Southern Exposure (Or Not)

An Illinois Hearing Board recommends a four-month suspension for a conflict of interest and related violations

Respondent represented a restaurant and four of its employees charged with violating a municipal ordinance, based on the employees’ attire at work. Respondent entered pleas that the restaurant and the employees violated the ordinance, and the restaurant paid the fines. Respondent did not fully inform the employees of their rights and options or the disposition of the charges. The employees denied meeting Respondent. During the ARDC’s investigation, Respondent stated that he met once with each employee and all of them authorized Respondent to act on their behalf.

The Hearing Board found that Respondent failed to properly consult with his clients, failed to properly communicate with his clients, and improperly represented clients despite a conflict of interest. There was not clear and convincing evidence that Respondent made false statements to the Administrator. The Hearing Board recommended that Respondent be suspended for four months and required to successfully complete the ARDC’s Professionalism Seminar.

The “attire at work” issue

A local ordinance prohibited persons from exposing their buttocks while acting as a waiter, waitress or entertainer in a business with a liquor license. A restaurant retained Respondent to represent it and four of its servers on charges of violating that ordinance and agreed to pay any fines imposed on the servers if they were found to have violated the ordinance. Without fully informing the servers of their rights and options, Respondent entered pleas admitting that the restaurant and the servers violated the ordinance. Respondent thereby failed to properly consult with his clients concerning the objectives of the representation, failed to properly inform and explain matters to his clients, and improperly represented clients despite a conflict of interest.

Respondent “represented Front Burner Restaurants and its subsidiary, the Twin Peaks restaurant chain, over time”

Police reported seeing four servers, Sarah, Briana, Kaitlin and Allison, dressed in a way that left most of their buttocks exposed. The servers put on additional clothing or otherwise covered their buttocks. However, police issued citations to Twin Peaks and those four servers. The citations directed the person cited to appear, on March 14, 2017, at a specified time and place. According to police, all persons cited were advised of the mandatory court date.

He was retained by Twin Peak’s general counsel

Respondent pled Twin Peaks and the servers liable to the citations. The hearing officer found all five liable for violating the ordinance and imposed fines, of $250 on the restaurant and $100 on each server. The agreement also encompassed two citations arising out of two other, unrelated incidents, for which the hearing officer also entered findings of liable and imposed fines. Twin Peaks paid all the fines.

The servers did not smile

None of them ever met with Respondent or expected that anyone would admit to the charge on their behalf. Given the opportunity, Sarah, Briana and Allison each would have sought to present a defense. All three considered any violation the restaurant’s responsibility, not hers, as she was dressed as her employer required. Further, Briana was unaware of the prior police warning. Sarah testified that management told the servers to wear the lingerie despite that warning. While Allison and Briana indicated otherwise, Morales believed that all servers were clad in compliance with the ordinance, and Sarah denied that any portion of her buttocks was exposed. According to Morales, photographs of the servers with their buttocks covered depicted how they were dressed when police arrived on February 11, 2017.

Duty to communicate

Based on Respondent’s testimony, after March 9, 2017, he relied on Twin Peaks Orland Park managers to communicate with the servers. However, an attorney cannot rely on an intermediary to discharge the attorney’s duties to communicate with clients.

Concurrent client conflict

That type of conflict clearly was present here. The only result beneficial to both the restaurant and the servers, dismissal of the citations, was unlikely at best. Huguelet’s position effectively foreclosed that option. In a contested hearing, the restaurant’s only possible defense was to claim the servers’ buttocks were fully covered. However, the police report and some of the servers contradicted that claim. The restaurant might have faced higher fines, if found liable for violating the ordinance after a contested hearing. The servers, however, were in a different position and might have been able to convince a hearing officer that they should not be held liable for personally violating the ordinance. Sarah, Briana and Allison expressed a desire to have presented a defense and articulated reasons, some of which involved the restaurant’s behavior, why she did not believe she violated the ordinance. To the extent that Respondent considered defenses potentially available to the servers, he summarily dismissed them. Respondent also did not address with the servers what, if any, recourse they might have against the restaurant, for having them dress in a manner that, arguably, violated the ordinance. Instead, Respondent proceeded to dispose of all the citations, in a manner satisfactory to the restaurant.

False statements to the Administrator were not proven

Certain factors caused us to question at least portions of the testimony from the servers and Morales. Sarah is a party in a pending lawsuit against Twin Peaks, which includes issues as to the way the restaurant handled the citation at issue here. Allison signed an affidavit which directly contradicted portions of her testimony. Her explanations for those contradictions were not credible. Briana impressed us as sincere, but her testimony suggested that she may not have accurately remembered all the circumstances. Morales may have been biased given Twin Peaks’s termination of his employment, even though Respondent was not involved in that termination. In addition, there were inconsistencies in the testimony from these witnesses. For example, Morales stated that he never communicated with Respondent after March 9, 2017, but also stated that he received updates to pass on to the servers. The police report, and language on the citations, contradicted the servers’ testimony that they were never informed of the March 14 hearing date or that they needed to appear.

Respondent was admitted in 1986 and has no prior discipline. The hearing board found a number of mitigating factors. (Mike Frisch)