Largely Absolved

An Illinois Hearing Board largely absolved an attorney accused of multiple instances of unethical conduct.

We had previously reported on the charges and amended charges in the matter.

The report discusses the standards applied to an accused attorney’s motion for a directed verdict

At the close of the Administrator’s case in chief, Respondent moved for a directed finding on all of the charges of misconduct. The ruling on a motion for directed finding is a two-step process. The Hearing Panel must first determine whether the Administrator presented sufficient evidence to establish a prima facie case by presenting at least some evidence on every element necessary to prove the alleged misconduct. The Hearing Panel will grant a motion for directed finding if the Administrator failed to establish a prima facie case. If the Hearing Panel determines the Administrator established a prima facie case, it must then determine whether all the evidence presented, including evidence favorable to the Respondent, is sufficient to prove the misconduct by clear and convincing evidence. Judgment should be entered for the Respondent only if, after the weighing process, the Panel determines the evidence is not sufficient to meet the Administrator’s burden of proof.

Synopsis of findings

During a trial, a courtroom clerk disclosed the contents of a jury note to Respondent. He did not inform opposing counsel or the court of the disclosure. The Administrator charged Respondent with engaging in an improper ex parte communication and dishonest conduct. The Hearing Board directed findings in Respondent’s favor on these charges.

In a different matter, Respondent referred a client to his father for a loan. Respondent’s father made ten loans to the client. After Respondent’s representation ended, he provided a memorandum to the client’s worker’s compensation attorney outlining the amounts the client owed to Respondent’s father. When the client failed to repay the loans, one of Respondent’s partners represented Respondent’s father in a collection lawsuit against the former client. The Hearing Board found that Respondent represented a client when the representation was materially limited by his responsibilities to a third person or his own interests. The Hearing Board did not find clear and convincing evidence that Respondent provided financial assistance to the client, improperly disclosed information to the client’s disadvantage in the memorandum, or was involved in the representation of his father in the collection lawsuit.

The Administrator further charged Respondent with providing financial assistance to clients and acting dishonestly by allegedly directing a paralegal at his firm to make loans to clients and then reimbursing the paralegal in cash for the loan amounts. The Hearing Board directed findings in Respondent’s favor as to these charges.

Following a dispute with his former partners that went to arbitration, Respondent issued a subpoena for an employee’s cell phone records under the caption of the closed arbitration matter. The Hearing Board found that, in doing so, Respondent made a knowing misrepresentation. There was not clear and convincing evidence that Respondent’s conduct resulted in actual prejudice to the administration of justice.

Based on the proven misconduct and significant evidence in mitigation, the Hearing Board recommended that Respondent be censured.

(Mike Frisch)