Claims In “Murky” Area Of Law Not Frivolous
The Illinois Review Board has recommended dismissal of ethics charges
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.
The board rejected Rule 3.1 and 8.4(d) allegations
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 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.
(Mike Frisch)