Filed April 19, 2016
In re Monica E. Ribbeck
Commission No. 2014PR00092
Synopsis of Review Board Report and Recommendation
This matter arises out of the Administrator's one-count complaint charging Respondent with filing a frivolous pleading and engaging in conduct prejudicial to the administration of justice, based upon her filing of a Rule 224 petition in an airline-crash case.
Following a hearing, the Hearing Board found that Respondent had filed a frivolous pleading in violation of Illinois Rule of Professional Conduct 3.1 (2010), agreeing with the court that had dismissed Respondent's Rule 224 petition that a Rule 224 petition is inappropriate where the identity of at least one potential defendant is already known. The Hearing Board also found that Respondent's filing of the petition resulted in the unnecessary expenditure of judicial resources and therefore prejudiced the administration of justice in violation of Illinois Rule of Professional Conduct 8.4(d).
On review, Respondent challenged both findings of misconduct, arguing that she had an objectively reasonable basis for filing the petition and therefore that it neither was frivolous nor prejudiced the administration of justice. She also challenged the Hearing Board's recommendation of a 60-day suspension, arguing that she should not be sanctioned when the court itself chose not to sanction her for filing the Rule 224 petition.
The Review Board reversed the findings of misconduct, finding that Respondent had an objectively reasonable basis for filing the Rule 224 petition and that her filing of the petition was not prejudicial to the administration of justice. It thus recommended that the case against Respondent be dismissed.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
MONICA E. RIBBECK,
Commission No. 2014PR00092
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
Within a few weeks after Malaysia Airlines Flight 370 disappeared mid-flight, Respondent was retained by the estate of one of Flight 370's passengers. On behalf of the estate, Respondent filed a Rule 224 petition in Cook County Circuit Court, naming the Boeing Company and Malaysia Airlines as respondents and seeking information to determine the identity of other possible defendants. Judge Kathy Flanagan dismissed the petition based on her view that Rule 224 petitions cannot be used in cases where at least one potential defendant is known.
The Administrator filed a one-count complaint against Respondent, alleging that she had filed a frivolous pleading and that her conduct in doing so was prejudicial to the administration of justice, in violation of Rules 3.1 and 8.4(d), respectively, of the Illinois Rules of Professional Conduct (2010). The Hearing Board concluded that Respondent had violated both rules and recommended a 60-day suspension. Respondent filed exceptions to the Hearing Board's findings and sanction recommendation. For the reasons set forth below, we reverse the Hearing Board's findings of misconduct and recommend the case be dismissed.
Respondent was admitted to practice in Illinois in 1994. In 2005, she joined her brother's aviation-law practice, which specializes in representing survivors of airplane crashes and individuals who have lost family members in airplane crashes.
On March 8, 2014, Malaysia Airlines Flight 370, a Boeing 777 bound for Beijing, disappeared after leaving Kuala Lumpur, Malaysia. Not long after the flight went missing, Respondent was contacted by an attorney in Malaysia with whom she had previously worked about representing families of Flight 370 passengers and crew. Before agreeing to represent any clients, Respondent consulted with an expert who gave her some theories of why the flight might have gone down.
Based on the expert's theories, Respondent decided to represent families of Flight 370 passengers, and flew to Kuala Lumpur to meet with them. Among those Respondent agreed to represent were the family of Firman Chandra Siregar (a passenger) and Lee Kim Fatt, husband of Foong Wai Yuen (a crew member). On behalf of those two clients, Respondent decided to file verified petitions for discovery under Illinois Supreme Court Rule 224, in the Circuit Court of Cook County. Rule 224 allows an individual to seek discovery in order to ascertain "the identity of one who may be responsible in damages." Ill. S. Ct. R. 224. Respondent filed the petition because she wanted to identify potential defendants or co-defendants in the cases, as well as to rule out those who might not be liable.
In Cook County, Rule 224 petitions formerly were assigned randomly to the motion judges in the Law Division. In recent times, however, all Rule 224 petitions are assigned to Judge Kathy Flanagan. Thus, Respondent knew her Rule 224 petitions would be assigned to Judge Flanagan. Twice before, in 2013, Judge Flanagan had dismissed Rule 224 petitions filed
by Respondent, on the basis that Rule 224 does not allow petitions where the petitioner knows the identity of a potential defendant.
Nonetheless, on March 25, 2014, Respondent filed a Rule 224 petition on behalf of the Siregar estate, naming Boeing and Malaysia Airlines as respondents. The petition alleged the aircraft was manufactured by Boeing and operated by Malaysia Airlines, and that the petitioner reasonably believed Flight 370 had crashed as the result of "the negligence of unknown individuals and entities in the design, manufacture, ownership, operation, lease, repair and maintenance of the aircraft and its component parts, among possible other causes" of the crash.
A few days later, on March 28, without holding a hearing on the matter, Judge Flanagan issued a memorandum opinion and order dismissing the Siregar petition. In her order, Judge Flanagan noted that Respondent's law firm had filed similar Rule 224 petitions in two other matters, and that she had dismissed those petitions as having been improperly brought. She then stated that she would impose sanctions if Respondent's firm did so again. Respondent did not appeal the order because of the threat of sanctions.
Also on March 28, Respondent filed Rule 224 petition on behalf of Fatt. It was identical in all material respects to the Siregar petition. It also was assigned to Judge Flanagan, who dismissed it without hearing. However, she chose not to impose sanctions on Respondent because Respondent had received the order regarding the Siregar petition on the same day she filed the Fatt petition. Respondent appealed the Fatt ruling, and the Illinois Appellate Court for the First District reversed because Judge Flanagan had not held a hearing, as Rule 224 requires, before dismissing the petition. On remand, Respondent voluntarily dismissed the Fatt petition
because she was negotiating settlements by then; and she also feared Judge Flanagan might impose sanctions if she were to proceed with the petition.
In July 2014, the Administrator filed a one-count complaint against Respondent based on her filing of the Siregar petition.1 In the complaint, the Administrator alleged that the Siregar petition was frivolous because Rule 224 did not permit the filing of a petition where "the identity of one who may be responsible in damages" was known to the petitioner; and that Respondent knew of two potentially responsible parties - Boeing and Malaysia Airlines - and therefore had no need to discover the identity of a responsible party. Consequently, the Administrator alleged, Respondent brought a proceeding where there was no basis in law and fact for doing so that was not frivolous, and engaged in conduct prejudicial to the administration of justice, in violation of Illinois Rules of Professional Responsibility 3.1 and 8.4(d), respectively.
The Hearing Board found that Respondent had violated both Rule 3.1 and Rule 8.4(d). It noted that she had filed the Rule 224 petition against Boeing and Malaysia Airlines on behalf of the Siregar estate to ascertain the identity of additional defendants. It found she already possessed the names of potential defendants - Boeing and Malaysia Airlines - and agreed with Judge Flanagan's view that a Rule 224 petition is inappropriate where the identity of one potential defendant is already known. It also found that Respondent filed the petition for publicity, not because she had a legal basis to do so. It thus found Respondent's petition improper and frivolous in violation of Rule 3.1. It further found that Respondent's filing of the Siregar petition, in disregard of Judge Flanagan's warning and legal precedent, resulted in the unnecessary expenditure of judicial resources and therefore prejudiced the administration of justice in violation of Rule 8.4(d). It then recommended that she be suspended for 60 days.
Respondent filed exceptions to the Hearing Board's report and recommendation. She raises many arguments on appeal, but they boil down to a challenge to the Hearing Board's factual findings regarding Respondent's basis for filing the Rule 224 petition and its legal determination that it was improper for her to do so.
On review, the factual findings of the Hearing Board are entitled to deference, and are not to be disturbed unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). A finding of fact is against the manifest weight of the evidence only when the opposite conclusion is clearly evident. That the opposite conclusion is reasonable is not sufficient. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E. 2d 961(2006).
On the other hand, questions of law, such as whether circumstances shown by undisputed facts constitute misconduct and what interpretation is to be given to rules, are reviewed by this Board under a de novo standard. In re Morelli, 01 CH 120 (Review Bd., March 2, 2005), at 10, approved and confirmed, M.R. 20136 (May 20, 2005); In re Edmonds, 2014 IL 117696, par. 36.
We find that this case presents a mixed question of law and fact, because its outcome turns on the Hearing Board's interpretation of the law regarding Rule 224 petitions, as well as its factual findings regarding the reasonableness of Respondent's conduct.
Rule 3.1 - Filing a frivolous pleading
Rule 3.1 provides: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of
existing law." A pleading is frivolous where there is no objectively reasonable basis, in law or in fact, for the pleading at the time it was filed. In re Carr and Hess, 2010PR00046 and 2010PR00047 (Review Bd., June 28, 2012), at 12, approved and confirmed, M.R. 25521 (Nov. 19, 2012) and M.R. 25481 (Sept. 17, 2012). Whether an attorney had an objectively reasonable basis for filing a pleading is a factual determination that can be reversed only if it is against the manifest weight of the evidence. See In re Greanias, 01 CH 117 (Hearing Bd., June 12, 2003), at 24, approved and confirmed, M.R. 19079 (Jan. 20, 2004) (applying manifest weight of evidence standard in reviewing Hearing Board's finding that respondent filed frivolous pleading).
The Hearing Board found Respondent's Rule 224 petition frivolous. To establish that the Hearing Board's finding is against the manifest weight of the evidence, Respondent must show that the opposite conclusion is clearly evident - in other words, that it is clearly evident that there was an objectively reasonable basis for her Rule 224 petition at the time it was filed. See Carr and Hess, 2010PR00046 and 2010PR00047 (Review Bd.), at 12. We find she has done so.
We agree with Respondent's argument that, based on Illinois law at the time she filed her Rule 224 petition, she had an objectively reasonable basis for filing the petition. In reaching its conclusion that Respondent's petition was frivolous, the Hearing Board took note of decisions that had ruled that a Rule 224 petition is inappropriate where the identity of a potentially responsible party is already known. Maxon v. Ottawa Publ. Co., 402 Ill. App. 3d 704, 710-11, 929 N.E.2d 666(3rd Dist. 2010); Roth v. St. Elizabeth's Hospital, 241 Ill. App. 3d 407, 413, 607 N.E.2d 1356 (5th Dist. 1993); Guertin v. Guertin, 204 Ill. App. 3d 527, 531, 561 N.E.2d 1339 (3rd Dist. 1990). It reasoned that Respondent impermissibly filed a Rule 224 petition when she already knew the names of potentially liable parties - Malaysia Airlines and Boeing.
But, as Respondent points out, a First District case reached a seemingly different conclusion. She contends that Beale v. Edgemark Financial Corp., 279 Ill. App. 3d 242, 664 N.E.2d 302 (1st Dist. 1996), in which that court analyzes and distinguishes the appellate court decisions relied upon by the Hearing Board, contradicts the Hearing Board's as well as Judge Flanagan's view of Rule 224. Thus, she argues, at the time she filed her petition in Cook County Circuit Court, the First District had expressly upheld her use of Rule 224, and no other on-point cases instructed that it was wrong of her to file it.
The Hearing Board, however, rejected Respondent's interpretation of Beale. It noted that the Beale court raised concerns that Rule 224 would be abused by attorneys and implored trial courts to use their discretion and refuse to allow such abuses. Id. at 254 (citing Shutes v. Fowler, 223 Ill. App. 3d 342, 346, 584 N.E.2d 920 (4th Dist. 1991)). It stated that the evidence in this case showed that Respondent was attempting to abuse the intended purpose of Rule 224 for her own gain and that Judge Flanagan refused to permit it.
Respectfully, we disagree with the Hearing Board's analysis of Beale as it applies to Respondent's case. Beale involved an appeal from an order granting a Rule 224 petition, and one of the issues presented was "whether Rule 224 can be used if the petitioner is aware of the identity of at least one defendant at the time of filing his petition." 279 Ill. App. 3d at 244. Thus, the issue addressed by the First District appellate court is the exact issue raised in Respondent's briefs.
The petitioner in Beale was a former shareholder of the respondent, Edgemark Financial Corporation. While he was a shareholder, he pledged shares of Edgemark stock to Harris Trust & Savings Bank and Merchandise National Bank of Chicago, as collateral for loans from those banks. The petitioner's agreement with Harris allowed him to reacquire his Edgemark
shares before a certain date at $24 per share, but he did not exercise the option by that date. A few months later, Edgemark announced publicly that it was being acquired by Old Kent Financial Corporation at $43 per share. Before the announcement, Edgemark's stock was trading at $23.75 per share.
In his Rule 224 petition, the petitioner alleged that certain officers and directors of Edgemark knew of his agreement with Harris and withheld information from him about the plans for Edgemark's sale to Old Kent. He also alleged that officers, directors, and/or other insiders were purchasing Edgemark stock during the time when they were withholding the information about the sale. He noted that, about a month after the announcement of Edgemark's sale to Old Kent, the National Association of Securities Dealers, Inc. (NASD) wrote to Edgemark's president and CEO asking Edgemark to identify whether 36 listed individuals and entities had any affiliation with Edgemark that would make them privy to non-public information about Edgemark's business activities, particularly with respect to Edgemark's sale to Old Kent. The Rule 224 petition alleged that the conduct of Edgemark and certain of its officers and directors constituted fraud and breach of fiduciary duty and violated federal and state securities laws.
The petition sought from Edgemark, among other things, the information provided to the NASD in response to its letter. The trial court granted that request. Edgemark moved to modify the request to limit the discovery only to the names identified in Edgemark's response to the NASD's letter. After reviewing Edgemark's NASD response, the trial court denied Edgemark's motion and ordered Edgemark to turn the document over to the petitioner. Edgemark appealed.
On appeal, the court noted that the scope of Rule 224 had been addressed by the Third, Fourth, and Fifth Districts of the Illinois Appellate Court, and analyzed those cases. It
noted that, in Guertin v. Guertin, 204 Ill. App. 3d 527, 561 N.E.2d 1339 (3d Dist. 1990), the Third District limited Rule 224's application to situations where the identity of the defendant was unknown. However, in that case, there was only one possible defendant, and the petitioner knew not only the name of the possible defendant but also information about that individual's conduct that would suggest liability.
It noted that, in Shutes v. Fowler, 223 Ill. App. 3d 342, 584 N.E.2d 920 (4th Dist. 1991), the Fourth District upheld the constitutionality of Rule 224; ruled that it was limited to ascertaining the identities of potential defendants; and affirmed the trial court's order requiring the petitioner's employer to disclose the identities of other companies who were involved at the construction site where the petitioner was injured.
Finally, it analyzed two cases, decided on the same day, in which the Fifth District held that discovery under Rule 224 was limited to ascertaining "the identity of one who may be responsible." Roth v. St. Elizabeth's Hosp., 241 Ill. App. 3d 407, 413, 607 N.E.2d 1356 (5th Dist. 1993) (emphasis in original); see also Malmberg v. Smith, 241 Ill. App. 3d 428, 607 N.E.2d 1370 (5th Dist. 1993). It noted that, in Roth, the petitioner had sought broad discovery in order to determine who might be responsible in damages in a medical malpractice lawsuit; the respondent had acknowledged the petitioner was entitled to know the name of a consulting doctor but not more detailed information that would help to determine liability; and the appellate court agreed with the respondent that Rule 224 allowed a search for identity, not responsibility.
It further noted that, in Malmberg, the petitioner knew the identity of the potential libel defendant, but sought to discover the contents of his statements to determine whether an action could be maintained against him. Relying on Roth, Shutes, and Guertin, the Malmberg
court found Rule 224 inapplicable in that case because the petitioner already knew the identity of the potential defendant.
The Beale court then noted that none of the cases precluded discovery under Rule 224 solely on the basis of the petitioner's knowledge of a potential defendant's name. Rather, in each of those cases, at the time the Rule 224 petition was filed, the petitioner knew the connection of each individual to the injury, and identified each as someone who may be responsible for the injury. Beale, 279 Ill. App. 3d at 251-52.
The court then rejected Edgemark's argument, based on Roth, that the petitioner was not entitled to use Rule 224 because he knew the identity of some defendants and had filed a federal lawsuit against them, which was pending at the time the trial court ruled on his Rule 224 petition. The court stated that Roth did not hold that Rule 224 discovery is not permitted where the petitioner knows the name of a potential defendant, but only that it is not permitted where the petitioner knows the names and certain other information that establishes the potential for liability; and that the petition in Roth was denied because it sought specific information concerning liability. Id. at 252 n.3.
The Beale court reasoned that, "[i]n order to determine ?who may be responsible,' one must be able to identify those individuals or entities who stand in the universe of potential defendants." Id. at 252. To do so, a petitioner may seek information to ascertain the identity of individuals or entities bearing a sufficient connection to the injury to place them within the universe of potential defendants; but the petitioner may not seek discovery of facts pertaining to any actual wrongdoing. The court thus held that, because the information in Edgemark's response to the NASD pertained only to the potential for liability and not actual liability, the trial
court did not exceed the scope of Rule 224 by allowing discovery of that information. Id. at 252-54.
We take no position on the issue of whether or not Beale correctly interpreted the scope of Rule 224; only the Illinois Supreme Court can make that determination or resolve the split, if any, among its appellate court districts. But the crucial question here is not whether Beale or any of the other cases interpreted Rule 224 correctly; it is whether Respondent had an objectively reasonable basis for filing her Rule 224 petition based upon the controlling law at the time she filed it. We find that she did.2
We agree with Respondent that Beale allows Rule 224 to be used to determine the identity of other potential defendants even when the identity of one potential defendant is known. We further agree with Respondent that, because Beale is a First District case, it is the law that governed her practice in Cook County Circuit Court at the time she filed the Siregar petition. Moreover, the fact that the Beale court so extensively discussed and distinguished the cases from the other appellate districts highlights the ambiguity about the scope of Rule 224.
We note that even the First District appellate court that reversed Judge Flanagan's order regarding the Fatt petition commented upon the lack of consensus among the appellate districts regarding Rule 224. That court stated:
Although we acknowledge that the ultimate question as to whether a Rule 224 petition should be granted or denied is complex since different districts of our appellate court seem to disagree as to the scope of Rule 224, the procedural requirements of that rule are not, nor are the cases interpreting those requirements. In fact, the one thing our courts do agree on is that pursuant to the plain language of Supreme Court Rule 224, "[a] hearing must be held before the court can grant or deny a Rule 224 petition.
Fatt v. The Boeing Company, 2014 IL App (1st) 141108-U, at **9 (citations omitted) (first emphasis added). The court then reversed Judge Flanagan's order dismissing Respondent's petition because she had not held the required hearing on it.
We believe Respondent should not be deemed to have violated Rule 3.1 where the law provided no clear guidance on whether or not her pleading was permissible. The rule itself, and the comments to it, support our view. According to Rule 3.1, a good-faith argument for the extension, modification, or reversal of existing law constitutes a non-frivolous basis for filing a pleading. Because of the unsettled state of the law regarding Rule 224, we see Respondent's filing of the petition as such a good-faith argument. Moreover, Comment 1 recognizes that "the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change." And Comment 2 notes that a lawyer's good-faith argument in support of her client's position - which includes a good-faith argument for an extension, modification, or reversal of existing law - "is not frivolous even though the lawyer believes that the client's position ultimately will not prevail."
Based on the plain text of Rule 3.1 and the commentary to it, we are persuaded by Respondent's arguments that Rule 3.1 requires us to judge her conduct based on the law in effect at the time of filing, and to take into account that the law was ambiguous and in flux at that time. We find, therefore, that it was objectively reasonable for her to file her Rule 224 petition, either because Beale allowed her to or as a good-faith argument for the extension, modification, or reversal of the existing law on Rule 224.
That Judge Flanagan had previously dismissed two other similar petitions filed by Respondent does not change our opinion, given our finding that the question of whether Rule
224 could be used in the way that Respondent attempted to use it either was answered in the affirmative or was unresolved when Respondent filed her petition. Moreover, as Comment 2 to Rule 3.1 recognizes, the petition should not be deemed frivolous simply because it was unsuccessful in front of Judge Flanagan. See In re Balog, 98 CH 80 (Hearing Bd., Apr. 26, 2000), at 11 (ultimate failure of respondent's appeal did not render it frivolous).
In addition, while we give due deference to the Hearing Board's findings of credibility, we disagree with its reasoning with respect to the testimony of the Honorable William E. Maddux. Judge Maddux is a retired Cook County Circuit Court judge and former presiding judge of the Law Division, who during his judicial career handled and presided over other judges who handled Rule 224 petitions. At Respondent's hearing, Judge Maddux testified that Rule 224 is used regularly in air crash and other cases in Cook County, including when the aircraft manufacturer is known. He said he believes it can be used to determine the identities of manufacturers of various parts of the aircraft. He testified that "[t]here can be multiple persons responsible, not just the one you name," and that including a known potential defendant as a respondent does not preclude the use of Rule 224 to find other defendants. With respect to Respondent's petition in particular, however, Judge Maddux testified that he had only scanned Respondent's petition, and declined to offer an opinion on the validity of the petition and said he would not question Judge Flanagan's ruling.
The Hearing Board said it was not persuaded by the testimony of Judge Maddux that Respondent's use of Rule 224 was appropriate. It found that, while Judge Maddux was knowledgeable about the general use of Rule 224 in the Cook County Circuit Court, he was not knowledgeable about the specifics of Respondent's case and did not offer an opinion on the validity of Respondent's Rule 224 petition.
As noted above, though, the operative question is whether Respondent had an objectively reasonable basis for filing her petition. Based on the Hearing Board's finding that Judge Maddux was knowledgeable about the general use of Rule 224 in Cook County Circuit Court, we find the Hearing Board erred in disregarding his testimony, which speaks directly to the issue of what was reasonable for Respondent to believe under the circumstances at the time she filed her petition. See In re Greanias, 01 SH 117 (Hearing Bd., June 12, 2003), at 24, approved and confirmed, M.R. 19079 (Jan. 20, 2004) (determination of whether a pleading is well-grounded in fact or law is "based upon an objective standard of what was reasonable for an attorney to believe under the circumstances at the time of filing") (citations omitted). Furthermore, his testimony strongly supports Respondent's argument that, in the community in which she practices, Rule 224 has been commonly used in the way in which she sought to use it, and therefore that she had an objectively reasonable basis for filing her petition.
Last, we find as a matter of law that the Hearing Board erred in finding that Respondent had an improper motive for filing the petition and that her improper motive rendered it frivolous. Because we have determined that Respondent had an objectively reasonable basis for filing the petition, her subjective motive is immaterial. The standard is an objective one, not a subjective one. See Balog, 98 CH 80 (Hearing Bd.), at 11 (following Illinois appellate court precedent holding that whether an appeal is frivolous is determined by an objective standard of conduct). Under the same rationale that holds that an attorney does not have sufficient grounds for fling a pleading merely because she "honestly believed" the case was well-grounded in fact and law, Greanias, 01 SH 117 (Hearing Bd.), at 24, an attorney's subjective motive for filing a pleading should not serve to render the pleading frivolous if the attorney had an objectively reasonable basis for filing it. As Respondent's counsel noted at oral argument, the analysis
started and ends with the inquiry whether Respondent had an objectively reasonable basis to file her petition; if yes, her mindset is irrelevant.
Rule 8.4(d) - Engaging in conduct prejudicial to the administration of justice
Our analysis of whether or not Respondent violated Rule 8.4(d) need only be brief. Because we find that Respondent had an objectively reasonable basis to file her Rule 224 petition, we are hard-pressed to find that her doing so prejudiced the administration of justice.
The Hearing Board based its finding that Respondent violated Rule 8.4(d) on its belief that she blatantly disregarded legal precedent as well as Judge Flanagan's warning not to file Rule 224 petitions in air crash cases, and thereby caused the unnecessary expenditure of judicial resources. As discussed above, however, there was no clear legal precedent that instructed Respondent not to file her petition. Rather, the controlling law either permitted her to do so, as Beale would indicate, or was murky enough that her filing of the petition constituted a good-faith argument for extending, modifying, or reversing existing law - neither of which would constitute conduct prejudicial to the administration of justice.
As for Judge Flanagan's warning to Respondent, we, like Judge Maddux, decline to question her ruling. We do note, however, that Judge Flanagan did not sanction Respondent for filing the Fatt and Siregar petitions, nor did the appellate court for the Fatt appeal. The appellate court, moreover, reversed Judge Flanagan's order denying the petition in the Fatt case, finding Respondent's client had a right to a hearing on the petition. We find persuasive Respondent's argument that it should not be considered an abuse of process or prejudicial to the administration of justice to file a petition that she is entitled to a hearing on, particularly where the courts did not sanction her for her conduct.
Accordingly, we find that Respondent did not violate either Rule 3.1 or Rule 8.4(d). Because those two rule violations constituted the only misconduct found by the Hearing Board, we recommend the case be dismissed.
For the foregoing reasons, we recommend the case against Respondent be dismissed.
Richard A. Green
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 19, 2016.
Kenneth G. Jablonski, Clerk of the
1The Administrator based the complaint only on the Siregar petition, and not on the Fatt petition, presumably because Respondent prevailed on her appeal with respect to the Fatt petition and then voluntarily dismissed the case.
2The Administrator cites Gaynor v. Burlington N. and Santa Fe Rwy., 322 Ill. App. 3d 288, 750 N.E.2d 307 (5th Dist. 2001), as additional support for his argument that Respondent's Rule 224 petition was improper. We find the Gaynor case inapposite to this one because the petitioner there was using Rule 224 to seek information about liability of known defendants and the identity of additional plaintiffs, rather than the identity of potential unknown defendants, as here. Regardless, Gaynor simply further highlights the appellate-district split on Rule 224. The Administrator also cites a 2015 case, Low Cost Movers, Inc. v. Craigslist, Inc., 2015 IL App (1st Dist.) 143955, but because that case was not decided at the time Respondent filed her Rule 224 petition, it has no bearing on whether her decision to file the Rule 224 petition was objectively reasonable.