BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

Robert Alan Habib,

Attorney-Respondent,

No. 3128545.

Commission No. 2014PR00156

FILED --- December 12, 2014

 

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Marcia Topper Wolf, pursuant to Supreme Court rule 753(b), complains of Respondent Robert Alan Habib ("Respondent"), who was licensed to practice law in Illinois on October 29, 1980, and alleges that Respondent has engaged in the following misconduct, which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

(Failure to Provide Competent Representation and Communication and Dishonesty)

1. In or about January, 2007, Respondent and Dan McCauly (" McCauly") agreed that Respondent would represent McCauly and his bakery, "A Taste Of Heaven," in an employment discrimination complaint filed by employee Maria Flores ("Flores") with the City of Chicago Commission on Human Relations ("CCHR" or "Commission").

2. Between January 2007 and October 2011, Respondent periodically requested, and McCauley paid, fees in the total amount of $46,000 for his alleged work on the CCHR matter.

3. On July 10, 2008, the CCHR issued an Order finding substantial evidence of a violation of the Chicago Human Rights Ordinance and scheduling a settlement conference on December 4, 2008, in an attempt to resolve the claim.

4. Under CCHR regulations, settlement conferences are encouraged but not required. (CCHR Reg. 230.100). However, once they are scheduled the parties are subject to sanctions if they do not attend. (CCHR Reg. 230.110).

5. On December 3, 2008, at 4:30 p.m., Respondent filed an emergency motion with the Commission to reschedule the conference. In the motion, Respondent alleged that McCauley had an unexpected work emergency and was unable to attend.

6. The Commission's staff did not receive the motion until one half hour before the conference was set to begin. Respondent appeared, but Flores and her counsel did not appear and the conference did not proceed.

7. On December 10, 2008, a formal Notice of Potential Sanctions was issued to both parties based on the time spent by the Commission's staff preparing for the conference and having had to pay a mediator.

8. On December 12, 2008, Flores' attorney filed a response to the Notice of Potential Sanction, wherein she explained that she did not appear because she received a voicemail from Respondent on December 3, 2008 at 4:45, stating that he had continued the settlement conference based on McCauley's unavailability. As a result she believed the Commission had granted the motion. The message Respondent left for Flores' attorney was false because Respondent's motion had not yet been granted. Respondent knew that his statement in the phone message was false because he knew his motion had not been granted.

9. Respondent also made misrepresentations regarding McCauley's availability. On December 3, 2008, in his emergency motion to continue the settlement conference, Respondent stated that McCauley had an unexpected work emergency. On December 30, 2008, in his response to the Commission's Notice of Potential Sanctions, Respondent stated that he had failed to inform McCauley of the conference until two days before it was scheduled and McCauley could not get anyone to cover for him at work. Both of Respondent's statements regarding McCauley's availability were false, because McCauly did not even know about the scheduled settlement conference. Respondent knew that his statements about McCauley's availability were false at the time he made them because Respondent had never advised McCauley of the settlement conference.

10. On January 29, 2009, the Commission entered an Order Imposing Sanctions against Respondent in the amount of $250 as a result of his procedural noncompliance, resulting in a failed settlement conference and the diversion of Commission resources, including the time the staff spent preparing for the hearing and the payment of a contractual mediator fee.

11. At no time after the January 29, 2009 Order was issued did Respondent send McCauley a copy of the sanction order, nor did he advise McCauley that the Commission had issued a written order fining Respondent $250 as a sanction for the failed settlement conference.

12. On March 19, 2009, the Commission issued an Order appointing a hearing officer and commencing the hearing process, setting May 7, 2009 as the date for a required prehearing conference.

13. At no time between March 19, 2009 and May 7, 2009, did Respondent forward the Order setting the prehearing conference to McCauley or otherwise inform McCauley of the prehearing conference.

14. Pursuant to a CCHR regulation, attendance at the prehearing conference is mandatory and failure to attend can result in sanctions, including entry of a default judgment on liability. (CCHR Regs. 235.310(d), 240.120).

15. On May 7, 2009, neither Respondent nor McCauley appeared at the prehearing conference and an Order of Default was entered on May 15, 2009, as to liability, with the allegations of the complaint deemed to have been admitted and any defenses considered waived. The default order stated that a motion to vacate or modify the order could be filed and the order of default could be vacated, if the motion "establish[ed] good cause for the noncompliance which formed the basis for the sanctions imposed."

16. On May 20, 2009, Respondent filed a motion to vacate the order of default on behalf of A Taste of Heaven and not McCauley. The basis of Respondent's motion was his failure to docket the prehearing date, resulting in his failure to attend the prehearing.

17. On July 6, 2009, the Administrative Hearing Officer entered an order denying Respondent's motion to vacate the order of default, stating that Respondent's failure to docket the prehearing conference "does not constitute good cause." The July 6, 2009 order also stated that since Respondent had not filed any motion to vacate on behalf of McCauley, the order of default also remained as to him.

18. At no time after May 7, 2009, did Respondent advise McCauley that an order of default had been entered because of his failure to appear at the prehearing conference, nor did he ever advise McCauley that his motion to vacate the order of default was unsuccessful and they would not be able to present any evidence at hearing, other than regarding damages.

19. On December 3, 2009, the Hearing Officer issued an order setting the Administrative Hearing for March 3, 2010. Respondent appeared "under protest" and argued that the Hearing Officer's rulings on the default denied McCauley and A Taste of Heaven due process. At no time did Respondent advise McCauley of the hearing and Respondent presented no evidence or witnesses with regard to damages at the hearing.

20. On or about August 18, 2010, the Commission entered a Final Order on Liability and Relief, finding that Flores had established that her termination had been motivated by her protected classes (age and race) and assessed damages for lost wages in the amount of $6,750, $20,000 for emotional distress, and $25,000 in punitive damages, in addition to a fine of $250 against McCauley and a $250 fine against A Taste of Heaven. At no time after August 18, 2010 did Respondent provide McCauley with a copy of the decision, nor did he even advise McCauley of the decision on liability and damages. Instead, in or about August 2010, Respondent advised McCauley that "things hadn't gone well in court".

21. On October 8, 2010, Flores' attorneys filed a petition for attorney fees. Respondent did not file a written response or in any way contest the fee petition. On January 19, 2011, the Commission entered a final order on attorney fees and costs, awarding attorney fees of almost $70,000 to Flores' attorneys.

22. On February 22, 2011, Respondent filed a Complaint for Writ of Certiorari in the Circuit Court of Cook County, Chancery Division, Taste of Heaven, et al. v. CCHR, et al., 11 CH 06655. The Complaint sought administrative review of the final orders issued by the Commission, and to quash the record of proceedings.

23. On September 23, 2011, the Circuit Court entered an order, confirming the Commission's final order, finding that McCauley's and A Taste of Heaven's due process rights were not violated and further finding that there was sufficient evidence presented at the hearing to support the Commission's order. Respondent did not forward the complaint or the Circuit Court order to McCauley, but told him he was going to appeal.

24. On October 18, 2011, Respondent filed a Notice of Appeal of the Chancery Court's decision denying the Plaintiffs' Petition for Writ of Certiorari in the Appellate Court of Illinois, First Judicial District, Second Division. The appeal was docketed as Taste of Heaven, et al. v. CCHR et al., No. 1-11-3125.

25. On August 28, 2012 the Appellate Court entered an Order confirming the Commission's order. (Taste of Heaven, et al. v. CCHR and Flores, 2012 IL App. 1st 11 113125- (August 28, 2012).

26. At no time did Respondent give McCauley a copy of the Appellate Court Order, nor did he advise McCauley of the Appellate Court Order, which Order described in detail the procedural history of the case, as described above.

27. On or about September 25, 2012, Respondent went to the bakery and told McCauley that they had had been treated unfairly by the Commission, the Circuit Court and again by the Appellate Court. Respondent did not explain that there were no further appeals and did not explain the basis of the order, as set forth in the written decision. Respondent's failure to explain to McCauley that there were no further appeals and the basis for the order was false and misleading because Respondent knew that the Appellate Court Order outlined in detail his improper handling of the matter.

28. On October 10, 2012, McCauley's sister sent him an email saying how "sorry she was regarding [his] case." She advised him of the Appellate Court Order, which he then reviewed. The Order included, inter alia, the procedural history of the case, including Respondent's failure to attend the settlement conference as the basis for the default order, Respondent's lies about McCauley's absence from the settlement conference, and Respondent's failure to present evidence on damages at the hearing.

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

a. failing to provide competent representation to a client, in violation of Rule 1.1 of the Illinois Rules of Professional Conduct (2010), by conduct including Respondent's failure to participate in a scheduled settlement conference, failure to attend a scheduled prehearing conference and failure to present evidence regarding damages at the CCHR hearing;

b. failing to keep the client reasonably informed about the status of the matter, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010), by conduct including Respondent's failure to advise McCauley of the sanction imposed as a result of Respondent's actions regarding the settlement conference, Respondent's failure to advise McCauley of Respondent's failure to attend the prehearing conference and the resulting default order and by failing to inform McCauley of the scheduled prehearing conference and the CCHR hearing; and

c. conduct involving dishonesty, deceit, or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010), by conduct including his failure to advise McCauley of Respondent's failure to attend the prehearing conference and the resulting default order, by making affirmative misstatements to McCauley, and by failing to inform McCauley of the scheduled prehearing conference and the CCHR hearing and by failing to forward copies of the orders entered by the CCHR which detailed Respondent's responsibility for the adverse rulings.

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.

Marcia Topper Wolf
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite, 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Maricia Topper Wolf