BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

MICHAEL JEROME MOORE,

Attorney-Respondent,

No. 6194325.

Commission No. 2015PR00076

FILED --- August 26, 2015

 

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Peter L. Apostol, pursuant to Supreme Court Rule 753(b), complains of Respondent, Michael Jerome Moore, who was licensed to practice law in the State of Illinois on November 5, 1986, and alleges that Respondent has engaged in the following conduct which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

COUNT I
(Changing fee agreement and harassing communications - Buchanan)

1. In or about December 2012, Respondent and Leon Buchanan, Jr. ("Buchanan") agreed that Respondent would represent Buchanan's son, Leon Buchanan, III ("Leon"), in matters related to aggravated battery charges pending against Leon in the Circuit Court of Cook County as case number 12CR0848701. Respondent and Buchanan further agreed that Respondent would receive a flat fee of $3,500 as Respondent's legal fee for representing Leon in case number 12CR0848701. Respondent and Buchanan agreed that Buchanan would collect the $3,500 in legal fees on behalf of Leon and would provide that amount to Respondent. Thereafter, Respondent received the full $3,500 amount.

2. As a result of Respondent's attorney-client relationship with Leon, Respondent owed Leon the fiduciary duties attendant to that relationship, including, a duty to exercise the utmost good faith and fair dealing in all of his interactions with Leon and Leon's agents, a duty of undivided loyalty, a duty of care and a duty to avoid placing himself in a position where his interests would conflict with the interests of his clients.

3. As a result of his attorney-client relationship with Leon, Respondent also owed Leon and Leon's agents a duty to avoid undue influence, and to avoid taking advantage of the position of authority and trust he held, through his position as Leon's attorney.

4. In or about the summer of 2014, despite the fact that Respondent and Buchanan had previously agreed that Respondent would represent Buchanan's son, Leon, for a $3,500 flat fee (paragraph one, above), Respondent began requesting that Buchanan pay him an additional $500 in legal fees to continue representing Leon in case number 12CR0848701. As a result, Buchanan paid Respondent an additional $200 in legal fees. However, Respondent demanded that Buchanan pay him an additional $300. Respondent left Buchanan several voice mail messages, in which he made the following statements:

  1. "You are a piece of garbage. All black people are alike. You're slovenly, ignorant."

  2. "You better give me my money or your son's case is going to be delayed."

  3. "I'm sick of you, you piece of shit."

  4. "I don't know who's the biggest bitch. You or [family]. I'm going to lock you up."

  5. "Low class n-----s. I'm going to have you all locked up."

  6. "You call me with stupid shit. Wait until next court date."

  7. "You have until 5:00 on Thursday. $300, no $500 check... Or on Friday I'll withdraw. I already told the State's Attorney to writ your son over."

  8. "You are such a pussy. They are going to writ him over. I tried to tell your stupid ass. Other lawyers would charge $10,000 for this case. Start planning for another lawyer."

  9. "You're ugly, low class, ignorant. I'll finish with you when he gets off. You're demeaning your son."

  10. "Help your son. Pay. Stop delaying case."

5. At no time did Respondent advise Leon and/or Buchanan to consult with independent counsel before Buchanan paid Respondent additional legal fees over the original $3,500 flat fee agreement between Respondent and Buchanan. At no time did Respondent explain to Leon and/or Buchanan that Respondent's receipt of additional legal fees was contrary to the agreement to pay Respondent a flat legal fee and that they had no obligation to agree to pay Respondent additional legal fees.

6. At no time did Respondent explain to Leon and/or Buchanan that his interest in obtaining additional legal fees was in conflict with Leon and/or Buchanan's interest in maintaining the $3,500 flat fee agreement, nor did Respondent obtain Leon and/or Buchanan's consent after disclosure.

7. As a result of his failure to allow Leon and/or Buchanan to consult with independent counsel before accepting additional legal fees from Buchanan, Respondent exercised undue influence over Leon and/or Buchanan because of his position of trust and authority over them.

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

  1. entering into a business transaction with a client without full disclosure, by conduct including overreaching the attorney-client relationship by requesting additional legal fees over the flat fee agreement without making adequate disclosures or obtaining informed consent from his client, in violation of Rule 1.8(a) 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 leaving the voice messages for Buchanan described in paragraph four, above, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

  3. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including overreaching the attorney-client relationship by requesting additional legal fees over the flat fee agreement, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct.

COUNT II
(Harassing communications - Adler)

9. Prior to June 19, 2015, Respondent and Forine Durr ("Durr") agreed that Respondent would represent Durr in matters related to a power of attorney Durr had executed, appointing Respondent as Durr's attorney-in-fact. On June 19, 2015, Durr began living at the Lakefront Nursing and Rehabilitation Center in Chicago ("Lakefront").

10. On July 2, 2015, Durr moved out of Lakefront. Thereafter, Respondent began contacting Aharon Adler ("Adler"), the administrator of Lakefront, to determine why Lakefront had allowed Durr to leave the premises.

11. On July 6, 2015, at about 6:30 p.m., Respondent telephoned Adler and left the following voice mail message:

You know, I tried to be academic, intellectual, and community-minded and everything else with you. What you're supposed to do as a nursing home, you piece of [shoe or Jew] garbage. You put my girl out in the street and didn't give a fuck, and didn't let her come back, and know that she is mentally challenged. Are you mentally challenged, you piece of shit? Let me tell you something. There is a tort--with your stupid ass, you don't know what that isócalled violation of fiduciary capacity. And that's what you've done in this, with your stupid Jew ass. Mother-fuck you, how you fucked my girl. Okay, I'm going to sue you, a federal law-- I'll sue you, sue the fuck out of you. You should've knew better. Fiduciary capacity carries with it a responsibility of the particular concerns of the person involved. She's schizophrenic, hyper-paranoid schizophrenic, you piece of shit.

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

  1. using means in representing a client that have no substantial purpose other than to embarrass, delay, or burden a third person, by conduct including leaving the voice mail message for Adler described in paragraph 11, above, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010)

COUNT III
(Neglect of criminal appeal - State of Wisconsin v. Terrence L. Thomas)

13. On September 29, 2011, in Brown County case number 2011-CF-977, the State of Wisconsin filed a one-count information against Terrence L. Thomas ("Thomas"). The information alleged that Thomas committed the Class C felony offense of repeated sexual assault of the same child, in violation of Wis. Stat. sec. 948.025(1)(e) (2009-10), doing so as a repeat offender under Wis. Stat. sec. 939.62(1)(c) based on a prior felony conviction.

14. Prior to February 15, 2012, Respondent and Thomas agreed that Respondent would represent Thomas in case number 2011-CF-977. Respondent and Thomas did not reach a formal fee agreement, but Thomas' mother paid Respondent $1,000 in legal fees for representing Thomas. Respondent and Thomas agreed that Respondent would assist Thomas' other attorney, Andrew J. Williams ("Williams"), a Wisconsin-licensed attorney, who would also be representing Thomas at trial. The court granted Respondent, who is not licensed to practice law in Wisconsin, leave to appear pro hac vice.

15. On February 15, 2012, after a two-day trial at which Respondent and Williams represented Thomas, a jury found Thomas guilty of repeated sexual assault of the same child as charged in the information. Thereafter, the court sentenced Thomas to 12 years of imprisonment, followed by 10 years of extended supervision.

16. Prior to May 14, 2012, Respondent and Thomas agreed that Respondent would represent Thomas in an appeal of Thomas' conviction in case number 2011-CF-977. Respondent and Thomas agreed that Respondent would work with Williams in pursuing an appeal on behalf of Thomas. Respondent and Williams agreed that Respondent would handle the substantive aspects of the appeal, and Williams would act as local counsel.

17. On May 14, 2012, Respondent filed a notice of appeal on behalf of Thomas, along with a motion to appear pro hac vice in Thomas' appeal. Thereafter, the clerk of the Wisconsin Court of Appeals ("court of appeals") received the notice of appeal and assigned case number 2012AP1114-CR to the appeal.

18. On May 30, 2012, the court of appeals entered an order noting that the notice of appeal Respondent caused to be filed had not been signed by either Thomas or counsel, and Respondent's motion to appear pro hac vice had not been signed by a Wisconsin attorney. The court of appeals ordered that Thomas file a signed notice of appeal within 14 days, or face possible dismissal of the appeal. The court also ordered that Respondent's motion to appear pro hac vice was denied with leave to refile. Respondent received a copy of the May 30, 2012 order shortly thereafter.

19. At all times alleged in this count, Wis. Stat. sec. 809.25(2) required that a party filing a notice of appeal pay a filing fee of $195 at the time of filing, unless that fee is waived.

20. At all times alleged in this count, Wis. Stat. sec. 814.29 required that a petition to waive appellate filing fees contain an affidavit signed by the party claiming indigency.

21. On June 13, 2012, Respondent and Williams filed a signed notice of appeal on behalf of Thomas. However, they did not enclose a filing fee, nor did they seek a waiver of the filing fee.

22. On June 21, 2012, the court of appeals entered an order, sua sponte, extending by five days the time for receipt of the appellate filing fee. The order stated that if the filing fee was not timely received, the appeal would be dismissed. Respondent received a copy of the June 21, 2012 order shortly thereafter.

23. On June 29, 2012, Respondent filed an amended motion to appear pro hac vice and a petition to waive appellate filing fees. The petition to waive appellate filing fees did not contain an affidavit signed by Thomas.

24. On July 6, 2012, the court of appeals granted Respondent's motion to appear pro hac vice, but denied the petition to waive appellate filing fees. The court of appeals ordered Thomas to either pay the filing fee, or file the petition to waive appellate filing fees and affidavit of indigency, by July 23, 2012. Respondent received the July 6, 2012 order shortly thereafter.

25. As of August 2, 2012, Respondent had not provided the appellate filing fee to the court of appeals, nor had he filed a petition to waive appellate filing fees and affidavit of indigency signed by Thomas.

26. On August 2, 2012, the court of appeals dismissed case number 2012AP1114-CR.

27. On August 21, 2012, Respondent filed a motion for reconsideration of the order dismissing case number 2012AP1114-CR, as well as a petition to waive appellate filing fees and affidavit of indigency. However, the affidavit of indigency was not signed by Thomas.

28. On August 30, 2012, the court of appeals ordered that Respondent's motion for reconsideration of the dismissal order be held in abeyance until September 12, 2012. The order further provided that if the court did not receive a completed petition to waive appellate filing fees and affidavit of indigency signed by Thomas on or before September 12, 2012, the motion for reconsideration would then be denied. Respondent received a copy of the August 30, 2012 order shortly thereafter.

29. As of September 28, 2012, Respondent had not provided the appellate filing fee to the court of appeals, nor had he filed a petition to waive appellate filing fees and affidavit of indigency signed by Thomas.

30. On September 28, 2012, the court of appeals denied Respondent's motion for reconsideration and case number 2012AP1114-CR remained dismissed.

31. On April 9, 2013, Thomas, through new counsel, filed a petition for writ of habeas corpus, alleging that Respondent and Williams provided ineffective assistance of counsel that deprived Thomas of the right to pursue a direct appeal of his conviction.

32. On April 18, 2013, the court of appeals entered an order holding the petition for writ of habeas corpus in abeyance, and ordering both Respondent and Williams to submit a written response to the allegations in the petition within 15 days, or by May 3, 2013. Respondent received a copy of the April 18, 2013 order shortly thereafter.

33. At no time thereafter did Respondent respond to the April 18, 2013 order of the court of appeals requiring him to answer the allegations of ineffective assistance of counsel raised against him in Thomas' petition for writ of habeas corpus.

34. On May 21, 2013, the court of appeals entered an order that requested a response from the state as to whether it objected to the reinstatement of Thomas' right to appeal. The order noted that Respondent had failed to comply with the April 18, 2013 order requiring him to respond to the allegations in the petition for writ of habeas corpus. Respondent received a copy of the May 21, 2013 order shortly thereafter.

35. On July 15, 2013, with the state not objecting to the reinstatement of Thomas' right to appeal his conviction, the court of appeals entered an order granting the petition for habeus corpus and reinstating Thomas' right to appeal. Respondent received a copy of the July 15, 2013 order shortly thereafter.

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

  1. failing to provide competent representation to a client, by conduct including failing to file a completed petition for waiver of appellate fees and affidavit of indigency signed by Thomas and failing to respond to orders of the Wisconsin Court of Appeals, in violation of Rule 20:1.1 of the Wisconsin Rules of Professional Conduct; and

  2. failing to act with reasonable diligence and promptness in representing a client, by conduct including failing to file a completed petition for waiver of appellate fees and affidavit of indigency signed by Thomas and failing to respond to orders of the Wisconsin Court of Appeals, in violation of Rule 20:1.3 of the Wisconsin Rules of Professional Conduct.

COUNT IV
(Failure to cooperate with disciplinary investigation)

37. On December 23, 2013, the Administrator received a request for investigation of Respondent from the Wisconsin Court of Appeals relating to Respondent's representation of Terrence Thomas ("Thomas") (see Count III, above). The Administrator docketed the investigation as number 2013IN05852.

38. On June 25, 2014, the Administrator received a request for investigation of Respondent from Leon Buchanan, Jr. ("Buchanan"), in relation to Respondent's representation of Buchanan's son, Leon Buchanan, III (see Count I, above). The Administrator docketed the investigation as number 2014IN02923.

39. On June 8, 2015, after Respondent had submitted written responses in 2013IN05852 (Thomas) and 2014IN02923 (Buchanan), the Administrator issued a subpoena requiring Respondent to appear for his sworn statement and requesting, in part, his client files related to his representation of Terrence L. Thomas and Leon Buchanan, III, on June 30, 2015.

40. On June 30, 2015, Respondent appeared for his sworn statement and gave testimony, but he did not produce any documents related to his representation of Terrence L. Thomas or Leon Buchanan, III. At his sworn statement, Respondent agreed to comply with the document production requested by the Administrator's subpoena by July 14, 2015.

41. On July 9, 2015, the Administrator sent Respondent a letter reminding Respondent that he had until July 14, 2015 to comply with the document production requested by the Administrator's subpoena.

42. On July 21, 2015, Respondent telephoned counsel for the Administrator and stated that he had been busy with court appearances, but would comply with the document production requested by the Administrator's subpoena shortly.

43. As of August 17, 2015, the date Inquiry Panel D voted a complaint in this matter, Respondent had not produced any documents with regard to his representation of Terrence L. Thomas or Leon Buchanan, III.

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

  1. knowingly failing to respond to lawful demands for information from a disciplinary authority, by conduct including failing to comply with the document production requests in the Administrator's June 8, 2015 subpoena, in violation of Rule 8.1(b) of the Illinois Rules of Professional Conduct (2010); and

  2. conduct that is prejudicial to the administration of justice, by conduct including failing to comply with the document production requests in the Administrator's June 8, 2015 subpoena, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

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.

Peter L. Apostol
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:  Peter L. Apostol