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. 2015PR00007

FILED --- January 30, 2015

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Gina M. Abbatemarco, pursuant to Supreme Court Rule 753(b), complains of Respondent, David Alan Novoselsky, who was licensed to practice law in Illinois on October 29, 1973, and alleges that Respondent has engaged in the following conduct which subjects Respondent to discipline pursuant to Supreme Court Rule 770: 

BACKGROUND COMMON TO COUNTS I-IV

1. In 2002, Claudia Zvunca ("Claudia") was traveling with her seven-year-old daughter, Cristina Zvunca ("Cristina"), on a Greyhound bus back to Illinois from Las Vegas. The bus stopped for gas at a rest stop in Colorado, and Claudia and Cristina left the bus. Later, when Claudia saw the bus pulling away, she began running after the bus holding Cristina's hand to try and stop it from leaving them at the rest stop. As she ran, Claudia was knocked down by the bus tire and crushed beneath the 37,000-pound bus. A bystander swept Cristina out of the way of the bus as she watched her mother die.

2. At the time of her death, Claudia was married to Tiberu Klein ("Klein"), who was Cristina's stepfather. Claudia was also survived by her parents, Maria and Vasile Zvunca ("the grandparents"), who were living in Romania at the time of Claudia's death.

3. Following Claudia's death, Klein hired the law firm of Cogan, McNabola & Dolan ("Cogan firm") in February 2003 to prosecute a wrongful death claim against Greyhound and other defendants. In November 2003, Klein filed a petition in the probate division of the Circuit Court of Cook County to appoint an independent administrator for Claudia's estate in Cook County, where Claudia had resided (In Re the Estate of Claudia Zvunca, case number 03 P 8718 ("Claudia's estate case")). That petition requested that Greg Marshall, a paralegal in the Cogan firm, be appointed to serve as independent administrator of Claudia's estate and was granted by the court.

4. On or about January 15, 2004, the Cogan firm filed a wrongful death case against Greyhound, Motor Coach Industries and the driver of the bus. The matter was docketed as Greg Marshall, Estate of Claudia Zvunca, and Cristina Zvunca v. Motor Coach Industries International, Inc., Greyhound Lines, Inc. and Wesley Jay Tatum, Cook County case number 04 L 000497 ("the first wrongful death case"). In or about April 2004, the Cogan firm withdrew from Claudia's estate case and the first wrongful death case. Klein then hired the law firm of Clancy & Stevens to represent Marshall, who continued to serve as court-appointed independent administrator of Claudia's estate in the first wrongful death case. Jeanine Stevens ("Stevens") was the attorney from Clancy & Stevens who handled that case. In May 2004, Stevens voluntarily dismissed the first wrongful death case.

5. On or about September 14, 2004, Stevens refiled the wrongful death case against Greyhound and other defendants. That case was captioned Greg Marshall, Administrator of the Estate of Claudia Zvunca, deceased, and Cristina Zvunca, a minor by Paul Brent, as next friend v. Motor Coach Industries International, Inc., Greyhound Lines, Inc. and Wesley Jay Tatum, Cook County case number 04 L 10431 ("the second wrongful death case).

6. On May 13, 2005, the Honorable James Kennedy removed Greg Marshall as independent administrator of Claudia's estate and appointed attorney F. John Cushing as the independent administrator of Claudia's estate. On May 12, 2005, the Honorable Susan Zwick appointed Marina Ammendola ("Ammendola") as Cristina's guardian ad litem in the second wrongful death case.

7. On May 19, 2005, Stevens filed a motion to amend the complaint to reflect the appointments of Cushing and Ammendola. Stevens' motion was granted, and the second wrongful death case was thereafter recaptioned as F. John Cushing, Administrator of the Estate of Claudia Zvunca, deceased, and Cristina Zvunca, a minor by Marina E. Ammendola, as guardian ad litem v. Motor Coach Industries International, Inc., Greyhound Lines, Inc. and Wesley Jay Tatum. The Cook County docket number remained 04 L 10431.

8. In August 2005, Cushing, as administrator of Claudia's estate, hired the law firm of Clancy & Stevens to continue to represent Claudia's estate in the second wrongful death case. In September 2005, pursuant to a motion filed by Klein, the probate court changed Cushing's status from independent administrator to a supervised administrator.

9. Between September 2005 and June 2006, the grandparents, who continued to reside in Romania, allowed Cristina to remain under Stevens' care and custody so that Cristina could attend school in Illinois.

10. Sometime in 2006-2007, Klein and the grandparents became dissatisfied with Cushing's, Stevens' and Ammendola's involvement in the second wrongful death case.

11. Between September 11, 2007, and May 2008, Judge Zwick made at least two requests that Cristina submit to a current mental health evaluation to assist the court in determining whether Cristina should give a deposition in the second wrongful death case. During this time, Klein and the grandparents began resisting Stevens' and Ammendola's efforts to have Cristina evaluated by a mental health professional, including failing to bring Cristina to two scheduled appointments with a pediatric psychiatrist. Klein and the grandparents also attempted to terminate the representation of Stevens and Ammendola and the administration of Cushing (including filing, in Claudia's estate case, a petition to remove Cushing as administrator of Claudia's estate, which was later denied). Stevens and Ammendola did not agree to Klein and the grandparents' requests that they withdraw from involvement in the second wrongful death case, because none of them had been retained by Klein or the grandparents: Ammendola had been appointed by the court, Stevens had been hired by Cushing as attorney for Claudia's estate, and Cushing had been appointed administrator by the court in Claudia's estate case. Further, Cushing did not represent, as an attorney, Cristina, Claudia's estate, Klein or the grandparents.

12. In or about November 2007, Klein filed a pro se petition for guardian of Cristina's person in the probate division of the Circuit Court of Cook County. The matter was docketed as In re the Estate of Cristina Zvunca, case number 07 P 7929 ("the guardianship case"). In that petition, Klein sought to be appointed Cristina's guardian.

13. In or about February 2008, Respondent agreed with Klein and the grandparents to represent them and Cristina in matters related to the guardianship case and their claims related to Claudia Zvunca's death. On or about March 27, 2008, Respondent filed an appearance in the guardianship case.

14. Between March 2008 and July 2008, Respondent represented Klein in Klein's attempt to be appointed Cristina's guardian in the guardianship case. Ammendola opposed Klein's efforts to be appointed Cristina's guardian.

15. On or about April 14, 2008, Respondent filed a motion to intervene as a matter of right in the second wrongful death case. In his motion, he averred that he was representing on Klein and the grandparents. On May 6, 2008, Respondent filed two motions, one for substitution as a matter of right, and one for cause, seeking to remove Judge Zwick from presiding over the second wrongful death case.

16. On or about June 5, 2008, Judge Zwick denied Respondent's motion to intervene and ruled that the substitution of judge motions were moot given her ruling on the motion to intervene. Judge Zwick denied the motion to intervene after determining that the estate had been aggressively represented in the litigation, that Klein's and Cristina's interests were potentially conflicting and because discovery had been concluded (but for Cristina's deposition) and the matter was ready for trial, therefore, allowing Klein to intervene might prejudice the original parties. Judge Zwick also found that the grandparents were strangers to the lawsuit and that the guardian ad litem had been adequately protecting Cristina's rights in the lawsuit.

17. On that same date, Judge Zwick ordered that Cristina be evaluated by a pediatric psychiatrist. Respondent, on behalf of Klein and the grandparents, later opposed Ammendola's efforts to comply with Judge Zwick's June 5, 2008 order to have Cristina evaluated by a pediatric psychiatrist, by stating in a letter to Ammendola that she could not speak with Cristina, that she could not physically take control of Cristina and that neither she nor Judge Zwick could order that Cristina be taken anywhere other than by requesting that the personal guardian do so.

18. Between May 2008 and July 2008, during the course of hearings in the guardianship case, the Honorable Kathleen McGury appointed Leonard Malkin ("Malkin") as guardian ad litem for Cristina in the guardianship case. In July 2008, Malkin interviewed Cristina, Klein and the grandparents to determine if Cristina was being manipulated by Klein or the grandparents. At this time, Judge McGury also spoke with Cristina in camera to discuss Cristina's wishes regarding the appointment of a guardian for her person. At no time did Judge McGury find or did Malkin report that Cristina, Klein or the grandparents had alleged that Stevens had physically or emotionally abused Cristina.

19. In July 2008 Malkin filed his report to the court regarding interviews he conducted of Cristina, Klein and the grandparents. The report recited that Cristina (who was 14 at the time) expressed her wish that Klein be appointed to serve as her guardian and that she not be required to submit to a mental health evaluation, as proposed by Ammendola (who was still Cristina's guardian ad litem in the second wrongful death case). During Judge McGury's interview of her, Cristina reiterated the same wishes as she had expressed to Malkin, i.e, that Klein be appointed her guardian and that she not be required to submit to a mental health evaluation.

20. During her July 2008 interview with Malkin, Cristina also referred to the time in 2005-2006 when Stevens was her temporary custodian, stating that she did not like living with Stevens, that she had been left alone until 8:00 p.m., fed what she considered to be junk food, and that she did not like Stevens. Cristina reiterated those complaints about Stevens' care during her in camera interview with Judge McGury. Respondent knew of Cristina's comments about Stevens to Judge McGury and Malkin, because they were discussed in court hearings during this time, and because he received a copy of Malkin's report.

21. On or about July 18, 2008, Judge McGury entered an order in the guardianship case appointing Klein as guardian of Cristina's person. On that same date, Respondent filed a second motion to intervene as a matter of right in the second wrongful death case on behalf of Cristina, Klein and the grandparents, which was denied by Judge Elrod. Shortly thereafter, Judge Elrod denied Respondent's previously-filed second motion for substitution of Judge Zwick for cause and reassigned the matter back to Judge Zwick.

22. On or about July 24, 2008, Judge Zwick denied a previously-filed motion by Greyhound to disqualify Stevens from further representation in the second wrongful death case.

23. On or about July 28, 2008, the grandparents returned to their home in Romania and took Cristina with them to live. On or about July 31, 2008, Respondent filed, at Klein's direction, his substitute appearance as counsel for Cristina in the second wrongful death case. On or about August 12, 2008, Respondent then filed a motion to remove Ammendola as Cristina's guardian ad litem in the second wrongful death case.

COUNT I
(Filing and maintaining frivolous litigation in federal court, re-filing frivolous claims and pursuing barred claims in state court in the Zvunca matter)

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

25. On or about August 8, 2008, while the second wrongful death, Claudia's estate and Cristina's guardianship cases were pending in the Circuit Court of Cook County, Respondent filed a complaint on behalf of the grandparents, as Cristina's next friend, in the United States District Court for the Northern District of Illinois. The matter was docketed as Zvunca et al. v. Motor Coach Industries International, Inc., Greyhound Lines, Inc., Jeanine Stevens, Marina Ammendola and F. John Cushing, case number 1:08-cv-04507 ("federal malpractice case"). Respondent asserted in the complaint that the basis for federal court jurisdiction was diversity of citizenship, because the grandparents were Romanian citizens.

26. In counts three and four of the federal complaint, Respondent alleged fraud and legal malpractice against Cushing, Stevens, Ammendola and the law firm of Clancy & Stevens. Respondent based his legal malpractice and fraud claims on the above-mentioned attorneys' refusal to withdraw upon being terminated by the grandparents and Cristina, as described in paragraph 11, above.

27. Respondent's statements in counts three and four of the complaint, referred to in paragraph 26, above were false, lacked any factual basis and had no substantial purpose other than to embarrass, delay, or burden Stevens, Ammendola and Cushing. At the time he filed the complaint, Respondent knew that Cushing, who was the administrator of Claudia's estate, had not represented the grandparents and/or Cristina as their attorney. Respondent also knew, at the time of filing the complaint, that Stevens had been appointed by the court to represent Claudia's estate and that Ammendola had been appointed by the court as guardian ad litem for Cristina. Respondent knew that Stevens could only be removed by an order by the judge in Claudia's estate case, that Ammendola could only be removed by an order by the judge in the second wrongful death case, and that Cushing could only be removed as administrator by an order issued by the judge in Claudia's estate case.

28. In count five of the complaint, Respondent alleged that Stevens had fraudently induced the grandparents to give Stevens temporary custody of Cristina in 2005. Respondent asserted a claim of intentional infliction of emotional distress against Stevens by further alleging that Stevens had been "physically and emotionally abusive to the child, treated her harshly, abandoned her for long periods of times, and treated her with physical disdain by providing her with inadequate and improper food and a complete and utter lack of care. As a result of this virtually [sic] kidnapping, and explicit and intentional emotional and physical abuse of the child, Cristina Zvunca has suffered great emotional distress and has been permanently damaged by her experience under the control and custody of Ms. Stevens."

29. Respondent's statements concerning Stevens in count five of the complaint, referred to in paragraph 28, above lacked any factual basis and had no substantial purpose other than to embarrass, delay, or burden Stevens because Respondent had received no information at the time he filed the complaint to support his claims that Stevens had physically abused Cristina, that she had "provided her with complete and utter lack of care", that Stevens had "virtually kidnapped" Cristina or that Cristina had been "permanently damaged by her experience under the control and custody of Ms. Stevens."

30. Respondent filed the complaint containing legal malpractice claims and abuse allegations in the federal malpractice case because he had been unsuccessful at that point in convincing Judge Zwick to remove Stevens from representation of Claudia's estate in the second wrongful death case, to allow Respondent's clients to intervene in the second wrongful death case and to abandon efforts to have Cristina submit to an evaluation.

31. Respondent filed the complaint containing legal malpractice claims and abuse allegations in the federal malpractice case with the express purpose of creating a conflict of interest between the grandparents and/or Cristina and Cushing, Stevens and Ammendola, so as to force the removal or withdrawal of Stevens, Cushing and Ammendola from the second wrongful death case. Respondent had no basis for doing so that was not frivolous. Respondent also intended his statements in the complaint to embarrass, delay, or burden Stevens, Ammendola and Cushing so that they would be forced to seek removal by the state court from the second wrongful death case.

32. Between August 2008 and February 2009, Cushing, Ammendola and Stevens filed various motions to dismiss the complaint in the federal malpractice case.

33. On or about February 26, 2009, the Honorable Harry D. Leinenweber issued a memorandum opinion and order dismissing without prejudice all legal malpractice and fraud claims against Cushing, Ammendola and Stevens (as described in paragraph 26, above) based on what Judge Leinenweber determined to be Respondent's failure to state a claim upon which relief could be granted, but retaining the purported claim of intentional infliction of emotional distress by Stevens on Cristina.

34. On or about March 6, 2009, Respondent filed a second amended complaint in the federal malpractice case, reasserting the same claims of legal malpractice, fraud and intentional infliction of emotional distress against Stevens and her law firm as had been contained in the original malpractice complaint. Respondent did not allege any new or additional facts in the second amended complaint than had been contained in the previous filing found by Judge Leinenweber to be insufficient to state a claim upon which relief could be granted.

35. Respondent filed the second amended complaint containing legal malpractice claims and abuse allegations in the federal malpractice case because he had been unsuccessful at that point in convincing Judge Zwick to remove Stevens from representation of Claudia's estate in the second wrongful death case, to allow Respondent's clients to intervene in the second wrongful death case and to abandon efforts to have Cristina submit to an evaluation.

36. Respondent filed the second amended complaint with the express purpose of creating a conflict of interest between the grandparents and/or Cristina and Stevens, so as to force the removal or withdrawal of Stevens from the second wrongful death case. Respondent had no basis for doing so that was not frivolous. Respondent also intended his statements in the second amended complaint to embarrass, delay, or burden Stevens so that she would seek removal by the court from the second wrongful death case.

37. On or about June 4, 2009, Judge Leinenweber issued a memorandum opinion and order dismissing all counts of the second amended complaint in the federal malpractice case against Stevens and her firm, except for count four, which alleged intentional infliction of emotional distress of Cristina by Stevens. In his opinion, Judge Leinenweber dismissed the malpractice claims because the attorneys had been employed by the court-appointed administrator of Claudia's estate and the court-appointed guardian ad litem for Cristina, that they could only be discharged by the circuit court and that their "failure to withdraw in and of itself cannot constitute malpractice." Judge Leinenweber also found that the malpractice claims were premature because Respondent had not alleged any monetary loss or adverse judgment, settlement or dismissal. Further, Judge Leinenweber dismissed the fraud claims against Stevens and her law firm because he found that the circuit court had to determine if the appointments of the administrator and guardian ad litem had been procured by fraud, since that court made the appointments. Respondent received a copy of Judge Leinenweber's June 4, 2009 memorandum and order shortly after it was filed.

38. On June 1, 2009, three days before the dismissal of the federal malpractice allegations, but after Cushing, Ammendola and Stevens had filed motions to dismiss, Respondent filed a complaint alleging malpractice, fraud and intentional infliction of emotional distress against Cushing, Stevens and Ammendola in the Circuit Court of Cook County on behalf of Klein and Cristina's estate. The matter was docketed as Estate of Cristina Zvunca, Tiberiu Klein, et al. v. Cushing, Stevens and Ammendola, case number 09 L 6397 ("the 2009 state case").

39. Sometime between September and October 2009, Klein and the grandparents became dissatisfied with Respondent's services and terminated him as counsel for Klein, Cristina and the grandparents.

40. On or about September 29, 2009, Respondent filed a first amended complaint in the 2009 state case.

41. On or about October 8, 2009 Respondent filed a motion to withdraw in the federal malpractice case, which the court granted.

42. On or about October 22, 2009, Judge Leinenweber dismissed the federal malpractice case for want of prosecution when no new attorney appeared on behalf of the grandparents and Cristina. At the time that Judge Leinenweber dismissed the federal case, the findings and dismissal by the court constituted an adjudication on the merits for purposes of res judicata.

43. On or about January 21, 2010, Respondent filed a third amended complaint in the 2009 state case.

44. Respondent's allegations in the complaint, first amended complaint and third amended complaint that he filed in the 2009 state case against Cushing, sounding in malpractice and fraud, were the same as those Respondent made in the federal malpractice case described in paragraph 26, above. At the time Respondent pled the legal malpractice and fraud allegations in the complaint, first amended and third amended complaints, if not before, Respondent knew that Cushing did not represent anyone as an attorney in the second wrongful death case or Claudia's estate case, that the federal court had dismissed the malpractice and fraud allegations on June 4, 2009, because Respondent had failed to state a claim under the legal theories alleged, that the malpractice claims were premature because Respondent had not alleged any monetary loss or adverse judgment, settlement or dismissal and that the federal court had held that allegations of malpractice based on an alleged failure to withdraw were insufficient, as Cushing's and Steven's removal had to be ordered by the circuit court.

45. Respondent's allegations in the complaint, first amended complaint and third amended complaint against Stevens sounding in legal malpractice and fraud, based on her alleged failure to withdraw when discharged by the grandparents, were the same as those that Respondent made in the federal court case described in paragraphs 26 and 34, above. At the time Respondent pled the legal malpractice and fraud allegations in the first amended and third amended complaints, if not before, Respondent knew that the federal court had dismissed those same allegations on June 4, 2009, because they failed to state a claim under the legal theories alleged, and that the federal court had determined that allegations of malpractice based on Steven's alleged failure to withdraw were insufficient as her discharge was required to be requested by the administrator and guardian ad litem, and ordered by the court that had appointed them.

46. After the federal court dismissed the federal case for want of prosecution, Respondent continued (by filing pleadings, including the third amended complaint) to assert the same claims in the 2009 state case that had been previously adjudicated by the federal court, although those claims were barred by res judicata.

47. 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, with no basis for doing so that is not frivolous, by conduct including, asserting fraud and malpractice claims against Cushing, Stevens, and Ammendola in the federal case, then asserting the same claims in the state case against Stevens and Cushing in the same manner as he had in the federal litigation after being told by the federal court that he had failed to state a claim and asserting claims that had been previously adjudicated in the federal litigation to create a conflict of interest so that Respondent could have the attorneys removed from the second wrongful death case and he could take control of that case and obtain professional fees, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (1990);

  2. making statements of material fact or law to a tribunal which the lawyer knows are false, by conduct including stating that the attorneys failed to withdraw upon termination by the grandparents and Cristina, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (1990);

  3. using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person, by asserting fraud and malpractice claims against Cushing, Stevens, and Ammendola in the federal case, making the same allegations in the same manner in state court that had previously been dismissed in the federal court litigation, to create a conflict of interest to have attorneys removed from the state court litigation and by making allegations that had no factual basis by stating that Stevens had physically abused, virtually kidnapped and provided no care to Cristina, in violation of Rule 4.4 of the Illinois Rules of Professional Conduct (1990);

  4. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including stating that the attorneys failed to withdraw upon termination by the grandparents and Cristina, and by stating that Stevens had physically abused, virtually kidnapped and provided no care to Cristina, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990); and

  5. conduct that is prejudicial to the administration of justice, by conduct including filing and attempting to maintain frivolous litigation, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990).

COUNT II
(Failure to investigate claims in third amended complaint)

48. The Administrator realleges paragraphs one through 46, above.

49. On or about May 7, 2009, during a court hearing in the guardianship case, Respondent informed Judge McGury that he had received information from Cristina and/or Klein to the effect that Cristina had alleged she had been physically or sexually abused by Stevens when she lived with Stevens.

50. At no time did Respondent take any steps to investigate Cristina's purported claims, such as contacting the Illinois Department of Children and Family Services to request an investigation, contacting law enforcement authorities, or having Cristina evaluated by a mental health professional or expert.

51. Respondent did not allege in the June 1, 2009 complaint or September 29, 2009 first amended complaint that he filed in the 2009 state case that Cristina had been physically and sexually abused by Stevens.

52. In September 2009, Klein and the grandparents became dissatisfied with Respondent's services and terminated Respondent's representation of Klein, Cristina and the grandparents. During that time, Respondent also became aware, at least through discussions in the court proceedings in the second wrongful death case, that Cristina no longer wished to have Respondent represent her interests.

53. On or about October 6, 2009, Klein, in his capacity as guardian of Cristina's estate, filed in the 2009 state case a pro se emergency motion, in which he raised issues about Respondent's representation of the estate and alleged that he had not authorized the filing of the 2009 state case.

54. By at least October 6, 2009, Respondent was aware that both Klein and Cristina no longer wanted him to represent them in the 2009 state case.

55. Sometime between September 2009 and December 11, 2009, Respondent approached M.B. Financial, N.A. (‘the bank") about serving as the guardian of Cristina's finances in the second wrongful death case. During that time, representatives of the bank agreed to serve as guardian of Cristina's finances, and also that Respondent would represent M.B. Financial, N.A., in it's anticipated capacity as that guardian, in the second wrongful death case and the 2009 state case.

56. On or about December 11, 2009, the Honorable Daniel M. Locallo appointed the bank to serve as the guardian of Cristina's finances in the second wrongful death case.

57. On or about January 21, 2010, Respondent filed a third amended complaint in the 2009 state case. The amendments included, among other things, the addition of M. B. Financial as a plaintiff in the 2009 state court case.

58. Respondent sought appointment of the bank to act as guardian of Cristina's finances after he became aware that Cristina, Klein and the grandparents wished to terminate him as their attorney, to maintain his involvement in the second wrongful death case and the 2009 state case. Respondent had previously represented the bank in unrelated matters.

59. In the third amended complaint that Respondent filed in the 2009 state case, Respondent re-alleged the intentional infliction of emotional distress claim against Stevens that he had asserted in the federal court litigation referred to in Count I, above. In the third amended complaint, Respondent made the following additional allegations, inter alia, that he had not previously pled in the federal litigation:

a) Stevens wanted to obtain control of Cristina and used Cristina as a "surrogate child";

b) Stevens had acted in a similar manner with other minors on other occasions in the past;

c) Stevens obtained control of Cristina to abuse her and supplement Stevens' own emotional needs;

d) Stevens threatened to place Cristina in "psychiatric confinement";

e) Cristina had been struck by Stevens and "forced to engage in unwanted physical contact" with Stevens, who "shoved and slapped" Cristina and treated her as a "personal servant."

60. Respondent's statements in the third amended complaint, referred to in paragraph 59, above lacked any factual basis and had no substantial purpose other than to embarrass, delay, or burden Stevens. At the time he filed the complaint, Respondent had not taken any steps to investigate any of the claims, such as contacting the Illinois Department of Children and Family Services to request an investigation, contacting law enforcement authorities, or having Cristina evaluated by a mental health professional or expert.

61. On or about February 16, 2010, Cristina provided a letter to the Honorable William Haddad (the judge then presiding over the 2009 state case) in which she recanted all claims of abuse against Stevens. Respondent became aware of Cristina's recantation of the allegations against Stevens on or shortly after February 16, 2010.

62. Between February 16, 2010 and July 2010, Respondent continued to prosecute the abuse allegations against Stevens in the 2009 state case by filing pleadings, although he knew that Cristina had repudiated the claims.

63. 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, with no basis for doing so that is not frivolous, by conduct including, continuing to prosecute the third amended complaint containing the allegations of abuse against Stevens for five months after he learned Cristina had repudiated the charges in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);

  2. using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person, by making allegations of abuse against Stevens without investigating those allegations, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

  3. conduct that is prejudicial to the administration of justice, by conduct including, continuing to prosecute the third amended complaint containing the allegations of abuse against Stevens for five months after he learned Cristina had repudiated the charges in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

COUNT III
(Meritless removal to federal court of state court action in Zvunca matter)

64. The Administrator realleges paragraphs one through 62, above.

65. On or about July 13, 2010, at Respondent's request, the court dismissed the 2009 state case.

66. On or about August 11, 2010, defendants Cushing, Stevens and Ammendola filed a motion requesting sanctions against Respondent under Supreme Court Rule 137, based on Respondent's conduct in filing the amended complaints in the 2009 state case without conducting a reasonable inquiry to the allegations and for an improper purpose. The matter was stayed pending appeals related to the second wrongful death case.

67. On or about February 4, 2011, Respondent filed a notice of removal of the Rule 137 proceeding in the 2009 state court case to the U.S. District Court, Northern District, Eastern Division. The matter was docketed as MB Financial, as guardian of the estate of Cristina Zvunca, minor, v. Jeanine Stevens, et al., case number 1:11-CV-00798.

68. In the notice of removal, Respondent alleged as the basis for the removal that Cristina had filed a petition to intervene and was seeking damages from Respondent, her former counsel, and for costs and attorneys fees in the 2009 state court case and that, therefore, diversity of citizenship (since Cristina resided in Romania) existed for the basis of removal. At the time of the notice of removal, Respondent knew that the judge in the 2009 state court case had not yet ruled on Cristina's petition to intervene, and that, therefore, no diversity of citizenship existed, because Cristina had not been allowed yet to intervene in the 2009 state case sanctions matter.

69. At the time Respondent filed the notice of removal, Illinois Supreme Court Rule 137(b) provided that:

"All proceedings under this rule shall be brought within the civil action in which the pleading, motion or other document referred to has been filed, and no violation or alleged violation of this rule shall give rise to a separate civil suit, but shall be considered a claim within the same civil action."

70. At the time he filed the notice of removal, Respondent knew that Rule 137(b) prohibited him from filing a civil suit separate from that giving rise to the Rule 137 sanctions motion in the 2009 state case.

71. At the time Respondent filed the notice of removal, none of the parties had consented to removal of the 2009 state case to federal court and Respondent was not a party to the 2009 state case.

72. On February 18, 2011, Cristina, through counsel, filed a motion in case number 1:11-CV-00798 to remand the matter to state court. On March 2, 2011, the court granted Cristina's motion, which Stevens had joined, as the court lacked subject matter jurisdiction because Respondent had previously dismissed the 2009 state case and there was no state court case to remove to federal court.

73. On or about March 31, 2011, Cristina and Stevens filed in case number 1:11-CV-00798 a motion for sanctions and attorneys' fees against Respondent.

74. On or about July 5, 2011, Judge Leinenweber filed a memorandum opinion and order in case number 1:11-CV-00798 remanding the case to state court and granting in part, and denying in part, Stevens' and Cristina's motions for sanctions under 28 U.S.C. section 1927 and 28 U.S.C. section 1447. Judge Leinenweber found that Respondent's attempt to remove the case had been "meritless", that Respondent had cited no case law in support of his request to remove the case from state court because none existed, and that an "objectively reasonable attorney who undertook a cursory review of case law and the facts of the case would have never attempted to remove the Rule 137 proceeding from state court." Judge Leinenweber also found that Respondent had vexatiously multiplied the proceedings and found that Respondent was personally liable to Cristina for $10,155 and to Stevens for $2,424 for fees.

75. On or about July 15, 2011, Respondent filed a notice of appeal of Judge Leinenweber's July 5, 2011 order in the United States Court of Appeals for the Seventh Circuit. The matter was docketed as MB Financial, N.A. v. Stevens, No. 11-2603.

76. On April 24, 2012, the appellate court affirmed the district court's July 15, 2011 order, finding, inter alia, that Respondent's removal was "worse than unreasonable; it was preposterous" as Respondent had not been a party to the state court action and only a party could remove a state court case to federal court, that the filing of a sanctions motion did not make Respondent a party; and that removal required consent of all defendants and the defendants had not consented to removal.

77. 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, with no basis for doing so that is not frivolous, by conduct including, improper removal to federal court of the sanctions motion in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);

  2. using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person, by improperly removing the motion for sanctions to federal court and then appealing the remand order of the federal district court, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

  3. conduct that is prejudicial to the administration of justice, by conduct including filing improper removal and appeal of the remand order of the federal district court, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

COUNT IV
(Misrepresentations to the court in Rule 137 sanctions proceedings)

78. The Administrator realleges paragraphs one through 76, above.

79. On or about December 21, 2010, Respondent filed a response to the August 11, 2010 motion for sanctions filed by Cushing, Stevens and Ammendola, referred to in paragraph 66, above. Respondent signed his December 21, 2010 response and attached an affidavit reiterating many of the factual allegations in his response. In his response and affidavit, Respondent asserted that he filed the 2009 state case and the federal malpractice case because he had been directed to do so by "a Judge of the Circuit Court" and that he was acting as "the court-appointed lawyer under instructions from the Probate Court to file these lawsuits" and "did so at the direction of a judge." In his affidavit, Respondent asserted that "Judge McGury asked me to prepare filings to be filed initially in the federal court with regard to Ms. Stevens' conduct and later before the Law Division" and that "I was given specific instructions by Judge McGury to prepare and file the lawsuits that were filed both in federal court and later before this Court. Judge McGury also instructed me to enter an order stating that these lawsuits could not be dismissed without her knowledge and consent."

80. Respondent's statements in his response and affidavit referred to in paragraph 79, above, were false. At no time had Judge McGury, nor any other Circuit Court judge, ordered Respondent to file the 2009 state case or federal malpractice case.

81. Respondent knew that the statements in his response and affidavit referred to in paragraph 79 above, were false, because he knew that neither Judge McGury, nor any other Circuit Court judge, ordered Respondent to file the 2009 state case and federal malpractice case.

82. 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, by conduct including alleging that he had been instructed by a judge to bring the 2009 state case and federal malpractice case, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);

  2. making statements of material fact or law to a tribunal which the lawyer knows are false, by conduct including stating that he had been instructed by a judge to bring the 2009 state case and federal malpractice case in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);

  3. using means in representing a client that have no substantial purpose other than to embarrass, delay or burden a third person, by conduct including alleging that he had been instructed by a judge to bring the 2009 state case and federal malpractice case, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010);

  4. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including stating that he had been instructed by a judge to bring the 2009 state case and federal malpractice case in in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010); and

  5. conduct that is prejudicial to the administration of justice, by conduct including alleging that he had been instructed by a judge to bring the 2009 state case and federal malpractice case, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

COUNT V
(Filing meritless pleadings in guardianship proceeding in Kuc matter)

83. In or about June 2008, Respondent and Dr. Eugune J. Kuc agreed that Respondent would represent Dr. Kuc in matters related to Dr. Kuc petitioning the court to be appointed guardian of his mother, Daniela Kuc. On or about June 19, 2008, Respondent filed a petition for guardianship of a disabled person's estate on behalf of Dr. Kuc in the Probate Division of the Circuit Court of Cook County. The matter was docketed as In re the Estate of Daniela Kuc, case number 2008 P 4108.

84. On or about July 18, 2008, the Honorable Maureen Connors appointed Dr. Eugene J. Kuc as plenary guardian of Daniela Kuc's estate and person.

85. On or about February 13, 2009, Respondent, or someone at his direction, filed a petition in case number 2008 P 4108 requesting that an order of protection be issued against Robert Kuc, Dr. Kuc's brother. In that petition, Dr. Kuc sought to bar Robert Kuc from contacting Daniela Kuc or appearing at her home. Judge Connors allowed the petition and entered the order of protection against Robert Kuc on February 13, 2009.

86. On or about April 1, 2009, Respondent, or someone at his direction, filed a petition for rule to show cause and request for sanctions in case number 2008 P 4108 against Robert Kuc and his attorney, Gus Santana, alleging that on March 29, 2009, Dr. Kuc had found a note on Daniela's night stand setting out Mr. Santana's office and cell phone numbers. Respondent attached to the rule to show cause phone records showing calls from Daniela's home phone to Mr. Santana's office and cell phones on March 26, 2009. Respondent requested that Mr. Santana be held in indirect criminal contempt for discussing Daniela's her guardianship with her without notifiying either Respondent or the guardian ad litem who had been appointed for Daniela. Respondent further alleged in the petition that, in the alternative, if the calls had been made by Robert Kuc from Daniela's phone, that the court find that Robert Kuc violated the February 13, 2009 order of protection.

87. At no time prior to filing the April 1, 2009 petition, did Respondent conduct any investigation into why Daniela had Mr. Santana's numbers on her night stand, whether Daniela had placed the calls herself, whether Daniela's caretaker had placed the calls, or if Mr. Santana had actually spoken with Daniela. Prior to filing the motion for sanctions, Respondent never spoke to nor attempted to contact Mr. Santana.

88. On or about May 1, 2009, Robert Kuc and Mr. Santana each filed motions to dismiss the April 1, 2009 petition. The bases of the motions to dismiss were that Respondent had not investigated the veracity of the allegations against Mr. Santana, that an indirect criminal proceeding must be brought as a petition for adjudication of criminal contempt, and that the petition for rule to show cause was not sufficient to provide the alleged contemnor due process. Mr. Santana also filed a motion seeking Supreme Court Rule 137 sanctions against the Novoselsky Law Offices.

89. On or about December 1, 2009, Respondent filed a motion for substitution of judge as a matter of right in case number 2008 P 4108. At the time Respondent filed the December 1, 2009 motion for substitution of judge, Judge Connors had been hearing substantive matters in case number 2008 P 4108, including matters related to the appointment of Dr. Kuc as plenary guardian and the order of protection entered against Robert Kuc.

90. On December 2, 2009, Respondent filed a motion for substitution of judge for cause and an emergency petition to dismiss Mr. Santana's motion for Rule 137 sanctions.

91. On or about September 2, 2010, Mr. Santana filed additional motions for Rule 137 sanctions against the Novoselsky Law Offices, alleging that the motion for substitution of judge as a matter of right was untimely, that the motion for substitution of judge for cause did not allege specific conduct by the trial judge showing bias or prejudice, and that Respondent had not complied with section 2-1001(a)(3)(ii) of the Code of Civil Procedure, which provided that:

"Every application for substitution of judge for cause shall be made by petition, setting forth the specific cause for substitution and praying a substitution of judge. The petition shall be verified by the affidavit of the applicant."

92. On or about October 22, 2010, Judge Connors entered an order finding that Respondent had violated Rule 137 because he "failed to conduct a reasonable inquiry into the facts of the pleading filed on April 1, 2009 in the above titled action seeking a criminal contempt citation against Attorney Gustavo Santana that the above mentioned pleading when filed was not well-grounded in fact and that the filing of said pleading along with conduct on the part of the associate, James Ayers, Sr. and the principal, David Novoselsky in pursuing said action constitutes a violation of Supreme Court Rule 137." Judge Connors entered judgment against Novoselsky Law Offices in favor of Mr. Santana and his attorney, David Sotomayor, in the amount of $9,038.50.

93. In her October 22, 2010 order, Judge Connors further found that: 1) the December 1, 2009 motion for substitution of judge as a matter of right was untimely, was not well-grounded in fact or law and had no good-faith basis, and violated Rule 137; 2) the December 2, 2009 motion to dismiss Mr. Santana's May 1, 2009 motion for sanctions was not well-grounded in fact or law and had no good-faith basis, and violated Rule 137; and 3) that the December 2, 2009 motion for substitution of judge for cause had no good-faith basis, was not well-grounded in fact or law in the absence of the requisite affidavit, and constituted a violation of Rule 137. Judge Connors entered judgment against Respondent individually and d/b/a Novoselsky Law Offices, in favor of Mr. Santana and his attorney, David Sotomayor, in the amount of $8,013.

94. 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, with no basis for doing so that is not frivolous, by conduct including, filing a motion for substitution of judge as of right which was untimely, and filing a motion for substitution of judge for cause which had no good faith basis and did not attach the required affidavit, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010);

  2. using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person, by making allegations that Santana spoke with Daniela about her guardianship without investigating those allegations, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

  3. conduct that is prejudicial to the administration of justice, by conduct including making allegations of prejudice and bias against Judge Connors that were not made in good faith or well grounded in law or fact, and making allegations that Santana spoke with Daniela about her guardianship without investigating those allegations in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

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

Gina M. Abbatemarco
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:  Gina M. Abbatemarco