Filed March 31, 2014
In re Brian Keith Sides
Commission No. 2011PR00144
Synopsis of Review Board Report and Recommendation
This matter arises out of the Administrator's two-count Amended Complaint, charging Respondent with misconduct arising out of statements he made in pleadings filed in a small claims case in which he was the defendant and in which he represented himself. The Complaint alleged that Respondent made various statements that he knew to be false, or with reckless disregard as to the truth or falsity of the statements, concerning the qualifications or integrity of several judges in violation of Rule 8.2(a); knowingly made false statements of fact to a tribunal in violation of Rule 3.3(a)(1); used means that had no substantial purpose other than to embarrass, delay or burden a third person in violation of Rule 4.4(a); and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).
The Hearing Board found that Respondent violated Rule 8.2(a), violated Rule 3.3(a)(1) with respect to the statements outlined in Count II, and violated Rule 8.4(d). The Hearing Board dismissed the charges that Respondent violated Rule 3.3(a)(1) in Count I and dismissed the charges that Respondent violated Rule 4.4(a) in both counts. The Hearing Board recommended that Respondent be suspended for five months, stayed after 60 days by a two year probation.
Upon review, the Administrator asked the Review Board to overturn the dismissal of Rule 3.3(a)(1) in Count I and Rule 4.4(a) in both counts. The Administrator also requested that Respondent be suspended for one year until further order of the Court. The Respondent requested that the Review Board recommend dismissal of the charges or a reprimand.
The Review Board overturned the findings that Respondent did not violate Rule 4.4(a), finding that Respondent's statements had no substantial legitimate purpose other then to harass, embarrass, or insult the judges or opposing counsel. The Review Board upheld the remaining findings of the Hearing Board. The Review Board declined to recommend a suspension until further order of the Court, finding that such a severe sanction was unwarranted given the substantial mitigation presented at hearing. The Review Board agreed with the Hearing Board that a probationary period following the period of suspension would allow another attorney to supervise and mentor Respondent and would serve to protect the public and the clients he serves. The Review Board recommended that Respondent be suspended for a period of six months followed by a one year period of probation with conditions.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
BRIAN KEITH SIDES,
Commission No. 2011PR00144
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
During the course of a collection suit against Respondent, Respondent made a number of written statements about various judges hearing his matter, suggesting that the judges were corrupt and prejudiced against him. His behavior, as outlined below, complicated what should have been a relatively simple proceeding. The Administrator's two count complaint alleged that Respondent made various statements that he knew to be false, or with reckless disregard as to the truth or falsity of the statements, concerning the qualifications or integrity of several judges in violation of Rule 8.2(a); knowingly made false statements of fact to a tribunal in violation of Rule 3.3(a)(1); used means that had no substantial purpose other than to embarrass, delay or burden a third person in violation of Rule 4.4(a); and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d).
The Hearing Board found that Respondent engaged in some of the misconduct alleged by the Administrator but dismissed the charges that Respondent violated Rule 3.3(a)(1) in Count I and Rule 4.4(a) in both counts. The Administrator asks this Board to overturn these findings and find that Respondent violated the respective Rules. The Hearing Board recommended that Respondent be suspended for five months, stayed after 60 days by a two year
probation. The Administrator asks that this Board recommend a suspension of one year and until further order of Court. Respondent asks that this Board recommend no sanction and dismiss the proceedings or, in the alternative, issue a reprimand. While we overturn the Hearing Board's findings that Respondent did not violate Rule 4.4(a), we affirm the Hearing Board's remaining findings and we recommend that Respondent be suspended for six months followed by probation for one year.
Count I: Statements Re: Judge Chase Leonhard
In August 2006, Midland Funding L.L.C., represented by Frank Janello, filed a small claims complaint against Respondent in Champaign County and obtained a default judgment against Respondent in the amount of $9,409.18. Respondent alleged he was not properly served with summons in the case. In October 2006, Respondent filed a pleading challenging service of process but took no further action on the matter until 2010.
In 2010, after being denied a credit card because of the outstanding judgment, Respondent filed a counterclaim in the Midland suit "for Violations of U.S. Regulations and Statutes" and an "amended special, limited appearance challenging service". Respondent contended that he had not been properly served in 2006. Judge Leonhard, the judge assigned to the case, set the matter for a hearing. Judge Leonhard did not know Respondent prior to this matter. During the hearing, Respondent explained at length that he ran away from the process server, apparently because he was fearful that the process server could be connected to one of his angry former clients and because he was close to the courthouse where there had been bomb threats. Janello called the process server as a witness who testified he tried to serve Respondent at his address but that Respondent denied being Respondent. Both Janello and Judge Leonhard described Respondent's behavior during the hearing as bizarre or unusual. Judge Leonhard
testified that Respondent had an odd way of processing information, did not draw rational inferences and was evasive. He found Respondent's testimony in the matter to be incredible. Respondent's conduct in the case created extra work for the opposing counsel on the case and for the court.
Following the hearing, Judge Leonhard ruled in Midland's favor. During Respondent's unsuccessful attempts to vacate the judgment, Respondent made the following claims and statements in various pleadings:
Judge Leonhard erred by requiring the Respondent "to testify in open court, with regard to his social security number" and "demanded that [Respondent] provide an answer in open court as to his social security number";
Judge Leonhard was "purposely manipulating the record";
The judge engaged in a "deliberate effort to destroy [Respondent's] case and/or a deliberate effort to intimidate [Respondent] from further pursuing his rights by giving [Respondent] an introductory lesson in the abusive powers of the Judge.";
The proceedings were a "sham" and the judge was a "prejudicial judge";
Judge Leonhard made sure Respondent's testimony was not on the record;
Judge Leonhard improperly left the bench and walked out of the courtroom while the process server was on the stand; and
In describing Judge Leonhard's abuse, Respondent questioned whether Judge Leonhard might be at a "low point" in his career and might need assistance with stressors in his life, referencing the Lawyers Assistance Program.
Respondent's statements were false. Judge Leonhard did not request that Respondent reveal his social security number, he did not prevent Respondent from offering evidence or from speaking, he did not leave the bench during the proceedings and he demonstrated no prejudice against Respondent. Judge Leonhard reported Respondent's
allegations to the presiding judge in Champaign, Judge Difanis. Judge Difanis then reassigned the matter to Judge John Kennedy.
The Hearing Board found that Respondent made statements he knew to be false, or with reckless disregard to the truth or falsity, concerning the integrity of Judge Leonhard, in violation of Rule 8.2(a). The audio recordings of the hearing, ordered by Respondent, and the transcripts demonstrate that Respondent's statements had no factual basis. The Hearing Board found that Respondent made the statements that Judge Leonhard purposefully manipulated the record, attempted to falsify the record, left the courtroom and asked for his social security number, knowing that the statements were false or with reckless disregard as to their truth or falsity. Respondent's false accusations compromised the appearance of the impartiality of the court. Respondent's conduct needlessly prolonged the proceedings and turned a relatively simple case into a "malignant litigation." Moreover, opposing counsel was forced to spend unnecessary time and expense because of Respondent's misconduct. Accordingly, Respondent's conduct prejudiced the administration of justice in violation of Rule 8.4(d).
However, the Hearing Board found that Respondent did not intentionally make a false statement of fact to a tribunal in violation of Rule 3.3(a)(1) because the Board did "not believe there is clear and convincing evidence that Respondent knowingly made false statements." The Hearing Board noted that Respondent continued to believe in the truth of his statements at hearing. Rule 3.3(a)(1) prohibits a lawyer from "knowingly" making false statements of fact or law to a court. Respondent's state of mind is generally an issue of fact, and within the province of the Hearing Board. In re Ingersoll, 186 Ill.2d 163, 168-169, 710 N.E.2d 390 (1999). Accordingly, we decline to overturn the Hearing Board's finding that the Administrator failed to prove Respondent violated Rule 3.3(a)(1). We are not untroubled,
however, that Respondent "believed" statements to be true that had absolutely no basis in fact or reality.
Similarly, the Hearing Board also found that the Administrator failed to prove that Respondent violated Rule 4.4(a) because the Administrator did not prove that Respondent made the allegations against Judge Leonhard with the intent to burden or harass anyone. However, Rule 4.4(a) does not use the words "intentionally" or "knowingly". The Rule provides, "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Respondent's statements about Judge Leonhard served no substantial purpose other than to embarrass, delay or burden a third person. Indeed, when asked at oral argument what other purpose the statements served, Respondent's counsel answered "to show his displeasure" or "to vent." Respondent's desire to express displeasure at the court's rulings does not provide a legitimate basis to burden and harass the court and opposing counsel by suggesting the court acted without impartiality or attempted to falsify the record. See, e.g., In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010), recommendation adopted, No. M.R. 24030 (Sept. 22, 2010)(attorney violated Rule 4.4 by making false statements about the integrity of judges in two proceedings and directing an ethnic slur at opposing counsel in another proceeding); In re Gerstein, 99 SH 1 (Review Bd., Aug. 12, 2002), petition for leave to file exceptions denied, No. M.R. 18377 (Nov. 26, 2002)(this Board stated that "a desire to vent his anger" did not constitute a substantial purpose under Rule 4.4). We conclude that Respondent violated Rule 4.4(a).
Count II: Statements re: Judge Kennedy, Judge
All Judges in Champaign County
In November 2010, Respondent filed a motion to substitute Judge Kennedy (referred to as "s.J." in Respondent's pleadings) from the case. In the motion he alleged that Judge Kennedy was prejudiced against him and stated, "It is clear it is s.J.'s corrupt intention to dismiss with prejudice the Counterclaim that is being withdrawn due to judicial bias." Respondent also alleged that Judge Kennedy was serving only the "corrupt interest of covering up" Judge Leonhard's abuse and misconduct. Respondent also filed a petition to substitute the entire Sixth Circuit judiciary, alleging that all of the judges in the circuit had colluded against him following a previous ordinance violation.
In another pleading, Respondent claimed that Judge Difanis was prejudiced against Respondent as the judge "has a history of, when a petition to substitute is pending, assigning the case to himself (without notice to the petitioner) for the purpose of seeing to the demise of the petitioner's case."
In January 2011, following a hearing at which Respondent failed to appear, Judge Kennedy issued an order denying Respondent's outstanding motions. Respondent filed a motion to reconsider the order on February 23, 2011. Respondent alleged that Judge Kennedy improperly ruled on Respondent's motions because the case had been set only for a status. Respondent stated, "Such back-alley justice makes a mockery of the legal procedures that gives parties notice of hearing and a right to be heard, procedures traditionally sets our legal system form that of oppressive dictorial regimes." In December 2011, Respondent filed a pleading to substitute Judge Kennedy, referring to Judge Kennedy and Attorney Janello as "predators" and to Judge Kennedy as a "scourge on his profession." Respondent referred to opposing counsel Mr.
Janello as a "susceptible boy-lawyer" who learned from Judge Kennedy the power of corruption so he "can accept a judgeship, representing the next generation of Illinois corruption."
The Hearing Board found that Respondent's statements as outlined above regarding Judge Kennedy, Judge Difanis and the other judges in the Sixth Circuit violated Rule 8.2(a) and 8.4(d). The Hearing Board found that Respondent made a false statement of fact to a tribunal in violation of Rule 3.3(a)(1) regarding his statement that all of the judges in the Sixth Circuit have colluded against him because Respondent conceded he had no evidence that the judges had colluded against him.
However, the Hearing Board, as in Count I, found that Respondent did not violate Rule 4.4(a). Again, Respondent's statements served no substantial, legitimate purpose other than to harass, demean and insult the judges and Janello. Accordingly, as in Count I, we conclude Respondent violated Rule 4.4(a).
The Illinois Supreme Court has long held that although attorneys are permitted to engage in fair criticism of a judge's rulings, they are not permitted to engage in unjust criticism, insulting and scurrilous attacks, or other offensive conduct toward members of the judiciary. People ex rel Chicago Bar Association v. Metzen, 291 Ill. 55 58, 125 N.E. 2d (1919). Such conduct by attorneys, who are officers of the court, tends to bring the courts and the legal profession into disrepute and to destroy public confidence in the integrity of the judiciary. In re Jafree, 93 Ill.2d 450, 460, 444 N.E.2d 143 (1982); In re Phelps, 55 Ill. 2d 319, 322-323, 303 N.E. 2d 13 (1973).
Respondent's misconduct is serious. His actions unnecessarily prolonged the litigation and demonstrated a profound lack of respect for the judicial system. The Hearing
Board found that Respondent's misconduct was hurtful to the judges' reputations and "was very disruptive to the court system in Champaign County."
Respondent's misconduct was not limited in scope but involved at least seven pleadings filed between July 2010 and December 2011. Respondent had ample opportunities to reflect on his actions and to consider the language he used in his pleadings. This is not a case of an attorney who made intemperate statements in the heat of the moment. While Respondent expressed remorse when questioned by his attorney, when he testified at length, he continued to demonstrate a disturbing lack of objectivity and he defended his attacks and statements regarding the integrity of the judges.
Because Respondent's conduct was not limited to a single outburst and was not limited in scope, we conclude that a censure or a reprimand, as suggested by Respondent, is not appropriate. Cf., In re Harrison, (Review Bd., Oct. 14, 2008), approved and confirmed, No. M.R. 22838 (March 16, 2009)(censure imposed for a lawyer who filed a motion to continue a criminal case included referring to the case as a "criminal court fiasco" and signed the motion "Indignantly Submitted."); In re Riordan, 345 Wis.2d 42, 824 N.W.2d 441 (2012)(attorney reprimanded for impugning the integrity of a judge in a motion to substitute). Likewise, we believe that the Hearing Board's recommendation of a suspension for five months, with the suspension stayed after only sixty days, is also insufficient. Case precedent supports a recommendation of a suspension of at least several months and Respondent's conduct warrants a sanction of a lengthier suspension. See, e.g., In re Witter, 09 CH 50 (Review Bd., Dec. 8, 2011), petition for leave to file exceptions denied, No. M.R. 25283 (May 18, 2012)(attorney suspended for four months and until he completes ARDC Seminar for making false statements to a court about the amount of fees he was owed and for making false statements that the judge was "pre-judging" his case, that the judge ignored the law and that the judge was prejudiced against him);
In re Dore, 07 CH 122 (Feb. 25, 2011), petition for leave to file exceptions denied, No. M.R. 24566 (Sept. 20, 2011)(attorney suspended for five months and until he completes the ARDC Seminar for asserting frivolous positions in three matters and in making false statements about the integrity of a judge; because the respondent appeared to have gained some understanding that he needed to control his emotions a more severe sanction was unwarranted). Because we view Respondent's conduct to be more prolonged then the conduct in Witter and Dore, we recommend a suspension of six months.
We recognize Respondent offered evidence mitigating his misconduct. Most importantly, Respondent's misconduct in this matter arose out of a case in which he represented himself. He did not jeopardize his clients by engaging in the misconduct at issue here. In fact, according to Respondent, he has represented clients without complaint. The Hearing Board found in mitigation that Respondent acted without corrupt or dishonest motive and that he testified he recognized that his language was inappropriate. Respondent has not been previously disciplined. Respondent called two character witnesses who testified as to his honesty and charitable acts. Respondent testified as to his significant volunteer activities, including volunteering with the Red Cross, volunteering with his neighborhood association, and providing some pro bono legal services through the Land of Lincoln Legal Assistance Foundation. He is active in his church and in the local Masons Lodge. At the time of the conduct, Respondent was a partner in a law firm with his significant other and mother of his three children, Christina Manuel. He is no longer a partner with Ms. Manuel but he continues to work for Ms. Manuel. Finally, in mitigation the Hearing Board found that Respondent's firm has a general practice and serves a lower socioeconomic community in the Champaign area, a community that is underserved by the legal profession.
Given these mitigating circumstances, and given Respondent's expressions of remorse, we conclude that Respondent's misconduct does not warrant a suspension until further order of the Court as suggested by the Administrator. Continuing a suspension until further order of the Court is appropriate where the circumstances as a whole suggest that the respondent is unwilling or unable to conform to ethical standards. In re Houdek, 113 Ill. 2d 323, 326-27, 497 N.E.2d 1169 (1986); In re Greanias, 01 SH 117 (Hearing Bd., June 12, 2003), approved and confirmed, No. M.R. 19079 (Jan. 20, 2004). Respondent has stated that he will not represent himself in the future and hopefully is at little risk of repeating his behavior.
However, we agree with the Hearing Board that a probationary period following the period of suspension will allow another attorney to supervise and mentor Respondent and will serve to protect the public and the clients he serves. We expect that the supervising attorney's review of pleadings filed by Respondent will ensure he does not repeat the misconduct at issue here. We therefore recommend that Respondent, Brian Keith Sides, be suspended from the practice of law for a period of six months, followed by a one year period of probation, subject to the following conditions:
Respondent's practice of law shall be supervised by a licensed attorney acceptable to the Administrator. Respondent shall provide the name, address, and telephone number of the supervising attorney to the Administrator. Within the first thirty (30) days of probation, Respondent shall meet with the supervising attorney and meet at least once a month thereafter. Respondent shall provide the supervising attorney with access to pleadings and other papers filed in judicial proceedings by Respondent, as directed by the supervising attorney. Respondent shall authorize the supervising attorney to provide a report in writing to the Administrator, no less than once every quarter, regarding Respondent's cooperation with the supervising attorney, the nature of Respondent's work, and the supervising attorney's general appraisal of Respondent's practice of law;
Respondent shall provide notice to the Administrator of any change in supervising attorney within fourteen (14) days of the change;
Within the period of probation, Respondent shall attend and successfully complete the ARDC Professionalism Seminar;
Respondent shall comply with the provisions of Article VII of the Illinois Supreme Court Rules on Admission and Discipline of Attorneys and the Illinois Rules of Professional Conduct and shall timely cooperate with the Administrator in providing information regarding any investigations relating to his conduct;
Respondent shall attend meetings as scheduled by the Commission probation officer;
Respondent shall notify the Administrator within fourteen (14) days of any change of address;
Respondent shall reimburse the Commission for the costs of this proceeding as defined in Supreme Court Rule 773, and shall reimburse the Commission for any further costs incurred during the period of probation; and
Probation shall be revoked if Respondent is found to have violated any of the terms of probation. If probation is revoked, Respondent shall be suspended until further order of Court.
Robert M. Henderson
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office onMarch 31, 2014.
Kenneth G. Jablonski, Clerk of the