No Reasonable Chance Of Success

An Illinois Hearing Board proposes a six-month suspension of an attorney

Respondent represented the plaintiff in a lawsuit. Respondent continued to pursue the claim aggressively after it should have been clear, particularly from the client’s deposition testimony, that the case had no reasonable chance of success. Among other things, Respondent filed pleadings in which he made unsupported factual assertions, which were inconsistent with his client’s testimony. As a result of Respondent’s actions, the circuit court imposed sanctions on Respondent. Respondent appealed from the order for sanctions, without success. Respondent also did not succeed in his attempt to have his debt for the sanctions discharged in bankruptcy. Thereafter, Respondent continued to file pleadings and actions seeking to challenge the sanctions, on grounds which had been rejected before, in final court decisions. Respondent’s conduct caused the appellate court to impose further sanctions against him.

The Hearing Board found the Administrator proved Respondent filed frivolous actions and pleadings, took action in the course of a representation that had no substantial purpose other than to burden the opponents and engaged in conduct prejudicial to the administration of justice. The Hearing Board recommended that Respondent be suspended for six months and until he successfully completes the ARDC’s Professionalism Seminar and pays the court-ordered sanctions imposed against him as a result of his misconduct as proven here.

The key findings

On October 17, 2003, Mary Iacovetti was terminated from her employment as the director of a child care center in Lombard, owned and operated by KinderCare Learning Centers, Inc. Respondent filed a lawsuit on behalf of Iacovetti against KinderCare and three of its employees, John Ranieri, Arnetta Terry and Christina Yarco, i.e. Iacovetti v. KinderCare Learning Centers, Inc., et al., No. 04 L 10942, in the Circuit Court of Cook County. A number of Iacovetti’s claims, and Yarco, were later dismissed from the lawsuit. (Tr. 51, 56; Adm. Ex. 1; Adm. Ex. 46 at 2, 6).

By fall 2007, the only claims which remained pending were for defamation and “false light,” a claim for invasion of privacy based on presenting information that places a person in a false light before the public. Those claims alleged that Iacovetti was terminated based on false reports concerning her conduct in response to three incidents involving the care of children at the center. (Tr. 51, 56-58, 73-75; Adm. Exs. 1, 3; Adm. Ex. 10 at 2-4; Adm. Ex. 46 at 2-6). According to Respondent’s testimony, he relied on specific precedent as he handled the Iacovetti case and had checked the relevant facts and the law. (Tr. 331-35, 347-48, 350-53, 453).

However, at a deposition in August 2008, Iacovetti testified in relation to the childcare-related incidents that led to her termination. At that deposition, Iacovetti acknowledged that two of those incidents had happened as reported and that she was not at the child care center at the time of the third incident. Therefore, Iacovetti could not contradict testimony from other witnesses, who described the third incident during their depositions. (Adm. Ex. 10 at 4; Adm. Ex. 11 at 4-5). In his Answer, Respondent admitted he was at the depositions. (Ans. at par. 4).

After Iacovetti’s deposition, Respondent continued to pursue Iacovetti’s claims. In addition to deposing additional occurrence witnesses, Respondent moved to have the court compel KinderCare to produce for deposition, at its expense, five current or former employees who lived in the State of Oregon. None of these individuals was an occurrence witness. None had worked at the Lombard center. After Judge Charles Winkler ruled Respondent could depose only one of these persons, at his expense, Respondent never attempted to arrange that deposition. (Tr. 76-80, 429; Adm. Ex. 10 at 4; Adm. Ex. 11 at 4-5).

In March 2009, the defendants moved for summary judgment. The defense argued that Iacovetti’s claims for defamation and false light could not be proven because, given Iacovetti’s deposition testimony, the incidents leading to her termination had not been falsely reported. (Tr. 82-85; Adm. Ex. 11 at 5).

Respondent initially responded by filing and presenting emergency motions to strike the motions for summary judgment, which the court denied without prejudice. In those motions, and in his later response to the summary judgment motion, Respondent continued to assert that the reports about the incidents which preceded Iacovetti’s termination were false. (Adm. Exs. 5, 6, 7, 8). According to Respondent’s testimony, the motions to strike were emergencies because Judge Winkler wanted to set the hearing on the motions for summary judgment, but discovery was not complete, particularly information Respondent was seeking from the Oregon residents. (Tr. 337-41). Emergency motions are heard at 8:45 a.m. and typically involve situations in which action must be taken to stop an imminent event. Based on testimony from defense counsel Shawn Wood, Respondent set multiple emergency motions without a genuine emergency and served Wood’s office with notice late in the afternoon, the day before the motion was to be heard. Wood testified, in the motions to strike, Respondent was effectively opposing the motions for summary judgment. (Tr. 87-90, 92-94).

Following full briefing and oral argument, on May 21, 2009, the court entered summary judgment, for all the defendants. (Tr. 95-96, 98-99, 101; Adm. Ex. 9). Between the time that order was entered and January 1, 2010, the circuit court issued a number of additional orders. (Adm. Ex. 44 at 2). Respondent considered summary judgment improper, reasoning that the truth of the statements was a factual issue. (Tr. 431-32). On June 15, 2009, a timely notice of appeal was filed (appeal 1-09-1541), by an attorney other than Respondent. (Adm. Ex. 4)

On June 19, 2009, the defendants jointly filed a motion for sanctions under Supreme Court Rule 137. (Adm. Ex. 10). Initially, on August 3, 2009, Respondent moved to dismiss that motion as moot, based on language in the order granting summary judgment which denied all pending motions as moot. (Tr. 342-44, 432-34; Adm. Ex. 22 at 43; Adm. Ex. 46 at 7, 20). Wood testified that Judge Winkler instructed the parties to file any motion for sanctions after he ruled on the merits of the case. On October 29, 2009, after full briefing and oral argument, Judge Winkler denied Respondent’s motion. (Tr. 103, 105-106; Adm. Ex. 22 at 43, 44).

Thereafter, Respondent continued to file multiple motions in circuit court, which were not well-grounded and caused significant delay. Those motions included motions to disqualify Judge Winkler and motions seeking to have the circuit court stay further proceedings on the motion for sanctions until the appellate court resolved the appeal (appeal 1-09-1541) from the order granting summary judgment against Iacovetti. Judge Winkler, in later granting sanctions, observed that Respondent knew or should have known Iacovetti’s case was hopeless by January 1, 2009, but persisted in arguing the merits of the case in circuit court even after summary judgment had been entered. (Tr. 93, 105; Adm. Ex. 11 at 6-8; Adm. Ex. 44; Adm. Ex. 46 at 7)

Sanction

Respondent’s misconduct was prolonged and serious, but arose in the context of one matter. Respondent has practiced law since 1972, with no prior discipline. While Respondent’s misconduct originated in his handling of a client matter, most of the misconduct emanated from Respondent’s improper efforts to avoid paying a sanction entered against him. As to that sanction, which adversely affected Respondent’s own interests, Respondent’s judgment became extremely clouded and he behaved out of a very misguided and inappropriate view of the situation. Under these circumstances, suspending Respondent until further order of the Court strikes us as unduly punitive. See generally Holstein, 2014PR00008 (Hearing Bd. at 34-35).

A suspension until further order would require Respondent to prove, by clear and convincing evidence, the general concepts that he is rehabilitated and should be reinstated. Conditions for Respondent’s return to practice are certainly appropriate. However, given all the circumstances here, those conditions should be specific and tailored to the situation of this case.

A suspension which extends beyond the base suspension period only until Respondent meets certain specified conditions gives Respondent clear guidance as to what he must do to resume practice. Even more importantly, clearly tying Respondent’s ability to resume practice to payment of the sanctions gives Respondent a genuine incentive to pay the sanctions. Frankly, from our perspective, this Respondent would have no such incentive if he were suspended until further order.

(Mike Frisch)