Don’t Fence Me In

An interesting Illinois Hearing Board report has a majority in favor of a suspension of a year and until further order

Respondent, an attorney admitted to practice law in Illinois and not admitted in any other state jurisdiction, was removed from the Illinois master roll in 2014 for failing to register. While not on the Illinois master roll, Respondent represented two clients with respect to their bankruptcy matters in the United States District Court for the Eastern District of Michigan (USDC-EDM). He failed to inform the Chief Judge of the USDC-EDM of the change in his Illinois registration status and misrepresented his registration status to the USDC-EDM. In addition, he neglected the two client matters and failed to properly communicate with the clients. His misconduct was aggravated by his lack of participation in his disciplinary proceedings. We recommend Respondent be suspended for one year and until further order of the Court…

Respondent’s conduct is aggravated by his failure to participate in this disciplinary matter. Respondent evaded being personally served with the Complaint in this matter and then after having been served with the Complaint pursuant to Commission Rule 214(b), he failed to file an answer. He also did not appear at the disciplinary hearing. The Court has recognized that an attorney’s failure to cooperate in his own disciplinary proceedings is indicative of indifference toward and even contempt for disciplinary procedures and demonstrates a complete want of professional responsibility. In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976). In mitigation, Respondent has not been previously disciplined. Yet, since he had only been admitted to practice law in Illinois for less than five years before engaging in some of the misconduct outlined in the Complaint, we give this factor little weight.

The Administrator recommends Respondent be suspended from the practice of law for one year and until further order of the Court. In support of this recommendation the Administrator cites the following cases. See In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978) (imposing a six-month suspension and until further order of court); In re Casbarian, 07 CH 56, M.R. 22534 (Sept. 17, 2008) (imposing a one-year suspension and until further order of court); In re Lucas, 00 CH 38, M.R. 18545 (Mar. 19, 2003) (imposing a three-month suspension); In re Bonner, 93 CH 442, M.R. 10536 (Nov. 30, 1994) (imposing a one-year suspension and until further order of court).

These cases involve similar misconduct to that which is present here. Similar to Respondent, the attorneys in Levinson, Bonner, and Casbarian neglected one or multiple client matter(s) and made misrepresentations. These attorneys also failed to fully cooperate in their disciplinary proceedings. Specifically, the attorneys in Levinson and Bonner did not appear at their hearings thereby warranting the imposition of a suspension to until further order of the Court. Also, very similar to the present matter, the attorney in Lucas engaged in the unauthorized practice of law in federal court and made misrepresentations to the court regarding whether she was authorized to practice there. However, the attorney in Lucas participated in her disciplinary proceedings and presented mitigating evidence, which is distinguishable from this matter and necessitates the imposition of a more significant sanction here.

The interesting part is the dissent of Champ W. Davis, Jr.

In this action the Administrator wants to suspend a non-resident attorney for one year and until further order of the Court notwithstanding that the attorney is not authorized to practice law in Illinois and was not authorized to practice in Illinois at the time of the misconduct. Moreover, the misconduct occurred entirely within the state of Michigan.

I dissent on the ground that I do not believe this matter is properly before the Illinois disciplinary authorities. The misconduct should be dealt with by the Michigan disciplinary authorities — not the Illinois ARDC. Michigan Rule of Professional Conduct 8.5(a) provides in relevant part that “A lawyer not admitted in this jurisdiction (i.e., Michigan) is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction.”

The misconduct alleged in this case arose solely from services which Respondent provided in Michigan. Respondent was disbarred from practice before the Federal District Court for the Eastern District of Michigan for that misconduct. I respectfully suggest that the present case be dismissed for lack of jurisdiction and that any further discipline of Respondent be left to the Michigan disciplinary authorities.

 The majority on the jurisdictional issue

Respondent was admitted to the Illinois Bar and licensed to practice law in Illinois on November 5, 2009. Accordingly, the ARDC, through the power granted to it by the Illinois Supreme Court, has jurisdiction to conduct disciplinary proceedings against Respondent for conduct, even if the conduct occurred exclusively in Michigan.

I actually litigated this issue – can an attorney be sanctioned for conduct before a foreign tribunal that has not imposed discipline – in a pre-Rules (i.e. Rule 8.5) case. 

The attorney W.E. Thompson had failed to appear in a Virginia case.  No discipline was imposed in Virginia. He was charged with the misconduct in a multi-count bar case and made the jurisdictional argument of the dissent with respect to the Virginia failure to appear.

The D.C. Court of Appeals rejected the argument, applying the principle that is now found in Rule 8.5(a).

Wherever you may roam, be it far or be it home, the license goes with you. (Mike Frisch)