Bad Influences And Pandora’s Boxes

The Illinois Administrator has filed a complaint alleging (among other things) misconduct in an attorney’s representation of a client who was injured in a fall on a rented yacht named Bad Influence II.

The Chicago Sun Times (Mark Brown)  reported on the trial

A personal injury lawyer who was tipped by a court clerk to the contents of a jury note committed fraud by settling the case without divulging that knowledge to the other side, a Cook County judge ruled Tuesday.

Circuit Judge Daniel J. Lynch vacated a $25 million settlement against Brunswick Corp. and Brunswick Boat Group because of the alleged misconduct by lawyer Mark McNabola, who struck a deal for his clients before Brunswick’s lawyers learned of the note’s existence.

McNabola represented Scot and Patricia Vandenberg of New Lenox, who filed suit over a 2009 accident in which Mr. Vandenberg was left paralyzed after falling from the top deck of the luxury yacht Bad Influence II.  Vandenberg’s company had rented the boat for a company outing on Lake Michigan.

This is the case that I took to calling “Chicago Law” for its made-for-television, truth-is-stranger-than-fiction scenario. It’s a big hit with local lawyers, who have followed the case closely.

As you would expect in a TV show, the case pitted two of the city’s top lawyers, Dan K. Webb of Winston & Strawn for Brunswick against C. Barry Montgomery for the Vandenbergs.

Following the trial last summer, Webb replaced John Patton and Montgomery took over for McNabola when allegations of impropriety were raised about the trial’s wild climax.

At issue was a 27-minute delay between when a court clerk for Judge Elizabeth Budzinski first informed McNabola of a jury note and when she finally told Patton.

The clerk, Tatiana Agee, not only told McNabola about the note’s existence, but also told him what it said, testimony at a post-trial hearing showed. That’s considered a real no-no.

Agee then held off calling Patton, an even bigger no-no, while McNabola settled the case with Brunswick’s insurance company. She later told a court intern she liked to give an advantage to plaintiffs.

Webb argued the note showed the jury was leaning in Brunswick’s favor and that there would have been no settlement if they had known.

At the hearing, McNabola admitted Agee informed him about the contents of the jury note, but said he assumed she was doing so at Budzinski’s instruction and had no way of knowing she hadn’t called Brunswick’s lawyers.

McNabola has argued his duty to his client exceeded any ethical responsibility he had to inform the judge or Brunswick’s lawyers about what Agee had done — and he never did divulge it until called into court.

In his ruling, Lynch agreed with Webb that Brunswick was placed at an unfair disadvantage by the actions of McNabola and Agee, although he found there was no evidence of a conspiracy between them.

The judge said it must have become obvious to McNabola that Brunswick’s lawyers did not know what he knew, but he chose to mislead them with his silence.

Lynch said criminal statutes may have been violated in Agee’s handling of the jury note and her later denials, including untruthful testimony during the post-trial hearing he conducted. But he did not say anything about referring the matter for prosecution.

Lynch also cited Supreme Court rules and ethical guidelines for lawyers to suggest how McNabola could be sanctioned for his handling of the case. But he did not impose any sanctions.

A visibly upset McNabola slumped in the back of the courtroom as Lynch made his ruling from the bench.

While he vacated the settlement, Lynch stopped short of entering a judgment in favor of Brunswick, as Webb had sought.

That request was based on a verdict the jury reached when it was allowed by Budzinski to continue deliberations despite the settlement agreement, another aspect to the case considered highly unusual.

Instead, Lynch invited the two sides to reopen settlement talks before he rules on whether there was a legitimate verdict or whether there should be a new trial, as the Vandenbergs contend.

I took that as a sign Lynch wants to see the case settled without another long delay in justice for the Vandenbergs, whose injuries are very real.

Both sides asked for a delay until Feb. 1 to confer with their clients about Lynch’s suggestion.

The judge praised the court intern, Brook Reynolds, for her “courage and candor” in coming forward to inform Budzinski about Agee’s actions.

In “Chicago Law,” heroes can be hard to find.

The verdict later was upheld as reported by the Chicago Tribune.

The Cook County Record provided an April 2018 update.

A Chicago federal judge has again turned aside an attempt by boatmaker Brunswick to undo a $25 million personal injury settlement the company says was obtained through fraud, as a federal judge said the company has failed again to lay claim to a protected interest violated by a rival lawyer’s decision to allegedly withhold information about a jury note moments before a verdict would have delivered a win to Brunswick.

On April 10, U.S. District Judge Manish Shah dismissed with prejudice the counts brought under federal law by Brunswick against attorney Mark McNabola and fellow defendants, The McNabola Law Group P.C., Cook County and Cook County court clerk Tatiana Agee.

The decision, like others before it in the case and other related legal actions, centered on events that transpired rapidly during the waning minutes of jury deliberations on June 9, 2015, the final day of a trial over allegations brought against Brunswick by plantiffs Scott and Patricia Vandenberg.

The couple had filed suit in 2010, about a year after Scot Vandenberg had fallen from the rear top deck of a Hatteras yacht, made by Brunswick, suffering injuries that left him paralyzed from the neck down, according to court documents.

The attorney is charged with ethics violations in an unrelated matter involving loans to a client from his father that came to light in litigation

On December 27, 2012, Judge Mary Anne Mason held a hearing on cross motions for summary judgment previously filed in the chancery matter. The plaintiff’s motion alleged that Dr. McNabola should be paid the sums owing on the notes. The defendant’s motion alleged that the notes were “contrary to public policy and unenforceable” because the loans were initiated by Respondent, were implemented and processed by Respondent’s employees, and that because Dr. McNabola had an office in Respondent’s law firm, and never met [former client] Kinally, he consequently was an alter-ego for Respondent.

On December 27, 2012, Judge Mason denied the plaintiff’s motion for summary judgment and granted defendant’s motion for summary judgment holding that the promissory notes were “contrary to public policy and unenforceable.” In rendering her ruling, Judge Mason stated as follows that “Lawyers cannot circumvent our ethical obligations by finding some loophole, and I think that if we allow close family members to act as surrogates to give loans to our clients… we are opening a Pandora ’s Box of problems.”

And he is alleged to have improperly issued a subpoena in a closed matter

In or about June 2012, Respondent fired attorney Jon Papin (hereinafter “Papin”) from employment with Cogan & McNabola, P.C.

On or about July 2, 2012, Cogan & McNabola, P.C. dissolved and Cogan left the firm. Cogan started a new firm with a colleague called Cogan & Power P.C. (hereinafter “Cogan & Power”). Thereafter, in July 2012, Papin began working for Cogan & Power.

After July 2, 2012, Respondent grew suspicious that his paralegal, Lauren O’Keefe (hereinafter “O’Keefe”) was in communication with Papin. Bad blood had developed between Respondent and Papin.

Between July 2012 and October 2012 Respondent continually asked O’Keefe, who was still in his employ, to allow Respondent access to her personal gmail account and text messages, to verify whether she was communicating with Papin. O’Keefe refused to allow Respondent access to her personal gmail account or text messages.

On October 12, 2012, Respondent caused a subpoena to be issued to Apple, Inc. on case number AAA Arbitration #51 194 Y 01022 11 for any typed text messages or iMessages between O’Keefe’s personal cell phone number and numbers thought to be associated with Papin.

The subpoena referred to …above, was issued in the Circuit Court of Cook County and commanded Apple, Inc. to produce the documents referred to in paragraph above.

Respondent’s conduct in issuing a subpoena on a matter that had already resolved was improper and dishonest, as the arbitration matter had been closed as of May 1, 2012 and was not an active case, and Respondent knew it was improper and dishonest and that he could not issue a subpoena under that closed matter number.

Respondent caused the subpoena to issue in order to deceive Apple into producing records that Respondent otherwise would not be able to obtain. Respondent had an ulterior motive for obtaining the records, in that he wanted to determine information about communications between Papin and O’Keefe which he had not been able to obtain through O’Keefe.

On or about late October 2012, as a result of O’Keefe’s accidental receipt of a phone call on her cell phone from AT & T about the subpoena for her cell phone records, O’Keefe became aware of Respondent’s attempt to surreptitiously obtain her cell phone records and was able to halt production of the records.

(Mike Frisch)