Power Point Presentation Leads To Remand

The Illinois Review Board has remanded a matter where it concluded that violation of a procedural rule justified full rehearing of proven serious misconduct.

The Rule:

(a)    Post‑Trial Motions.  Except as provided herein, post-trial motions shall not be filed with or considered by the Hearing Board.  A matter which might otherwise be presented by post-trial motion may be the subject of an exception filed with the Review Board.  Motions for an extension of the time within which to file exceptions to the report of the Hearing Board shall be ruled upon by the chair of the hearing panel which prepared the report.

(b)    Closing Argument.  The Hearing Board shall not allow or consider written summations, written closing argument or post-trial memoranda.  (Amended, effective July 25, 1986.)  

The Review Board

The Hearing Board found that Respondent engaged in egregious misconduct including intentionally misappropriating client funds in two separate matters, lying to a police officer, lying to the ARDC, and fabricating bank records in order to mislead the Administrator. The Hearing Board recommended that Respondent be suspended from the practice of law for three years and until further order of the Court, with the added requirement of restitution in the amount of $57,646.78. Respondent has filed exceptions, claiming that the Hearing Board Chair erred by violating certain Commission rules and by allowing certain testimony. Specifically, Respondent contends that the Hearing Board erred in holding the hearing on non-contiguous dates and in accepting and considering, following closing arguments, a PowerPoint presentation by the Administrator. The Respondent also argues that the Hearing Board’s findings of misconduct are against the manifest weight of the evidence. Because we agree with Respondent that the Hearing Board erred in considering written closing summations, we need not consider Respondent’s other arguments.

Reasoning

In this matter, the Administrator used PowerPoint slides as demonstrative evidence during closing arguments that apparently summarized the evidence. While we do not have the slides before us to review, the parties indicated their agreement that the slides consolidated the evidence before the Hearing Board. Indeed, when the Chair of the Hearing Panel requested to review the slides following the closing arguments he stated, “We’re not going to consider it for evidence; but it’s a nice way to consolidate some of the evidence that’s been around.”

While the Administrator contends that the PowerPoint slides were not written summations or written closing arguments pursuant to Commission Rule 284, we disagree. Slides that contain the consolidation of evidence are clearly written summations. We also reject the Administrator’s argument that Respondent waived his objection as he failed to object to the Panel’s receipt of the slides during the hearing. The Rule is clear. Rule 284 prohibits the Hearing Board from considering this type of evidence.

Finally, the Administrator argues that Respondent has failed to demonstrate that the Hearing Board’s actions prejudiced him in any way, noting that Respondent does not claim that any part of the PowerPoint slides is inaccurate or prejudicial, other than noting that one slide was a picture of a spider web. Again, the slides are not contained in the record…

We recognize that Respondent in this matter has been charged with very serious misconduct that, if proven, would warrant the severest of sanctions. However, the reality is that the Rules exist to protect not only the Administrator but also all respondents, including those charged with egregious misdeeds. To hold otherwise would render the Rules meaningless.

We reluctantly find that the Hearing Board erred by accepting a written summation of the evidence in violation of Commission Rule 284, and we remand this matter to the Hearing Board for a new hearing.

Not sure I understand the value of a rule prohibiting post-hearing submissions. I’m even less sure that remand is appropriate under the circumstances.

The Review Board’s regrets are fully justified. (Mike Frisch)