The Illinois Review Board proposes a censure for a pattern of discovery misconduct

Respondent was admitted to the Iowa bar in 1995 and the Illinois Bar in 1997. During the time at issue, he was a partner in the law firm of Lane & Waterman LLP in Davenport, Iowa. He was the primary attorney responsible for representing Deere and Company (Deere) in an age discrimination lawsuit pending in the U. S. District Court for the Central District of Illinois captioned, Wei v. Deere, No. 11 CV 4028. Respondent’s primary contact at Deere for the Wei case was David Meier, Deere’s in-house counsel on employment matters. The plaintiff’s attorney was B. Douglas Stephens.

The events involved stem from a discovery dispute that arose in the Wei case during 2012 and 2013. In April 2012, the plaintiff filed a motion to compel Deere to answer certain outstanding interrogatories and to pay attorney fees in the amount of $700. Respondent and Meier discussed the motion and decided to resist it. In June 2012, Deere filed a resistance to the motion to compel. In July 2012, Magistrate John A. Gorman issued an order granting the motion and awarding $700 in attorney fees to Stephens. Respondent informed Meier of the order.

At the end of each month, Lane & Waterman provides the attorney responsible for a matter with a work in progress sheet which reflects work done during that month. The work in progress sheet is then reviewed by that attorney for accuracy and any appropriate changes are made. That information is used to generate a monthly invoice sent to the client. The August 2012 work in progress sheet for the Wei case, which was reviewed by Respondent, showed a payment of $700 which was described as follows: “Miscellaneous: penalty on Discovery; Doug Stevens [sic] Law Firm.” The firm’s September 2012 invoice to Deere included the same entry with the same description.

On November 6, 2012, the plaintiff in the Wei case filed a motion for sanctions and to compel Deere to comply with the court’s July 2012 order. Deere’s response was due November 26, 2012. Respondent did not inform Meier or anyone else at Deere about the motion, nor did he file a response.

On December 4, 2012, Magistrate Gorman granted the plaintiff’s motion and ordered Deere to pay attorney fees in the amount of $1,750. Deere was also ordered to answer the interrogatories at issue within seven days and all outstanding discovery within 14 days. Magistrate Gorman further cautioned Deere that its failure to timely comply would result in sanctions, up to and including the possibility of a contempt finding or entry of default. On December 12 and 17, 2012, Respondent sent emails to Meier advising him Deere needed to supplement discovery no later than December 18, 2012. Respondent did not inform Meier of the December 4, 2012 order, or tell him that the December 18, 2012 deadline was set by the court.

On December 18, 2012, Respondent delivered a check for $1,750 to Stephens as ordered by the magistrate. That same day, Respondent and Meier exchanged emails about discovery. Respondent did not tell Meier about the magistrate’s order or the check to Stephens.

Respondent subsequently reviewed the work in progress sheet for work performed on the Wei case during December 2012. The sheet reflected the $1,750 payment made on December 18, 2012, along with the following description: “Misc. Costs; B. Douglas Stephens.” A handwritten line, however, was drawn through the name of plaintiff’s counsel followed by a check mark. Lane & Waterman’s January 2013 invoice to Deere showed the $1,750 payment as having been made for “Misc. Costs.” There was no reference the payment was made to Stephens, nor any indication it was for sanctions.

The attorney failed to report further sanctions and a magistrate report finding “unprofessional conduct” in the discovery.

Respondent did not send a copy of the magistrate’s report to Meier or anyone else at Deere. Between January and March 2013, Respondent communicated with Meier and other Deere employees about providing additional discovery to the plaintiff. Although the communications addressed the need to produce the discovery materials that were the subject of the plaintiff’s motion, Respondent did not tell anyone at Deere about the motion.

On March 28, 2013, Respondent provided full and complete responses to the plaintiff’s discovery requests. On April 18, 2013, District Court Judge Sara Darrow entered an order adopting, in part, Magistrate Gorman’s report and recommendation. Judge Darrow found that Deere’s failure to comply with court deadlines had delayed the proceeding and increased the plaintiff’s expense, and directed Deere to pay the plaintiff $1,050 in attorney fees. She further stated that while it was a “close call,” she would not hold Deere in contempt, but would not give it any further leeway. Respondent did not notify Meier of Judge Darrow’s order or provide him with a copy.

The April 2013 work in progress sheet for the Wei matter contained an entry for a payment of $1,050 dated April 24, 2013, along with the following description: “Miscellaneous; Attorney Fees; B. Douglas Stephens.” On May 2, 2013, Deere was sent an invoice which listed that same amount along with that same description.

Meier testified that when he saw the entry on the May 2013 invoice, he did not know why the payment was made and was not aware of any pending motion or ruling awarding attorney fees to Stephens. On June 21, 2013, Meier sent an email to Respondent requesting information about the payment. Respondent replied by email that same day, stating that he would get back to him.

In July 2013, senior partners at Lane & Waterman learned about the orders to compel and the sanctions in the Wei matter and decided to take Respondent off the case. Respondent withdrew as counsel in July 2013 and resigned from the firm in September 2013. Lane & Waterman later filed a motion in the Wei case asking Judge Darrow to reconsider her order to reflect that the law firm, rather than Deere, was at fault and should pay the sanctions. The motion was granted. Ultimately, summary judgment was granted in Deere’s favor in the Wei case. Respondent attempted to repay Lane & Waterman for the sanctions, but the firm returned his check. Deere was one of Lane & Waterman’s largest clients and this incident was an embarrassment to the firm.

At the urging of Lane & Waterman’s senior partners, Respondent self-reported his conduct to Illinois and Iowa disciplinary authorities. Respondent was reprimanded in Iowa. The Administrator filed an independent disciplinary proceeding in this case.

Sanction

Although we are not bound by the Hearing Board’s recommendation, we agree censure is appropriate discipline in this case. Respondent made a serious error in his handling of the original motion for sanctions and then compounded that mistake by altering the work in progress sheet to conceal this from his client. He then further compounded that mistake by failing to inform his client of the court’s ruling on the subsequent motion for sanctions. Although inexcusable, his misconduct was limited to the same ongoing discovery dispute in a single case and neither his client nor the case was ultimately harmed. Furthermore, apart from this incident, Respondent otherwise has a good reputation and is active in his community and the legal profession. We agree with the majority’s conclusion that under the particular circumstances presented here, Respondent does not pose a threat the public or the legal profession. Therefore, we conclude that a censure rather than a suspension is appropriate.

The attorney was reprimanded in Iowa. (Mike Frisch)