Benefit Of The Doubt

The Illinois Review Board has recommended a 60-day suspension for litigation misconduct that mostly took place in the last century.

The events that led to this disciplinary matter are part of an epic and Byzantine saga of litigation in federal court, which is recounted in detail in the Hearing Board’s report and will be summarized as briefly as possible here. Our focus is on the proceedings that resulted in the appeals that the Administrator alleges are frivolous.

Respondent was admitted to practice in Illinois in 1976, and worked for Jenner & Block and another firm before starting his own practice in 1987. In 1988, a Maryland attorney, Jeffrey Hines, began representing Illinois Company Grove Fresh Distributors, Inc. (Grove Fresh), which sold orange juice manufactured by contractors. In 1989, Mr. Hines filed a federal lawsuit in the U.S. District Court for the Northern District of Illinois against some of Grove Fresh’s competitors, alleging that they sold adulterated and misbranded orange juice in violation of federal law. Mr. Hines hired Respondent as his local counsel, and eventually ended his representation of Grove Fresh, at which time Respondent took over as its sole counsel.

The first Grove Fresh lawsuit (Grove Fresh v. Everfresh Juice Co., No. 89 C 1113) was assigned to Judge Zagel, who, during the course of the proceedings, came to believe that Respondent had ignored court orders and disclosed confidential information to generate unfavorable publicity for defendants. Thus, in a second Grove Fresh case (Grove Fresh v. John Labatt Ltd., et al., No. 90 C 5009, hereinafter referred to as the Grove Fresh case or litigation), Judge Zagel ordered that the complaint and all subsequent proceedings shall be filed under seal, and, in May 1991, entered a stipulated protective order to protect confidential and proprietary information and to facilitate discovery.

In January 1993, Grove Fresh relieved Respondent of responsibility for the litigation and other counsel took over. In April 1993, the Grove Fresh case was dismissed with prejudice pursuant to a settlement. In June 1993, a group of journalists intervened in the Grove Fresh litigation and filed a motion to vacate the seal Judge Zagel had previously entered. Judge Zagel denied their motion, and they appealed to the Seventh Circuit. In their response brief, the Grove Fresh defendants accused Respondent of bringing false allegations against them in order to obtain a multi-million dollar settlement.

Respondent initiated additional proceedings before Judge Zagel because of defendants’ accusation, and, in October 1993, filed a motion with the Seventh Circuit requesting a hearing on the allegations made by the Grove Fresh defendants in the journalists’ appeal. The court struck the motion. Subsequently, the Grove Fresh defendants filed two petitions for contempt against Respondent, alleging that he had disclosed confidential and protected information in his Seventh Circuit motion for hearing and in a letter to counsel for the journalists.

The problem

During the course of decades-long federal litigation, Respondent was charged with violating a protective order in the early 1990s. That led to a contempt order in 1995 and monetary sanctions in 1997, which were upheld on appeal, followed by a second contempt order in 2000. Shortly before the court entered the second contempt order, Respondent filed a Rule 60(b) motion to vacate the first contempt order, which the court denied, and then filed an appeal, which the Seventh Circuit found frivolous. In a bankruptcy proceeding that resulted from the monetary sanction imposed in the first contempt proceeding, in 2009, Respondent appealed to the U.S. District Court from the bankruptcy court’s decision to give collateral estoppel effect to the first contempt order; and in 2011, he appealed to the Seventh Circuit from the U.S. District Court’s decision affirming the bankruptcy court’s decision.

Based on Respondent’s appeal from the denial of the Rule 60(b) motion and two bankruptcy appeals, the Administrator filed his complaint against Respondent.

Following a hearing, the Hearing Board found that Respondent filed a frivolous pleading and engaged in conduct prejudicial to the administration of justice in relation to the Rule 60(b) appeal, but not with respect to the bankruptcy appeals. It recommended that Respondent be suspended for 60 days and until he completes the ARDC’s Professionalism seminar.

On review, Respondent challenged the Hearing Board’s finding that he engaged in any misconduct at all, as well as some pre- and post-hearing rulings, and the Administrator challenged the Hearing Board’s findings of no misconduct arising out of the bankruptcy appeals, as well as its sanction recommendation.

The Review Board affirmed the Hearing Board’s finding of misconduct with respect to the Rule 60(b) appeal and its findings of no misconduct with respect to the bankruptcy appeals. It concurred with the Hearing Board’s sanction recommendation and recommended that Respondent be suspended for 60 days and until he takes the ARDC’s Professionalism seminar.

Sanction

we acknowledge, but reject, the Administrator’s urging that Respondent be suspended until further order of court because of his unwillingness to conform his conduct to his professional obligations. As was the Hearing Board, we are disturbed by Respondent’s conduct during his disciplinary proceeding, in which he continued to rehash the Grove Fresh litigation and made baseless accusations against the Administrator. We hope that, once this disciplinary matter is behind him, Respondent can conduct himself in accordance with his professional obligations as he did before the Grove Fresh litigation commenced. Accordingly, we will give him the benefit of the doubt and decline to suspend him until further order.

We believe, however, that he would benefit from taking the ARDC’s Professionalism seminar, and therefore recommend that he be suspended for 60 days and until he completes the ARDC’s Professionalism seminar.

This 1995 coverage from the Chicago Tribune. (Mike Frisch)