Cover Up Makes Matters Worse
An Illinois Hearing Board has recommended a two-year suspension and until further order
Michael and Laura Ambrose testified that they met with Respondent on or about September 20, 2019, and signed a retainer agreement for his representation in three legal matters: seeking redress for a faulty hot tub and related concrete damage, a dispute with a jewelry store about a diamond ring, and a dispute with a financial services company about a variable universal life insurance policy. (Tr. 33-36, 40-43, 88, 92-94). Michael paid $1,545 for filing and service fees, with a 33% contingent arrangement for Respondent’s fees. (Ans. at par. 3; Tr. 34, 36-37, 43). Michael understood that Respondent was going to send demand letters to all three companies.
Violations found
We find that the Administrator proved by clear and convincing evidence that Respondent engaged in dishonest conduct by knowingly backdating the client letter that the Ambroses found in their mailbox in January 2023, falsely stating in the letter that he had included Michael’s entire client files, making the letter appear to have been damaged and delivered by the U.S. Postal Service, and falsely stating to the Administrator that he mailed Michael his entire client files. We find that Respondent’s conduct violated Rules 8.4(c) and 8.1(a).
Computer savvy
We reject Respondent’s argument that the closing letter could not have been backdated because he was not a skilled computer user. It takes only basic word processing skills to type an earlier date at the top of a document, and, as further discussed in Section III, Respondent failed to produce the subpoenaed computer that contained evidence of the document’s actual creation date. We reject Respondent’s argument that his photographs of file data with December 20, 2022, time stamps established that he wrote and sent the letter to Michael that day. Based on Respondent’s demonstrated untruthfulness, and in the absence of the computer in question, we decline to give credence to the contention that the photographed file data correlated with the letter the Ambroses found in their mailbox in January 2023.
False statement
A lawyer shall not knowingly make a false statement of material fact in connection with a disciplinary matter. Ill. R. Prof’l Cond. R. 8.1(a). The Administrator charged Respondent with violating this Rule by falsely stating in his written response dated January 17, 2023, that he mailed Michael his entire client files on December 20, 2022. We find that the Administrator proved by clear and convincing evidence that Respondent violated Rule 8.1(a).
Failure to comply with subpoena for Respondent’s computer
Respondent admitted that he knowingly withheld the requested computer equipment. He insisted that this was legally mandated because compliance with the subpoena would violate his duty of client confidentiality under Rule 1.6, as well as his duty to protect privileged attorneyclient communications and work product. He cited the United States Constitution and various cases and statutes that provide protections for individuals’ personal information, such as health records and political associations. He urged us to find that these laws excused his non-compliance with the subpoena, in accordance with the Rule 8.1(b) exception…
However, this substantive defense to the subpoena’s enforceability is not an issue for the Hearing Board to decide. Rather, Respondent should have filed a motion to quash in the circuit court and demonstrated to that court good cause for why he should not have to comply. 735 ILCS 5/2-1101; Ill. S.Ct. R. 754(e). Respondent was aware of this procedure, having filed motions to quash during his 24-year career as an attorney. Moreover, Respondent cited a case in which this procedure was used to successfully argue an attorney-client privilege defense.
Unprofessional behavior in the bar hearing was treated as an aggravating factor
Additionally, during the hearing, Respondent disclosed confidential and privileged information about at least four of his clients. While explaining his whereabouts in January 2023, he presented a page from his office calendar. Referring to the clients by name, he testified about the topic of two clients’ court cases and another client’s meeting with him on January 12, 2023.
Sanction
Respondent engaged in an extensive course of serious misconduct between September 2019, when Respondent started representing the Ambroses, and January 2023, just after their representation ended and the disciplinary investigation began. What started as neglect of the Ambroses’ three matters grew into a series of lies and deceptive acts as Respondent tried to hide his misconduct, implicating multiple aggravating factors that continued into 2024 during his interactions with the Hearing Board.
…we find aggravating Respondent’s selective assertion of client confidentiality and attorney-client privilege, depending on whether hiding or sharing client information benefitted him. Respondent claimed that he could not ethically comply with the subpoena for his potentially inculpatory hard drive because he had to protect the client information it contained. But then Respondent voluntarily disclosed details about at least four different clients while defending himself at the hearing. This conduct undermines the genuineness of Respondent’s defenses to Count III and instead reveals his dishonest and selfish motive for failing to produce his computer.
Cover up worse than offense
Had Respondent accepted responsibility for neglecting the Ambroses’ matters when confronted by his clients and later the Administrator, we would not be recommending such a severe sanction. Instead, Respondent chose to cover up and blame others for his mistakes, engaging in a deceptive and selfish course of conduct against his clients, the Administrator, and the Hearing Board. In accordance with relevant case law and based on the serious misconduct and several substantial aggravating factors, which are not outweighed by the limited mitigating factors, we recommend that Respondent, Thomas Gordon Maag, be suspended for two years and until further order of the Court.
(Mike Frisch)