and Coleman. The court stayed enforcement of possession until January 31, 2011.

12. On February 14, 2011, Respondent filed a post-trial pleading ("motion to vacate") on behalf of Samuels and Coleman which contained at least seven motions, including a motion to vacate the January 13, 2011 judgment in case number 10 LM 1633, a motion to consider the motions that had been filed on December 22, 2010 and January 13, 2011, and a motion to substitute judges. In the motion to vacate, Respondent alleged, inter alia, that the landlord's claim had been based on a forged lease, that Wentz had presented the purportedly forged lease as an exhibit at trial, and that Wentz engaged in misconduct throughout the course of the litigation, including the filing of a fraudulent claim and engaging in conduct in violation of the Fair Debt Collection Practices Act.

13. Respondent's filing of the motion to vacate and all its related and referenced motions, provoked numerous other filings and court appearances between February 14, 2011, and October 17, 2012, including, but not limited to: a motion to substitute Judge Polito for cause that was filed by Respondent on behalf of Samuels and Coleman, and Wentz's motion to strike that motion on behalf of Stegeman; a notice of appeal from the circuit court's order which denied the motion to substitute Judge Polito filed by Respondent which was dismissed upon Wentz's motion on November 2, 2011; and responsive pleadings to all of the post-trial motions contained in Respondent's February 14, 2011 motion to vacate.

14. Betweeen February 14, 2011, and October 17, 2012, Wentz attached either portions of or the entire transcript of the proceedings that took place in court on January 13, 2011, in case number 10 LM 1633 to several of his responses to the post-trial motions filed by Respondent. The transcript Wentz attached to his responses was a copy of the transcript that had been prepared by an official court reporter for the circuit court of Will County and which had been certified to be a true and correct transcript of the electronic recording of the proceedings of case number 10 LM 1633 on January 13, 2011.

15. On October 17, 2012, the Court denied Respondent's motion to vacate in case number 10 LM 1633 and all the related and referenced motions.

16. On October 17, 2012, after the court had denied all of Respondent's post-trial motions in case number 10 LM 1633, Respondent signed and forwarded to the Administrator a request for an investigation of Wentz. In that request, Respondent alleged that it was Wentz who had forged Stegeman's signature on the lease relating to the property that was the subject of case number 10 LM 1633, and which accompanied the five-day notice issued to Samuels and Coleman, and that Wentz had presented the purportedly forged lease as evidence at trial. Respondent also alleged that Wentz had conspired with the court reporter who had transcribed the trial proceedings to alter the transcript by not including various (mostly unspecified) comments Respondent believed had been made by Judge Polito. For example, Respondent alleged that during the trial "Judge Polito yelled, very loudly, ‘We will not be hearing any more witnesses,' or something close to that" and that "this yelled statement did not show up in the transcript" and had been "edited out." In the request for investigation of Wentz, Respondent further requested that the Administrator retain a handwriting expert to review the lease in an effort to prove that Wentz had forged the signatures on the lease, and that the Administrator assist Respondent in "obtaining an independent transcription of the record of proceedings" in case number 10 LM 1633.

17. Respondent's statements in the request for the investigation of Wentz, as set forth in paragraph 16, above, were false. Respondent knew or should have known that the statements that Wentz forged the signature on the lease were false, because Respondent knew that Wentz denied on behalf of this clients that the signatures on the lease were forged, because at no time during the pendency of case number 10 LM 1633 did Respondent plead that Wentz forged the signatures on the lease or conduct any discovery in an effort to prove that Wentz, or any other individual, forged the signatures on the lease, and because Respondent otherwise had no reasonable basis to believe that Wentz forged the lease. Further, Respondent knew or should have known that the statement that Wentz conspired with the court reporter to alter the transcript of the trial proceedings was false because the alleged transcript was certified by an official court reporter for the circuit court of Will County to be a true and accurate transcript of the certified electronic recording of the proceedings of case number 10 LM 1633, and because Respondent otherwise had no reasonable basis to believe that Wentz conspired with the court reporter to alter the transcript.

18. On November 16, 2012, Respondent filed a notice of appeal on behalf of Samuels and Coleman in case number 10 LM 1633 before the Illinois Appellate Court, Third District. The Clerk of the Court docketed the matter as Josephine Stegeman, Appellee v. Gloria Samuels and Andrew Coleman, Appellants, appeal number 3-12-0975.

19. At no time between November 16, 2012, and November 30, 2012, did Respondent request that the clerk of the trial court prepare the record on appeal or that the official court reporter prepare the report of proceedings.

20. On November 30, 2012, Respondent filed a docketing statement in appeal number 3-12-0975. The docketing statement did not contain a certification by counsel or any request to the circuit clerk or court reporting personnel for preparation of their respective portions of the record on appeal, as required by Supreme Court Rule 312 relating to the docketing statement required in civil appeals. In lieu of complying with Supreme Court Rule 312, Respondent directed the appellate court to what she referred to as a "Pending Verified Himmel Complaint" and further described substance of the request to investigate Wentz that was sent to the Administrator by Respondent in a portion of the docketing statement entitled, "Underlying Facts to General Statement of Issues Proposed to be Raised." For example, Respondent stated, "On the evening of December 2, Defendant Gloria Samuels, advised her counsel, Linda Montgomery, that she suspected Mr. Wentz to be the forger. [Respondent] contacted the ARDC the next morning concerning her reporting obligations…" and also stated, "Defendants are requesting that the ARDC assist them in procuring an independent transcription of the record of proceedings in this case to document the numerous improprieties Defendants and their counsel, and witnesses in attendance witnessed."

21. Respondent, by signing and forwarding to the Administrator the request to investigate Wentz described in paragraph 16, above, presented disciplinary charges against Wentz in an attempt to obtain an advantage (discovery and monetary assistance by requesting that the ARDC retain a handwriting expert and obtain the transcript of the trial), in a civil proceeding (appeal number 3-12-0975), and in an effort to discredit Wentz. In the alternative, Respondent had no purpose other than to harass or needlessly burden Wentz.

22. On December 13, 2012, Wentz filed a motion to strike Respondent's docketing statement for its failure to comply with Supreme Rule 312, and its reference to extra-judicial, post-trial and irrelevant matters in case number 3-12-0975. In Respondent's response to that motion, she claimed that she, on behalf of her clients, had referenced the request for investigation of Wentz to show that an independent transcription was required to insure an accurate record and that all of the issues addressed in the "Himmel complaint" were highly relevant to the appeal.

23. On January 15, 2013, the appellate court struck Respondent's docketing statement in appeal number 3-12-0975, and allowed Respondent additional time "to file a proper docketing statement."

24. On April 24, 2013, Respondent filed a pleading in appeal number 3-12-0975, entitled, "Response to Motion to Dismiss Appeal and Motion Requesting Additional Time to Obtain the Assistance of Counsel and for Leave to Reply to Objection to Amend Notice of Appeal to Include 6-9-12 Order Granting Appellee's Motion to Substitute Judge as Right," which also contained references to Respondent's communcations with the ARDC, and requested that "the Appellants be granted 90 days to complete the disciplinary complaint process and obtain independent transcription of the record of proceedings, supervised or approved by the authorities involved in the disciplinary actions described in this motion." In Respondent's affidavit which was attached to the motion, Respondent stated, "Mr. Wentz's only response to the Himmel complaint was to file a two page complaint against me accusing me of violating Rule 8.4(g)…" and "I need additional time to complete the disciplinary reports I am working with the disciplinary authorities and work with them to obtain an accurate transcription of the electronic record of proceedings in the trial court."

25. On August 14, 2013, after at least two extensions of time to obtain assistance of counsel, the appellate court dismissed the appeal upon Wentz's motion because the record on appeal had not been paid for or prepared, and the report of proceedings had not been filed. Also, as of the date the appeal was dismissed, no appearance of substitute or additional counsel had been filed on behalf of the appellants.

26. 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 (allegations of a forged lease by opposing counsel, and a conspiracy between opposing counsel and the court reporter to alter trial transcripts), 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 that have no substantial purpose other than to embarrass, delay or burden a third person (by filing a disciplinary action against opposing counsel for the purpose of obtaining discovery, monetary assistance, and advantage in a pending civil matter), in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010);

  3. presenting professional disciplinary actions to obtain advantage in a civil matter (filing a complaint against opposing counsel for the purpose of obtaining discovery and monetary assistance in a pending civil matter), in violation of Rule 8.4(g) of the Illinois Rules of Professional Conduct;

  4. conduct involving fraud, dishonesty, deceit or misrepresentation (filing a request for investigation with the Administraor, and pleadings with the applllate court, that contained false allegations regading the conduct of opposing counsel), in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct;

COUNT II
(Failure to respond to a lawful demand for information from the Commission)

27. On or about December 14, 2012, the Administrator received a request for an investigation of Respondent from David G. Wentz ("Wentz") regarding the matters set forth above in Count I. On or about December 17, 2012, the Administrator initiated a disciplinary investigation which was docketed as "Linda Rose Montgomery in relation to David G. Wentz," Administrator's number 2012 IN 6121.

28. On July 22, 2013, the Administrator issued a subpoena ad testificandum requiring Respondent to appear at the Chicago office of the Commission on September 12, 2013, and to give sworn testimony in connection with Administrator's investigation number 2012 IN 6121. Commission Investigator James Easoz personally served Respondent with the subpoena at her residence on August 15, 2013.

29. Respondent did not appear on September 12, 2013, or at any time for her sworn statement. Respondent's presence at the sworn statement has not been excused, nor did Respondent contact the Administrator to explain her absence or ask to reschedule the date of the statement.

30. As of August 25, 2014, the date on which a panel of the Inquiry Board voted that a complaint be filed in this matter, Respondent had not appeared for the sworn statement or communicated with counsel for the Administrator to reschedule her sworn statement.

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

  1. failure to respond to a lawful demand for information from a disciplinary authority by failing to appear for a sworn statement on September 12, 2013, in violation of Rule 8.1(b) of the Illinois Rules of Professional Conduct.

WHEREFORE, the Administrator respectfully 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.

Alicia F. Duncan
Counsel for Administrator
One Prudential Plaza
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Facsimile: (312) 565-2320

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Counsel for the Administrator