Censure Proposed For Attorney Who Client Said Drove Him To Drinking And Divorce

An Illinois Hearing Board has proposed a public censure for ethics violations in the defense of an employment matter.

Daniel McCauley has owned A Taste of Heaven restaurant for 25 years. (Tr. 63). Beginning in 2007, Respondent represented McCauley in several matters. Three of those matters involved Maria Flores, who had worked at A Taste of Heaven. (Tr. 256). Flores filed claims against McCauley with the City of Chicago Commission on Human Relations, the State of Illinois Human Rights Commission, and in federal court. Respondent successfully defended McCauley in Flores’s federal lawsuit seeking overtime wages. (Tr. 256).

Respondent did not have a written retainer agreement with McCauley and did not send McCauley billing statements. (Tr. 34-35, 66). Occasionally Respondent asked for a check but most of the time McCauley “just kind of guessed” and mailed Respondent a check of approximately $500 per month. (Tr. 67).

The matter before us involves Respondent’s representation of McCauley in the employment discrimination complaint Flores filed with the City of Chicago Commission on Human Relations (Commission). She alleged McCauley subjected her to racial slurs, swore at her, and terminated her employment because of her age, nationality and sex. McCauley denied doing so and wished to defend himself against these allegations. McCauley believed he had a strong defense and told Habib he had no interest in settling with Flores. (Tr. 110, 123).

The attorney failed to attend a settlement conference and a default was entered against his clients

Respondent’s failure to attend the prehearing conference was an error that led to default judgment being entered against McCauley and A Taste of Heaven. This was an inadvertent mistake that does not rise to the level of misconduct. See Mason, 122 Ill. 2d at 169 (failure to timely file a statutory notice of claim was an oversight that, standing alone, “simply cannot be deemed neglect or incompetence within the meaning of the pertinent rules of the Code.”). Respondent also attempted to rectify his mistake by filing a motion to vacate the default and later appealing the Commission orders.

We recognize that Respondent committed another error by filing the motion to vacate only on behalf of A Taste of Heaven and not McCauley. This error, even in conjunction with the missed prehearing conference, does constitute an ethical violation. Moreover, it had no practical effect because Hearing Officer Cohen denied the motion to vacate.

We do not find Respondent’s decision to forego presenting evidence at the damages hearing to be evidence of incompetence. Respondent’s strategy in defending his client at hearing was a matter of judgment. At the time of the hearing, Respondent strongly believed McCauley was being denied due process and made that argument repeatedly to the Hearing Officer. Respondent then followed through with appeals of the Commission orders. The issue is not whether Respondent employed the best possible strategy or could have done something differently, but whether he acted with appropriate legal skill, knowledge, thoroughness and preparation. We find he did so and advocated competently on McCauley’s behalf, despite his mistakes. For these reasons, the Administrator did not meet the burden of demonstrating a failure to provide competent representation by clear and convincing evidence.

The Hearing Board found a failure to communicate but not dishonesty

We…find the Administrator did not meet his burden of proving Respondent dishonestly concealed information from McCauley. Respondent did not give McCauley copies of orders in a timely manner, but the evidence showed the usual practice for all of Respondent’s matters with McCauley was to discuss them verbally. Respondent did not give McCauley copies of documents for any of his cases, and McCauley did not ask for them. Thus, the failure to provide orders, by itself, does not establish dishonest intent. Moreover, while Respondent did not give McCauley sufficiently specific information, as we found above, he did not hide the fact the case was going badly. McCauley acknowledged Respondent told him several times the case was not going well and he would seek to vacate or appeal certain orders. McCauley also stated in his request for investigation that Respondent told him in the summer of 2010 he had missed a hearing, the case was “found against us” and he would seek to vacate the judgment. Based on McCauley’s own statement, Respondent advised McCauley not only of Respondent’s mistake but of the default judgment.

The client’s view

McCauley described his experience with Respondent as traumatic and exhausting. The stress of the process caused him to start drinking after 25 years, and then his marriage ended. Because of the judgment against him, he has lost business opportunities and has a lien on his home. (Tr. 99-100). McCauley previously had “huge admiration” for Respondent as a litigator. (Tr. 108).

The board concludes

 Respondent does not present a risk to the public or the legal profession. A censure will adequately address his misconduct and serve the purposes of the disciplinary process.

(Mike Frisch)