Filed April 10, 2015
In re David Alan Novoselsky
Commission No. 2011PR00043
Synopsis of Review Board Report and Recommendation
The Administrator filed an eight count Third Amended Complaint charging Respondent with engaging in dishonesty, failing to return unearned fees and failing to adequately communicate with three clients. In addition, the Administrator charged Respondent with making a number of harassing statements to opposing counsel and others over the course of several years.
The Hearing Board found that Respondent engaged in some of the misconduct alleged by the Administrator in seven of the eight counts of the Third Amended Complaint. The Hearing Board found that Respondent neglected matters, misrepresented the status of the cases, and failed to adequately communicate with his clients Miriam and Peter Shabo and Milijana Vlastelica. He also failed to reduce contingency fee agreements to writing and return unearned fees. In addition, the Hearing Board found that Respondent failed to adequately communicate with clients Mary Ann and Stephen Travnik and failed to provide an accounting of his fees.
The Hearing Board also found that Respondent made offensive and degrading statements to Jeanine Stevens, John Xydakis and Deputy Kennealy in violation of Rule 4.4. After considering the factors in mitigation and aggravation, the Hearing Board recommended that Respondent be suspended for six months.
Upon review, Respondent alleged that his due process rights had been violated because he believed that one of the Hearing Board members may have received documents after the conclusion of the hearing. He asked that the matter be remanded for a new hearing before a new hearing panel. In addition, he argued that certain limited findings were against the manifest weight of the evidence and that his misconduct warranted no greater than a sixty day suspension. The Administrator asked that the Review Board affirm the findings of the Hearing Board but asked that Respondent be ordered to make restitution of his unearned fees.
The Review Board declined to remand the matter, finding that record did not support Respondent's inferences of improper behavior by a Hearing Board member or opposing counsel. The Review Board affirmed the findings of misconduct of the Hearing Board. The Review Board was particularly troubled by Respondent's conduct in making personal attacks upon his opposing counsel and a court deputy, his refusal to recognize that his conduct was unprofessional, and his propensity to resort to dishonesty during his disciplinary hearing. The Review Board concluded that given Respondent's lack of evidence that he is willing or able to meet professional standards of conduct in the future, his suspension should continue until further order of the Court. The Review Board affirmed the findings of fact and findings of misconduct of the Hearing Board and recommended to the Supreme Court that Respondent be suspended for six months and until further order of the Court and until he makes restitution of $15,000 to Miriam and Peter Shabo and $15,000 to Milijana Vlastelica.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
DAVID ALAN NOVOSELSKY,
Commission No. 2011PR00043
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
In an eight count Third Amended Complaint, the Administrator charged Respondent with engaging in dishonesty, failing to return unearned fees and failing to adequately communicate with three clients. In addition, the Administrator charged Respondent with making a number of improper and harassing statements to opposing counsel and to a sheriff's deputy over the course of several years. Respondent denied engaging in any misconduct. After a highly contentious and extremely lengthy disciplinary proceeding, the Hearing Board found that Respondent engaged in some, but not all, of the misconduct alleged by the Administrator. The Hearing Board recommended that Respondent be suspended for six months.
Respondent has filed exceptions. In addition to challenging some of the Hearing Board's findings and claiming that that the Hearing Board failed to consider that Respondent was "baited" into making the offensive statements to opposing counsel, the Respondent alleges that his due process rights have been violated because he believes that one of the members of the Hearing Board may have received documents outside of the record after the conclusion of the hearing in an alleged violation of the rules prohibiting ex parte communications. Respondent
requests that this Board remand the matter for a new hearing in front of a different panel. In the alternative, the Respondent asks that this Board recommend a sanction of no more than a sixty day suspension. The Administrator asks this Board to uphold the Hearing Board's findings and recommendation, but also recommend that Respondent be ordered to return two fees found by the Hearing Board to be unearned.
We conclude that Respondent has failed to demonstrate that his due process rights have been violated. We decline to remand this matter. We uphold the findings of the Hearing Board. Because we find Respondent's actions to be egregious and because Respondent lacks any remorse or understanding of his misconduct, we recommend to the Court that he be suspended for six months and until further order of the Court. We also recommend that Respondent be ordered to return his unearned fees.
RESPONDENT'S REQUEST FOR A REMAND
Respondent contends his due process rights were violated because he has learned that someone may have sent documents to Kenn Brotman, one of three members of the Hearing Panel who heard this matter, during the Panel's deliberations. Respondent suggests that Mr. Brotman may have received the documents because an e-mail from a person named Craig Marshall1 to an attorney at the ARDC (not of record as counsel in this proceeding) stated "copy to: Kenn Brotman". Respondent contends that certain documents were attached to the e-mail.2
At the outset we note that there is no evidence in the record that Mr. Brotman or the other two Hearing Panel members received or reviewed any of the documents in question. There is no suggestion from the Hearing Board's Report that the Hearing Panel received the documents in question. The Hearing Board's findings in its Report are clearly based on the record in this proceeding. Respondent argues that "silence and influence are intended to coexist,"
and suggests that the Hearing Panel's silence on the receipt of the documents must be viewed as nefarious. We disagree. The record before us does not support Respondent's inferences of improper behavior by the Hearing Panel and opposing counsel.
Despite the lack of any evidence that the Panel considered a letter sent to the Chair of the Panel by a lawyer for one of many witnesses regarding one sole count of the Administrator's charges, the Respondent demands that this matter be remanded. We decline to do so. Hearing Board members, like judges, are presumed to be impartial. In re Ducey, 01 SH 118 (Review Bd., Sept. 8, 2006) at 11, petition for leave to file exceptions allowed, No. M.R. 21234 (Sept. 18, 2007); Hartnett v. Stack, 241 Ill.App.3d 157, 169 (2nd Dist. 1993). Respondent has not established any prejudice on the part of any member of the Hearing Board. With respect to a request for reversal due to an alleged improper ex parte communication, reversal is warranted only where actual prejudice is shown. Korunka v. Dept. of Children and Family Services, 259 Ill.App.3d 527 (4th Dist. 1994); In re Maher, 314 Ill.App.3d 1088, 1098 (4th Dist. 2000). In Maher, the trial court had an ex parte conversation with a witness in chambers and then recalled the witness to testify about information gained in that conversation. The appellate court affirmed the judgment of the trial court because the court perceived of no prejudice from the judge's actions. See also, Waste Management of Illinois, Inc. v. Pollution Control Bd., 175 Ill.App.3d 1023 (2nd Dist. 1988) (court refused to reverse an agency's decision because of ex parte contacts by the public with members of that agency absent a showing that the contacts resulted in prejudice). Cf.,In re Marriage of Wheatley, 297 Ill.App.3d 854 (5th Dist. 1998) (court granted request to vacate a judgment based on "unique" circumstances where a former Congressman directed a letter to a judge requesting that the judge consider a dozen reasons why
the judge should rule in favor of the Congressman's acquaintance). We decline to conclude that the Hearing Panel's assumed conduct resulted in prejudice.
The Hearing Board concluded that Respondent committed misconduct arising out of the charges of seven of the eight counts in the Administrator's Third Amended Complaint. Respondent challenges only a few of the many findings of misconduct.
Count I: Shabo Representation
The Hearing Board found that Respondent agreed to represent Miriam and Peter Shabo with respect to certain matters arising out of a custody battle between the Shabos's daughter Claudia and her former husband. At the time of his first meeting with the Shabos in June 2007, the Shabos had been added as third-party respondents in Claudia's case and the court had issued a temporary restraining order against the Shabos enjoining them from interfering with the activities of the child representative, Ralla Klepak. The Shabos sought Respondent's advice. According to the Shabos, Respondent told them that he had previously filed two other lawsuits against Klepak and that he could file a lawsuit "right away" on behalf of the Shabos. Based on Respondent's representations, the Shabos gave Respondent two checks, each for $15,000. Miriam Shabo ("Shabo") testified that Respondent told her the second $15,000 check was intended to be used for expenses and costs incurred in filing the lawsuit. While Respondent offered a number of different explanations for his use of the second payment of $15,000, the Hearing Board found his testimony to be "incredible" and inconsistent with the documentary evidence, including e-mails between Shabo and Respondent. Respondent also admitted he intended to represent the Shabos on a mixed hourly and contingency fee basis although he never reduced his fee agreement to writing.
Over the course of the next twenty-one months, Miriam Shabo exchanged e-mails with Respondent. Based on these e-mails and based on conversations Shabo testified she had with Respondent, Shabo believed Respondent had filed a lawsuit on her and her husband's behalf. Respondent led the Shabos to believe they had a legitimate claim. Respondent testified that he mistakenly believed that the Shabos had a claim based on his understanding that a court had monetarily sanctioned them. However, he did not review the court file to confirm his understanding. In February 2009, the Shabos learned that Respondent had not filed a lawsuit on their behalf.
The Hearing Board concluded that Respondent violated Rule 1.3 by failing to represent the Shabos with reasonable diligence; violated Rules 1.4(a) and 1.4(b) by failing to adequately communicate with the Shabos and by leading them to believe he would take immediate action on their behalf; violated Rule 1.5(c) by failing to reduce his contingent fee agreement to writing; and violated Rule 1.16 by failing to return the unearned second $15,000 payment. In addition, the Hearing Board concluded that Respondent engaged in dishonesty and deceit in violation of Rule 8.4(a)(4) by misleading Ms. Shabo about the status of the matter, by giving her false assurances that he was taking action on her behalf,3 and by falsely telling her he had filed two other lawsuits against Klepak in order to induce Shabo to pay him his fee.
The Respondent challenges the finding that Respondent violated Rule 8.4(a)(4) by falsely telling Shabo that he had filed two other lawsuits against Klepak. While this argument is largely academic given the Hearing Board's additional findings that support a conclusion that Respondent violated Rule 8.4(a)(4), we find no error by the Hearing Board. The Hearing Board noted, in reaching the finding, that Respondent previously admitted in a civil lawsuit that he told the Shabos he had previously filed two lawsuits against Ralla Klepak. Respondent contends that
the Hearing Board erred in considering Respondent's admission in that proceeding, because it was unverified and was not a binding judicial admission. We have previously found an admission in an unverified answer to be binding on the client. See, In re Aronovitz, 2011PR00004 (Review Bd., June 27, 2013), petition for leave to file exceptions allowed, No. M.R. 26217 (Sept. 25, 2013). Therefore, we do not find the Hearing Board's consideration of Respondent's answer to be error. More importantly, the Hearing Board's finding was additionally based on the testimony of Miriam Shabo, who testified that Respondent told her he had filed the two other lawsuits when he was persuading Shabo to hire him. The Hearing Board found this testimony to be more credible than Respondent's denial of the conversation.Credibility determinations rest with the Hearing Board. In re Timpone, 208 Ill. 2d 380, 383, 804 N.E.2d 560 (2004). Accordingly, we find no basis to overturn the Hearing Board's finding.
Counts II and III: Vlastelica Representation
As set forth in Count II, Milijana Vlastelica hired Respondent in July 2006 to appeal a sanction order in a custody dispute involving custody of her son. The court had sanctioned her but had not yet determined the monetary amount of the sanction. She signed a fee agreement agreeing to pay $250 an hour and paid Respondent a $10,000 retainer. She also hired another attorney to represent her in the custody case at the trial level.
In October 2006, the court entered the monetary amount of the sanction against Vlastelica in the amount of $9,980. Respondent filed a motion to reconsider. In January 2007, the court denied the motion to reconsider. Respondent asked Vlastelica for another $10,000 to appeal the sanction order.
Vlastelica, surprised by Respondent's request and uneager to spend another $10,000 to appeal a $9,980 sanction order, agreed to pay Respondent another $10,000 if he
would also represent her in attempting to overturn the trial court's decision to order a second custody trial and the court's order that she pay half of the fees of the child's representative. The fee agreement, never reduced to writing, also included a contingent fee. Vlastelica sent e-mails to Respondent confirming her objectives to have Respondent appeal all three issues.
On January 25, 2007, Respondent filed a notice of appeal on behalf of Vlastelica addressing only the sanction issue. In October 2007 he filed an appellate brief. When asked by Vlastelica why he had not raised the other two issues, Respondent did not reply. Because Respondent failed to file transcripts with the brief, the appellate court denied the appeal in September 2008. Respondent did not advise Vlastelica that her appeal had been denied until October 2, 2008, the deadline for filing a petition for re-hearing.
The Hearing Board concluded that Respondent failed to abide by the client's decisions concerning the objectives of the representation in violation of Rule 1.2(a) for three reasons -1) he deprived Vlastelica of any choices regarding the direction of her litigation because of his refusal to communicate with his client, 2) he failed to tell Vlastelica that her appeal had been denied until the time for a rehearing had passed and 3) he failed to abide by the client's decisions as to the issues to present on appeal. For the same reasons, the Hearing Board concluded that Respondent violated Rules 1.4(a) and 1.4(b). Respondent contends that the Hearing Board erred solely with respect to the third reason noted above in support of the finding that he violated Rule 1.2. Respondent argues that he could not have violated Rule 1.2 for this reason because he contends that the client's objectives were unavailable under the law. The underlying orders regarding these issues were interlocutory orders that could not be appealed unless certified by the trial court pursuant to Supreme Court Rule 3.8(a). Respondent believed there were no grounds for seeking certification of the fee order, although he never told Vlastelica
this. Moreover, the trial judge had denied certification of an appeal of the order for a new custody hearing. Thus, he argues that he charged the client $20,000 solely to file a request for reconsideration and an appeal of the $9,980 sanction order.
Again, Respondent's argument is an academic one given the Hearing Board's additional findings, including the additional findings supporting a violation of Rule 1.2. However, we disagree with Respondent's proposition that "objectives of the representation" must be viewed as narrowly as drawn by Respondent. Respondent contends that Vlastelica's objectives were to appeal the three issues. A review of her testimony suggests her objectives were to 1) obtain a reversal of the sanction order, 2) avoid a second custody hearing, and 3) reduce the amount she owed to the child representative. Respondent took no steps to abide by her wishes to accomplish the final two objectives, although he certainly led her to believe he would attempt to help her. Respondent told her he would appeal the issues but he did not do so and he does not dispute the Hearing Board's finding that he violated Rule 1.4(b) by failing to adequately explain the matter to her. Accordingly, we uphold the Hearing Board's findings of misconduct in Count II.
As alleged in Count III, in June 2007, Respondent agreed to represent Vlastelica in filing a separate lawsuit against Jeffrey Brend, the child representative in the custody case. Vlastelica was concerned because Brend would not let the child stay at her house even though she had custody, but other attorneys had told her that Brend had absolute immunity. Like in the Shabo matter, Respondent told Vlastelica he had filed similar lawsuits and would represent her on an hourly and contingent basis. He did not reduce his fee agreement to writing. He asked Vlastelica for an additional $15,000 which he stated would be used for costs and expenses. He expended no costs or expenses and the Hearing Board found he performed no services in
exchange for the $15,000. The Hearing Board found that Respondent convinced Vlastelica that child representatives did not have immunity from suit simply so that he could collect more money from her. Upon numerous requests for information from Vlastelica, Respondent falsely told Vlastelica that he had filed a complaint and was working on an amended complaint. She sent e-mails to Respondent confirming the conversations and Respondent did not reply to the e-mails. Respondent gave conflicting testimony and at one point claimed he had prepared a draft complaint and had sent it to the client, but he could not produce a copy of a letter or of a draft complaint, claiming that the items were on a different computer. The Hearing Board did not believe Respondent, finding his testimony to be incredible.
The Hearing Board concluded that Respondent violated Rule 1.3 by failing to file a lawsuit or perform any services for Vlastelica in exchange for his $15,000; violated Rules 1.4(a) and 1.4(b) by failing to answer the client's requests for information and by failing to adequately explain the matter to Vlastelica; violated Rule 1.5(c) by failing to reduce his fee agreement to writing; violated Rule 1.16(e) by failing to return the $15,000 unearned fee; and violated 8.4(a)(4) by intentionally misleading Vlastelica into believing he had filed a lawsuit on her behalf. Respondent does not dispute any of these findings before this Board.
Count V: Travnik Representation
Mary Ann and Stephen Travnik retained Respondent in 2001 to represent them in claims against Safeco Insurance Company and other parties because their home had been left uninhabitable from mold due to a faulty dishwasher installation. The Travniks gave Respondent a $10,000 retainer. Respondent agreed to charge them $250 an hour and agreed that upon exhaustion of the initial retainer, he would bill for additional fees on a quarterly basis. Respondent never abided by his agreement to provide bills to the Travniks; he never provided a
full accounting of his time while he represented them and provided only one bill in the eight years he represented the clients.
In total, from 2001 to 2003 the Travniks paid Respondent about $222,000. In June 2002, at Respondent's request, the Travniks paid Respondent $12,000. In October 2003, Respondent settled the case for $530,500. Respondent deducted $200,196.80 from the settlement. Respondent deducted $63,000 of the settlement proceeds as earned attorney's fees, $196.80 as expenses, and $137,000 as "future fees." The settlement provided that Safeco would retain a lien against the property, and the Travniks wanted Respondent's assistance to remove the lien. While Respondent claimed at hearing that the lien could easily be removed, he had not done so by the time the Travniks fired him in 2009.
The Hearing Board found that there was conflicting testimony as to whether the lien could be removed and they declined to conclude that Respondent neglected the Travnik's matter. However, the Hearing Board found misconduct with respect to Respondent's time for his alleged fees. The record provides numerous and consistent requests from Mrs. Travnik for an accounting of Respondent's fees. While Respondent claimed at hearing that he discussed his bills over the phone with the clients, the Hearing Board again found Respondent's testimony to be incredible, noting that his testimony at hearing was inconsistent with his testimony at a prior sworn statement. Accordingly, the Hearing Board found that Respondent violated Rule 1.4(a) by failing to adequately communicate with his clients and by failing to provide an accounting of his time despite repeated requests. The Board also found Respondent violated Rule 1.15(b) by failing to provide an accounting to the Travniks of his retainer fee and of the $137,000 he withheld from the settlement purportedly for "future fees." Respondent does not dispute these findings.
Count VI: Derogatory and Vulgar Statements
to Jeanine Stevens in the Zvunca Litigation
The allegations of this Count and Counts VII and VIII arise out of contentious litigation ("the Zvunca litigation") that has consumed countless hours of the court system in Cook County and in federal court. As noted by Respondent, some attorneys have apparently characterized the case as the case of the century. Respondent's conduct has arguably greatly contributed to that characterization.
We will not attempt to provide the complete history of the Zvunca litigation. In summary, the controversy arose from the death of Claudia Zvunca, a Romanian immigrant who was struck by a Greyhound bus in Colorado in 2002. Zvunca's then seven year old daughter, Cristina, witnessed the accident. Lawyer Cushing was appointed as administrator of the Zvunca estate. Cushing retained Jeanine Stevens, and later Tom Clancy, to bring a wrongful death claim against Greyhound and others. The probate court also considered various issues relating to Claudia's estate.
In about February 2008, Tiberiu Klein, Claudia's widower, retained Respondent. Respondent represented Klein in the pending litigation until he was terminated and replaced by John Xydakis in 2010. At the time of the disciplinary proceeding, the litigation was still pending.
The Administrator's charges of misconduct arising out of the Zvunca litigation are fairly limited. Throughout the litigation, Respondent called Jeanine Stevens and others a number of names and used profanity, resulting in the charges before us.
Stevens and Respondent only directly communicated with each other on one occasion. In 2008, Stevens telephoned Respondent because she had heard that Respondent was going to try to replace her as plaintiff's counsel in the pending wrongful death suit, and she
believed that the replacement was not in the best interests of Cristina. Respondent told her she was too emotionally involved in the case and called her a bitch. According to Respondent, she then responded with a threat using vulgarity, but she denied making the statement.
Thereafter, before during and after hearings in the Probate Division and in the Law Division, Respondent routinely called Stevens names. He generally did so outside the presence of a judge but in the presence of others in the courtroom and with an apparent intent to disrupt Steven's presentation. A number other witnesses testified about these statements. For example, without reiterating all of the instances that are more fully set out in the Hearing Board's Report, Respondent called Stevens a "bitch", "asshole", "slut", "cunt", "pervert", "whore", and "child molester". On two occasions in August 2008 and September 2009, Respondent stated to Stevens in the presence of others, "Nice dress, slut." On another occasion during a hearing, Respondent asked Stevens, "[S]till hanging around the bars and picking up the DePaul students?" On another occasion, Respondent referred to Stevens during a hearing as a "pervert" and a "fucking bitch."
Respondent denied making some of the statements and could not remember if he had made other statements. However, he admitted making several of the statements. He often claimed he was provoked by undocumented personal attacks against him or claimed that the parties were "ribbing" each other, although witnesses confirmed Stevens' testimony that she did not provoke, react, or respond to these statements.
In concluding that Respondent violated Rule 4.4 by making the offensive and degrading statements and by using means that had no purpose other than to embarrass, delay or burden a third person, the Hearing Board found that Respondent's language went beyond zealous advocacy. The Hearing Board noted that Respondent did not make the statements in the heat of
the moment. The Board stated, "These statements are not only unprofessional, but are derogatory, vulgar and profane. There was credible testimony by more than one individual that Respondent regularly made these and additional statements to and about Stevens before she approached the bench so as to have an effect on her advocacy."4
The findings of the Hearing Board were not against the manifest weight of the evidence. We do not disturb the findings of fact made by the Hearing Board unless they are against the manifest weight of the evidence. In re Cutright, 233 Ill. 2d 474, 488, 910 N.E. 2d 931 (2009). "A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident." Id. This deferential standard of review recognizes that the Hearing Board is in a better position to observe the demeanor of witnesses, judge credibility, and resolve conflicting evidence. Id. We see no reason to disturb the Hearing Board's findings.
We are not persuaded by Respondent's allegations that he was "baited" into personally abusing another attorney or that he made the statements because of the acrimonious nature of the litigation. First, the record does not support Respondent's contention that Stevens provoked him. Secondly, even if Stevens had provoked Respondent in some unspoken manner, her conduct does not excuse Respondent's conduct. The Hearing Board rejected the notion that this litigation uniquely encouraged Respondent to engage in intemperate behavior, noting that the acrimony in the Zvunca litigation "did not give free reign to make whatever derogatory comments he felt necessary. Respondent has an obligation to the legal profession to uphold the Rules of Professional Conduct even when faced with adversity. He failed to do that here." (Hearing Bd. Report, p. 86).
Finally, Respondent argues that he is the victim of a selective prosecution by the Administrator. He contends that Stevens also made intemperate remarks and, to date, has not
been subject of a disciplinary complaint. While the record before us does not suggest that other attorneys behaved equally badly, this Board has rejected similar arguments from other attorneys. See, e.g., In re Gilsdorf, 2012PR0006 (Review Bd., Dec. 10, 2013), petition for leave to file exceptions denied, No. M.R. 26540 (March 14, 2014). The Administrator has the authority to determine which cases to prosecute. In re Mann, 06 CH 38 (Review Bd., March 29, 2010), petition for leave to file exceptions denied, No. M.R. 23935 (Sept. 20, 2010). The Court has repeatedly stated that each disciplinary case must be decided on its own merits. In re Damisch, 38 Ill.2d 195, 205, 230 N.E.2d 254 (1967). We uphold the Hearing Board's finding that Respondent violated Rule 4.4.
Count VII: Derogatory Statements Regarding John Xydakis
John Xydakis represented Tiberiu Klein after Klein fired Respondent. In May 2011, Xydakis filed a motion to enjoin Respondent from further representation of Cristina. While the motion was originally scheduled to be heard at 11:30 on May 12, 2011 before Judge Riley, the judge was hearing another complicated matter that morning. At about 12:30, the judge indicated to the waiting parties on the Zvunca matter that they should come back at 1:30 p.m. Upon hearing this, Respondent became very agitated and irate and moved toward the bench. In a loud voice, Respondent stated at least several times that he had seen Xydakis snorting cocaine in the courthouse restroom and referred to Xydakis as an "idiot." Respondent's conduct was unprovoked, unless one views a judge's decision to delay a hearing for an hour as provocation. That afternoon, the judge admonished Respondent, "if I have an outburst like this morning, Mr. Novoselsky, I'm not going to tolerate it." During the hearing, Respondent again called Xydakis a "cokehead" and an "idiot" and made a quacking sound.
With respect to Count VII, the Hearing Board found that Respondent violated Rule 4.4 by using insulting and derogatory language about opposing counsel in the context of a judicial proceeding. The Hearing Board found that Respondent's statements calling Xydakis a "cokehead" and an "idiot" served no substantial purpose other than to embarrass, delay or burden Xydakis. We agree. For the same reasons noted above with respect to Respondent's conduct toward Ms. Stevens, we reject any notion that Respondent was provoked into making these statements or was justified in making the statements because he believed that Xydakis had used cocaine or because of any of the issues in the litigation. Attorneys must treat all participants in the court system with respect and courtesy. Respondent's personal statements were not warranted by the circumstances.
Count VIII: Harassment of Deputy Kennealy
During a proceeding in the Zvunca litigation, Respondent was admonished to lower his voice by Deputy Kennealy, a deputy sheriff assigned to Judge McGury's courtroom in the Circuit Court of Cook County, after Kennealy observed Respondent using a "combative tone" before the court. Judge McGury had previously asked Deputy Kennealy to do so. After the court appearance, in the hallway, Respondent approached Kennealy, called her a "dumbbell" in a loud voice and threatened to "have her job." Respondent repeated the threats to have her job in front of her colleagues. Kennealy called for backup, causing Respondent to become very angry. As alleged by the Administrator, when Respondent next appeared before Judge McGury in May 2009, he continued to argue about the incident. As found by the Hearing Board, he made insulting statements regarding the Sheriff's Department. When the judge stated she wanted to move forward with the issues in the court proceeding, Respondent continued to rant, stating in part, "I will probably be in a federal civil rights action to find out why I have to deal with
garbage like this every time I walk in because your sheriff's deputy is upset." Judge McGury stated, "Now that's insulting", to which Respondent replied, "It should be, your Honor." After Deputy Kennealy reported Respondent to the ARDC, Respondent repeated the threat to Kennealy to "have her job."
Again, we uphold the Hearing Board's findings that Respondent violated Rule 4.4 by making the statements that Deputy Kennealy was a "dumbbell" and by making repeated threats to have her job, statements that had no purpose other than to harass or burden her. We also agree that Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5). Respondent's conduct unnecessarily wasted judicial time and resources and undermined the judicial process.
The Hearing Board's recommendation as to a sanction is advisory. In re Ingersoll, 186 Ill.2d 163, 178, 710 N.E.2d 390 (1999). However, the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Chandler, 161 Ill.2d 459, 472, 641 N.E. 2d 473 (1994). The purpose of the attorney disciplinary system is not to punish the attorney for the misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981(2006). In determining the appropriate sanction, this Board considers the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). In addition, this Board may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and
whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000).
In mitigation of the misconduct, the Hearing Board noted that Respondent has practiced law for thirty years without being disciplined. Respondent notes that he has actually practiced for forty years, although this error by the Hearing Board does not affect our sanction recommendation. In addition, the Hearing Board found in mitigation that Respondent has performed pro bono work and has been active in bar associations. The Hearing Board noted that Respondent called character witnesses, including judges, who testified as to his excellent reputation.
However, notwithstanding the testimony as to his community service and pro bono work, we recognize that Respondent engaged in serious misconduct. In the Shabo, Vlastelica, and Travnik matters, Respondent lured his clients into accepting his representation so he could charge a large fee, failed to perform the services for which he was retained and then repeatedly ignored his clients' pleas for information. He also engaged in dishonest conduct in two of the matters by lying to his clients. His conduct caused harm to his clients. In aggravation, he delayed in providing information to the Administrator in the investigation of the Shabo and Vlastelica matters. Respondent's conduct relating to these three matters warrants a suspension. See, e.g., In re Adelman, 93 CH 205 (Review Bd., Sept. 18, 1995), approved and confirmed, No. M.R. 11790 (Jan. 23, 1996)(six month suspension for a pattern of accepting retainer fees, neglecting the cases, and then failing to return the unearned fees). Cf., In re Stark, 08 SH 24, petition to impose discipline on consent allowed, No. M.R. 22628 (Nov. 18, 2008)(sixty day suspension on consent where the attorney agreed that he neglected three matters on behalf of one client and made false representations to the client that the cases were pending).
Respondent's conduct in the Zvunca case also warrants a suspension. In other similar cases, the Court has imposed suspensions upon attorneys for engaging in a pattern of loud and disparaging remarks to other attorneys. See e.g., In re Guadagno,2010PR0065, petition for discipline on consent allowed, No. M.R. 24962 (Jan. 13, 2012)(five month suspension, stayed after thirty days by probation, for making homophobic slurs to opposing attorneys); In re Hoffman, 08 SH 65 (Review Bd., June 23, 2010), recommendation adopted, No. M.R. 24030 (Sept. 22, 2010)(suspension of six months and until further order for making an improper statements to a lawyer about the lawyer's religion and in making statements about the integrity of two judges that were false; respondent had practiced for thirty five years without incident but failed to apologize for his remarks); In re O'Shea , 02 SH 64 (Review Bd., July 16, 2004), petitions for leave to file exceptions allowed, No. M.R. 19680 (Nov. 17, 2004)(five month suspension for threatening opposing counsel outside of the courtroom and in writing and for engaging in one conflict of interest). While no disciplinary case presents the identical findings of misconduct involving a pattern of engaging in violations of Rule 4.4 and a pattern of engaging in a failure to communicate with several clients, failing to return unearned fees and engaging in dishonesty, the six month suspension as recommended by the Hearing Board is not out of line with the Court's precedent.
We are particularly troubled by Respondent's conduct in the Zvunca litigation. His attacks on opposing counsel and a court deputy displayed an utter disregard for the integrity of the courts. While he may still believe that he was provoked, the record indicates otherwise. We find his conduct to be indefensibly outrageous. Accordingly, we believe that our sanction recommendation must reflect the goals of the disciplinary process and must serve to protect the public from similar behavior, to protect the integrity of the courts, and to deter similar behavior
by other attorneys who might be tempted to lash out against others with the use of vulgarity and personal attacks in court proceedings.
Respondent's conduct is aggravated by the fact that he has not recognized that his repeated impulses to strike out verbally in anger were inappropriate or unprofessional. We share the Hearing Board's concerns regarding Respondent's repeated refusal to acknowledge that he did anything wrong. He expressed absolutely no remorse and the Hearing Board found that his testimony at hearing was "incredible". The Hearing Board was particularly troubled by the fact that Respondent "had an excuse for nearly everything he did or did not do, regardless of whether the actions related to a charge of misconduct." The Hearing Board noted that this tendency was concerning given the "overwhelming evidence of misconduct, especially regarding Respondent's failure to properly communicate with his clients and his failure to put contingency fee agreements in writing." (Hearing Bd. Report, pp. 104-106).
Given the nature of the misconduct when coupled with Respondent's complete lack of understanding of his obligations and his propensity to resort to dishonesty during his testimony at his disciplinary hearing, we believe that the six month suspension recommended by the Hearing Board should continue until further order of the Court. The Court has imposed a suspension until further order of the Court where there has been a lack of evidence that the respondent is willing or able to meet professional standards of conduct in the future. See, e.g.,In re Houdek, 113 Ill.2d 323, 327, 497 N.E.2d 1169 (1986); In re Bless, 2010PR00133 (Review Bd., Oct. 30, 2014), approved and confirmed, No. M.R. 27134 (March 12, 2015). We believe that a suspension that continues until further order of the Court better serves the purposes of discipline and better protects the public.
The Administrator contends that this Board's recommendation should include an order that Respondent pay restitution to the Shabos and to Vlastelica for his unearned fees. We agree. The Hearing Board unequivocally found that Respondent had not earned the $15,000 in each matter. We do not believe that the pendency of civil litigation requires that the Court refrain from ordering that Respondent return the monies that clearly do not belong to him. See, e.g., In re Giamanco, 97 SH 27 (Review Bd., Feb. 17, 1999), approved and confirmed, No. M.R. 15818 (May 26, 1999); In re Larry, 07 CH 19, (Review Bd., Aug. 11, 2009), petition for leave to file exceptions allowed, No. M.R. 23380 (Jan. 21, 2010).
For the reasons stated above, we decline Respondent's request to remand this proceeding for another hearing. We affirm the findings of fact and the findings of misconduct of the Hearing Board. We recommend to the Court that David Alan Novoselsky be suspended for six months and until further order of the Court and until he makes restitution of $15,000 to Miriam and Peter Shabo and $15,000 to Milijana Vlastelica.
Johnny A. Fairman, II
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 onApril 10, 2015.
Kenneth G. Jablonski, Clerk of the
1Respondent believes Craig Marshall is Marshall Spiegel, an attorney for John Xydakis, who was one of several witnesses for the Administrator with regard to one count of the Administrator's Third Amended Complaint.
2We decline Respondent's request to make his exhibits to his brief part of the record in this proceeding. See, e.g., In re Flynn, 07 SH 112 (Review Bd., June 30, 2010), Administrator's petition for leave to file exceptions allowed, No. M.R. 24047 (Sept. 22, 2010); In re Gauza, 2008PR00098 (Review Bd., June 7, 2013) at 8, approved and confirmed, No. M.R. 26225 (Nov. 13, 2013).
3While Respondent claims in his brief before this Board that these findings were not based on allegations in the Administrator's Complaint, he is mistaken. See e.g., Administrator's Third Amended Complaint, Count I, paragraphs 16-20.
4Because Ms. Stevens testified that her advocacy was not adversely affected by the comments, the Hearing Board declined to find that Respondent violated Rule 8.4(a)(5). While we believe that there is a valid argument that Respondent's behavior in a courtroom in front of other litigants in and of itself prejudiced the administration, that issue is not before this Board.