Read The Case

An Illinois Hearing Board proposes a reprimand of an attorney

The Administrator proved that Respondent violated Rule 3.1 by filing the four slander of title claims without a basis in law and fact to do so. However, the Administrator failed to prove that Respondent knowingly made false statements to a court and therefore failed to prove that he violated Rule 3.3(a)(1).

Respondent testified that he had little litigation experience

Respondent then had an opportunity to rectify his mistake after Mathless sent him an email informing him about the Ringier case, which provides that lis pendens are absolutely privileged in Illinois and demanding that he dismiss the slander of title actions. We believe that, at that point, a reasonably prudent attorney at the very least would have read the Ringier case to determine whether Mathless’s argument had any merit. But, according to Respondent, he did not do so. Instead, he merely reviewed his notes on the Kurtz case – apparently, based on his testimony, he did not even re-read the case itself – and told his law firm partners that his research supported their position. We find this course of conduct to be objectively unreasonable, particularly given that the Kurtz case cited to Ringier and a re-reading of it would have demonstrated to Respondent and his colleagues that Mathless was correct that the slander of title actions were, in fact, without legal basis.

That Respondent’s firm eventually argued for a modification of existing Illinois law does not change our analysis. Respondent and his colleagues did not raise that argument until after the motions to dismiss were fully briefed, which strikes us as too little, too late in the context of Rule 3.1, pursuant to which we consider what was reasonable for an attorney to believe under the circumstances at the time of filing.

False stements not proven

We accept as credible Respondent’s testimony that, while he made a serious mistake by misstating a case in his pleadings and response brief, it was not intentional, and he did not realize his mistake until the defendants in the slander of title matters filed their replies in support of their motions to dismiss. We also note that Allen Shapiro’s testimony corroborated Respondent’s testimony that Respondent made a serious but unintentional error.

We also accept as credible Respondent’s testimony that he was inexperienced in litigation, and that the only litigation he had handled in the past involved building code violations. Moreover, we find it clear from the evidence that Respondent lacked oversight from his firm. Both Respondent and his firm should have recognized that he was not sufficiently experienced in litigation to represent clients in a complex and hotly contested litigation matter. But their error in judgment does not render Respondent’s erroneous cites to Kurtz knowingly false.

Sanction

Having considered the nature of Respondent’s misconduct, the compelling mitigation and lack of aggravation, and relevant precedent, we conclude that a reprimand is an appropriate sanction. Respondent is a conscientious attorney who practiced for 37 years without discipline, and is genuinely remorseful for his misconduct. We do not believe that his continued practice of law poses any risk to the public or legal profession, and therefore find that a suspension is neither necessary nor appropriate. We find a reprimand to be sufficient to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach.

(Mike Frisch)