Practice Pointer: Do Not Hit Send

An Illinois Hearing Board has proposed sanctions for a series of emails 

Respondent engaged in misconduct when she sent multiple emails to a magistrate judge and her law clerk containing false or reckless statements impugning the judge’s integrity. Based on the pattern of misconduct, the factors in aggravation, the minimal factors in mitigation, and the relevant case law, we recommend that Respondent be suspended for nine months, with the suspension stayed after six months by six months of probation.

Findings

Barry Epstein hired Respondent in 2012 to represent him in a dissolution proceeding filed by Paula Epstein. In 2014, Respondent filed a complaint on Barry’s behalf in the United States District Court for the Northern District of Illinois, alleging that Paula and her attorney, Jay Frank, violated federal law by accessing Barry’s private emails without his authorization. (Tr. 55). Magistrate Judge Sheila Finnegan (Judge Finnegan) supervised discovery in the federal proceeding. Judge Finnegan maintained an email account known as the “proposed order account”.

The charges before us arise from three email messages Respondent sent to the proposed order account and others involved in the Epstein proceedings. (Tr. 56). Respondent sent the first email at issue on April 18, 2017, after Judge Finnegan denied her emergency motion for an extension of time to take Paula’s deposition. Respondent sent the email to the proposed order account, opposing counsel Scott Schaefers, and Scott White, the courtroom deputy. It stated as follows in relevant part:

Today in court, no matter what I said to you, you had already made up your mind, and even questioned my sincerity with regard to my preparation for upcoming trial.
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. . . since the beginning, you never seem to doubt anything he [Schaefers] says, as you appear to doubt me. Still, I stated to you in open court that “I don’t want to be hated” for doing my job, but it sure seems that way, as I never get a break. Scott is the lucky guy who senses same as he can just pick up the phone to call you knowing he will get his way…or for so-called the Posner Defense2
.
***
It’s not fair that my client (and I) is [sic] being treated badly for suing his wife/ex wife, and everyone is protecting Paula – why? Since when does “two” wrongs make a “right”? [sic] How am I to prove my case if I am not given a fair chance to do my work, properly. (Adm. Ex. 1).

The following day, Judge Finnegan instructed Respondent that the parties were not to use the proposed order account to argue the merits of a motion, share their feelings about a ruling, or talk generally about the case with her. She told Respondent her email was improper and directed her not to send any such emails in the future. (Adm. Ex. 1). Respondent received and understood Judge Finnegan’s instructions. (Tr. 69-70)

After a motion to extend discovery was denied, this email was copied to the proposed order account

I’m very upset, I do not agree with Judge Finnegan’s order and I will depose the former co-defendant, Jay Frank, despite the fact this court is protecting him and his co-conspirer! Scott Schaefers had no standing to challenge my subpoena to depose Jay Frank! I’m entitled to depose him! And I will call him to testy [sic] at trial to show the world what a corrupt lawyer he is! And the judges who protect this criminal by squeezing the discovery deadlines!!! No no no!

This is outrageous order of Judge Finnegan and it will be addressed accordingly!

Judges are helping the criminal to escape punishment by forcing to shorten all deadlines!!!

This Judge is violating my client’s rights first by the truncated discovery deadlines and now helping Plaintiff to escape punishment for wrongs she committed!

I’m outraged by the miscarriage of justice and judges are in this to delay and deny justice for my client!

I’m sickened by this Order!!!

Later

Plaintiff’s motion is not late just because this court decided not to extend discovery deadlines, to protect the Defendant! I have asked this court numerous times for an extension of all cutoff deadlines, without avail. Take this into account when drafting your flawed order.
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For anyone to insult me in this degree calls questions [sic] this court’s sincerity and veracity. How dare you accuse me of not having looked at the SC docket regularly.
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How do you know I did not see the SC order???? Where do you get this information? Exparte communications with Defendant’s attorney, Scott? – smearing dirt behind my back?

The more I read this order, again and again, I am sick to my stomach, and I get filled with anger and disgust over this ‘fraudulent’ order by this court!
***
You both, Allison and J. Finnegan, have done me wrong, and depicted me very poorly in your public order. How dare you do that to me?!

What goes around comes around, justice will be done at the end! I wonder how you people sleep at night? Including Scott!

She was admonished by the judge.

In the bar proceeding

Respondent acknowledged it was wrong to send the emails but presented numerous explanations for her conduct. She testified she was under a great deal of stress due to a short discovery schedule in the federal case, her client’s abusive behavior, and a dispute with a former partner. (Tr. 190-91, 213-217). She further testified she made poor word choices because English is not her native language and she wrote the emails “in the heat of the moment” when she felt the court was insulting her. In addition, she testified that the purpose of the proposed order account was unclear. (Tr. 164, 292). With respect to the second and third emails, she did not think she was violating Judge Finnegan’s directives because she addressed the emails to Judge Finnegan’s law clerk rather than to Judge Finnegan. (Tr. 68, 77)

The hearing board concluded that a period of suspension was required.

Due to the serious nature of the misconduct and the substantial aggravating circumstances, we conclude that a period of suspension is warranted. Although the misconduct was limited to one matter, it is significant that Respondent knowingly defied Judge Finnegan’s directives and used language that was not only inappropriate and unprofessional but threatening. We believe it is necessary to recommend a sanction that will deter Respondent and other attorneys from engaging in such conduct in the future.

We do not agree with Respondent that no suspension is warranted because the federal court already suspended her for the same misconduct. While we take that fact into consideration, we also note that the federal discipline did not affect Respondent’s state practice. For this reason, the previous sanction was not the equivalent of a suspension from the Illinois Supreme Court.

The board rejected the Administrator’s request to have a suspension remain in place until further court order. (Mike Frisch)