Justia.com Opinion Summary: The attorney, admitted to practice in Illinois in 1969, was the subject of a 2004 Illinois Attorney Registration and Disciplinary Commission complaint following convictions relating to driving under the influence of alcohol and driving while his license was revoked. The state Supreme Court issued an order suspending him from the practice of law for a period of 18 months, and ordering him to reimburse the Disciplinary Fund for any client protection payments arising from his conduct. In 2007 the ARDC charged him with misrepresentation to a tribunal and engaging in the unauthorized practice of law during his suspension. The Hearing Board found proven misconduct and recommended suspension for two years, but the Review Board recommended dismissal of the charges. The Supreme Court suspended him for one year. While the violations primarily involved representation of the attorney's own bankrupt company and occurred within days of the suspension, the attorney attempted to conceal the misconduct and refused to admit wrongdoing.
Receive FREE Daily Opinion Summaries by Email Court description: The attorney in this disciplinary proceeding was charged in 2007 with two counts
of unauthorized practice of law and one count of misrepresentation to a tribunal, all
stemming from the manner in which he handled a previously imposed 18-month
suspension which began October 17, 2005. That earlier suspension had arisen from
his convictions for two charges of misdemeanor driving under the influence of
alcohol, one charge of misdemeanor driving on a revoked license, and three felony
charges of driving on a revoked license, all of which he failed to report to the
Attorney Registration and Disciplinary Commission as required.
The complaint in the instant action was filed October 17, 2007, alleging that, after
the effective date of his earlier suspension, the attorney engaged in the unauthorized
practice of law in the circuit court of Du Page County, that, during his earlier
suspension, he engaged in unauthorized practice before the United States Court of
Appeals for the Seventh Circuit, and that he made misrepresentations to the United
States Bankruptcy Court for the Northern District of Illinois. The Hearing Board
found that misconduct had been proved and recommended suspension for two years.
The Review Board recommended dismissal of all the charges, but the Administrator
filed exceptions.
In this decision, the Illinois Supreme Court did not agree with what the Review
Board had done. As to the alleged misrepresentation to the bankruptcy court, the
supreme court did not reach the issue of whether there was “materiality” because this
would not affect the decision as to the proper form of discipline and because the
remaining counts are a sufficient basis for imposing discipline. As to his appearance
before the Seventh Circuit, although the attorney contended otherwise, the supreme
court said that it was “undisputed that respondent engaged in conduct that constituted
the practice of law while his license was suspended ***. These acts were not
inadvertent, they were intentional. The effect *** was to perpetrate a fraud up on the
court.” Thus, he is subject to discipline. As to the circuit court of Du Page County,
the supreme court said that it is undisputed that he practiced law there by his
appearances after the effective date of his suspension. The supreme court concluded
that the respondent violated the Rules of Professional Conduct and, in addition, that
his unauthorized practice of law involved dishonesty or misrepresentation. The
supreme court said that, if respondent attorney had any doubts about his status, he
could have resolved them by placing a phone call to the Supreme Court clerk’s
office.
The supreme court suspended the attorney from the practice of law for one year
and directed that he notify all other jurisdictions in which he is licensed.
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2012 IL 113035
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 113035)
In re ROBERT C. THOMAS, Attorney-Respondent.
Opinion filed January 20, 2012.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1
The Administrator of the Attorney Registration and Disciplinary
Commission (Commission) filed a three-count complaint against
respondent, Robert C. Thomas, charging him with misrepresentation
to a tribunal and two counts of unauthorized practice of law. The
Hearing Board found that the Administrator had proven misconduct
and recommended respondent be suspended from the practice of law
for two years. Respondent timely filed exceptions with the Review
Board, which recommended dismissal of the charges. The
Administrator filed a petition for leave to file exceptions with this
court, pursuant to Supreme Court Rule 753(e)(1) (Ill. S. Ct. R.
753(e)(1) (eff. Dec. 1, 1995)), which we allowed.
¶2
¶3
¶4
¶5
¶6
¶7
BACKGROUND
Respondent was admitted to practice in Illinois in 1969. He left
the practice of law for a time, serving as president and chief executive
officer of a steel company. He returned to the practice of law in 1998.
In 2004, the Administrator filed a six-count complaint alleging
that respondent had been convicted of two charges of misdemeanor
driving under the influence of alcohol, one charge of misdemeanor
driving while his license was revoked, and three felony charges of
driving while his license was revoked. In each instance the
Administrator also alleged that respondent failed to report his
conviction to the Commission in violation of Supreme Court Rule
761(a) (Ill. S. Ct. R. 761(a) (eff. July 1, 1984)). In addition, the
Administrator charged that respondent neglected a client’s declaratory
judgment action. The Hearing Board found that the Administrator had
proven the misconduct alleged in five of the six counts. As to the
sixth count, neglect of a client matter, the Hearing Board found that
some of the allegations had been proven. The Review Board affirmed.
On September 26, 2005, this court issued an order suspending
respondent from the practice of law for a period of 18 months,
effective October 17, 2005, and ordering him to reimburse the
Disciplinary Fund for any client protection payments arising from his
conduct.
On October 17, 2007, the Administrator filed the present threecount complaint. Count I alleged misrepresentation to a tribunal,
specifically the United States Bankruptcy Court for the Northern
District of Illinois. Count II alleged that respondent engaged in the
unauthorized practice of law before the United States Court of
Appeals for the Seventh Circuit during his suspension. Count III
alleged that he engaged in the unauthorized practice of law in the
circuit court of Du Page County after the effective date of his
suspension.
Count I
Count I involves a matter that occurred prior to respondent’s
suspension. In 1998, Thomas Consolidated Industries (TCI), a
corporation of which respondent was president and sole shareholder,
purchased a tool and die shop from Juergen and Trudy Herbst, who
continued to own the property where the business was located. Later,
the Herbsts filed a forcible entry and detainer action against TCI. In
1999, TCI filed for bankruptcy. Respondent at times represented the
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¶8
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¶ 10
bankruptcy trustee and, in 2001, he filed an adversary proceeding on
behalf of the trustee against the Herbsts and others, alleging breach
of contract, fraud in the inducement, and other claims.
Discovery was a long, drawn-out process. According to the Herbst
defendants, respondent refused to comply with requests for
production of documents and to answer their interrogatories. In
January 2004, the Herbsts filed a motion to compel, alleging that
respondent had failed to adequately respond to their discovery
requests. On March 8, 2004, the bankruptcy court ordered respondent
to comply by April 30, 2004. On May 10, 2004, the Herbsts filed a
motion for sanctions, alleging, in part, that respondent had not
complied with the court’s March 8 order. A hearing on the motion
was set for May 13, 2004.
On May 12, 2004, however, the Herbsts’ attorney received an
overnight delivery package from United Parcel Service (UPS)
containing the outstanding discovery responses. Attached to the
discovery documents was a signed certificate of service, in which
respondent stated that the materials had been sent “by U.S. mail
postage prepaid” on “May 7, 2004.” At the May 13 hearing, the
Herbsts’ attorney stated that the materials received the previous day
were “inadequate, incomplete, and non-responsive” to the discovery
requests. In addition, she stated that she checked the package’s
tracking number on the UPS website, which indicated that UPS had
received the package on May 11, 2004, for overnight delivery and
delivered it to her on May 12, 2004. That is, respondent not only sent
the discovery materials after the April 30 deadline, he appeared to
have sent them after the Herbsts’ attorney filed the motion for
sanctions. On May 27, 2004, the Herbsts filed an amended motion
stating that the documents received on May 12 were certified by
respondent to have been mailed on May 7. The amended motion also
incorporated the UPS tracking information.
After another hearing on August 5, 2004, the bankruptcy court
ruled on the Herbsts’ motion for sanctions. At that hearing,
respondent stated “for the record,” that he delivered the materials on
May 7 “to the UPS store for copying and mailing. They mailed the
material from the UPS store.” Referring to the certificate of service,
he stated that “[t]here was nothing false, or inadvertent, or misleading
in the statement.” At the conclusion of the hearing, the court granted
the motion for sanctions, dismissing the case with prejudice based, in
part, on respondent’s failure to comply with the March 8, 2004,
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¶ 11
¶ 12
discovery order. In doing so, the court stated “[w]hat appears from the
record is that you sent off your responses to discovery via UPS on
May 11th and lied about when you did it. Now lie is a strong word
and I use it here advisedly. At the very least, you asserted
contradictory positions.”
Respondent filed a notice of appeal with the United States district
court, which affirmed the dismissal of the complaint with prejudice
as a sanction for violation of the discovery order. In this appeal,
respondent, as counsel for the bankruptcy trustee, “did not challenge
the finding[s] that [he] lied to the court, and that [he] served the
discovery responses only after receiving the motions for sanctions.”
In re Thomas Consolidated Industries, Inc., 456 F.3d 719, 724 (7th
Cir. 2006).
In the subsequent appeal to the Seventh Circuit, the court rejected
respondent’s argument that the date on which he tendered the
discovery materials was “irrelevant” to the issue of the propriety of
dismissal as a sanction. The court stated that respondent’s lie about
when and how he served the discovery responses “went to the heart
of the [bankruptcy] court’s order.” Thomas Consolidated Industries,
456 F.3d at 726. Further:
“Although he conceded that the responses were late in
coming, he did not concede what was obvious to this court
and to the courts below, that [he] failed to tender any
responses until after the motion for sanctions was filed on
May 10. His lie was calculated to make the court believe that
he substantially complied with the court’s order without the
threat of the sanctions motion. Perhaps he hoped to persuade
the court to enter a less severe sanction; perhaps he hoped to
avoid sanctions entirely. But the lie was so obviously related
to the failure to comply with the order that the connection did
not merit express mention below. Because this is the focus of
[TCI’s] argument, we make express what the courts below
implied: the lie about when and where the responses were
tendered was evidence of a bad faith breach of the court’s
discovery order. Moreover, the courts below did not rely
solely on Thomas’ lies for a showing of bad faith, but relied
in part on the fact that he repeated the same non-responsive,
inadequate answers that the bankruptcy court expressly
warned him were unacceptable. This blatant disregard of the
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¶ 13
¶ 14
¶ 15
bankruptcy court’s order was more than sufficient to
demonstrate the bad faith finding that justified dismissal.” Id.
In the complaint, the Administrator charged that respondent’s
statements in the certificate of service and in the hearing before the
bankruptcy court were false and that respondent knew or should have
known that they were false, because he did not deposit the discovery
responses in the “U.S. mail” on May 7, 2004; rather, he placed the
materials with UPS for delivery on May 11, 2004. This conduct, the
Administrator charged, constituted a violation of Rule 3.3(a)(1) of the
Illinois Rules of Professional Conduct (Ill. Rs. Prof’l Conduct
R. 3.3(a)(1) (eff. Aug. 1, 1990) (making a “false statement of material
fact or law to a tribunal”)). In addition, the Administrator charged that
this conduct violated Rule 8.4(a)(4) (Ill. Rs. Prof’l Conduct
R. 8.4(a)(4) (eff. July 1, 1990) (conduct involving dishonesty, fraud,
deceit, or misrepresentation)), and Rule 8.4(a)(5) (Ill. Rs. Prof’l
Conduct R. 8.4(a)(5) (eff. July 1, 1990) (conduct prejudicial to the
administration of justice)).1 Thus, the Administrator argued,
respondent was subject to discipline under Supreme Court Rule 770
(Ill. S. Ct. R. 770 (eff. Apr. 1, 2004) (conduct that tends to defeat the
administration of justice or to bring the courts or the legal profession
into disrepute)).
Count II
On August 13, 2004, after the bankruptcy court dismissed TCI’s
lawsuit against the Herbsts and others, the bankruptcy trustee filed a
notice of appeal with the United States District Court for the Northern
District of Illinois. The notice of appeal listed Louis Levit as the
attorney for the trustee and respondent as the former attorney. As
noted above, the district court affirmed the dismissal on May 11,
2005. The trustee in bankruptcy subsequently decided to abandon the
adversary claim. TCI, the underlying debtor, took over the action,
replacing the bankruptcy trustee as appellant. On June 9, 2005,
respondent filed a timely notice of appeal with the United States
Court of Appeals for the Seventh Circuit. He did not, however, file an
appearance as TCI’s attorney.
1
The Illinois Rules of Professional Conduct, adopted February 8,
1990, and effective August 1, 1990, which were in effect at the time of the
conduct at issue, have been repealed and replaced by the Illinois Rules of
Professional Conduct of 2010, effective January 1, 2010.
-5-
¶ 16
¶ 17
¶ 18
¶ 19
¶ 20
¶ 21
On November 28, 2005, he filed a “Motion for Extension of
Time” in the pending appeal. In that motion, he stated that he had
been “working on the brief” and would “continue to do so.” He also
stated that he was “in discussion” with counsel to represent TCI but
that if counsel could not be retained, he would complete the brief
within the time requested. He asked for an extension until December
28, 2005. He signed the motion as TCI’s president and shareholder,
not as its attorney. On December 29, 2005, respondent filed a second
“Motion for Extension of Time,” in which he attributed the delay to
difficulty in obtaining the record from opposing counsel. He again
stated that he had been “diligently working on the brief.” Again, he
signed the motion as TCI’s president and sole shareholder.
On January 3, 2006, the Seventh Circuit entered an order stating
that TCI, a corporation, could proceed only through counsel and that
because respondent was suspended, he could not represent the
corporation. In its order, the Seventh Circuit cited Scandia Down
Corp. v. Euroquilt, Inc., 772 F.2d 1423, 1427 (7th Cir. 1985) (stating
that “corporations must appear by counsel or not at all”). Respondent
thereafter retained counsel to finish the appeal.
In the complaint, the Administrator charged that at the time
respondent prepared and filed the two motions in the appeal before
the Seventh Circuit, he was suspended from the practice of law in
Illinois and in the Northern District of Illinois. Because respondent
was not capable of serving as counsel to the corporation of which he
was president and sole shareholder, the complaint alleged a violation
of Rule 5.5(a) of the Illinois Rules of Professional Conduct
(practicing in a jurisdiction where doing so violates the regulation of
the legal profession in that jurisdiction). In addition, the
Administrator charged violations of Rules 8.4(a)(4) and (a)(5) and
Supreme Court Rule 770.
Count III
Prior to his suspension, respondent represented Mervyn and
Mercedes Phillips, the defendants in a citation proceeding brought by
CIB Bank in the circuit court of Du Page County. He did not notify
his clients, the circuit court, or opposing counsel of his pending
suspension.
Three days before his suspension was to take effect, respondent
filed a “petition for hearing/rehearing,” which this court construed as
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¶ 22
¶ 23
¶ 24
¶ 25
¶ 26
a motion for reconsideration. This court ordered the Administrator to
respond to the motion.
On October 19, 2005, two days after his suspension went into
effect, respondent appeared in the CIB Bank matter at a citation
hearing in the Lake County circuit court on behalf of a citation
respondent, Hillmoor Golf Club. The judge called respondent to the
bench and advised him that he was aware of the suspension order
with an effective date of October 17. Respondent advised the court
that the order was stayed.
Senior counsel for the Administrator sent a letter by regular and
certified mail to respondent on October 20, 2005, informing him that
under Supreme Court Rule 771(b), his suspension had become
effective on October 17 and that his “filing of a petition for rehearing
in this matter does not automatically stay or recall the court’s
mandate.” (Emphasis in original.) A copy of Supreme Court Rule
764, which lists the duties of disciplined attorneys, was enclosed. In
addition, the letter advised that the Commission had received
information from various sources that respondent continued to file
pleadings and appear in court on behalf of clients after the date of his
suspension and that, if true, this conduct “may violate various
provisions of the Rules of Professional Conduct.”
Respondent replied to this correspondence from the Administrator
by letter, stating that he filed his petition for rehearing pursuant to
Supreme Court Rule 367 (Ill. S. Ct. R. 367 (eff. Sept. 1, 2006)), and
that as a result, the order of suspension “is stayed until the Supreme
Court rules upon the petition.” He characterized the October 20 letter
as “threatening,” and stated that counsel for the Administrator had
“an unnatural desire to punish and harass him.” He accused John
Ropiequet, an attorney for the plaintiffs in the CIB case, of
threatening his clients and “undertaking to usurp the authority of the
Supreme Court.” He further suggested that the Commission
investigate Ropiequet and asked that the Commission “[p]lease keep
me informed.”
On October 26, 2005, respondent conducted the deposition of
Ropiequet and appeared with the Phillipses as their attorney as they
were deposed.
On that same date, counsel for the Administrator informed
respondent by letter that Supreme Court Rule 367 did not apply to his
suspension and directed him to Rule 771(b), which provides that a
petition for rehearing from a disciplinary order does not stay or recall
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¶ 28
¶ 29
¶ 30
the court’s mandate. Ill. S. Ct. R. 771(b) (eff. Apr. 1, 2004). The letter
further recommended that respondent contact the clerk of the
Supreme Court to resolve any doubt he might have regarding his
status. The telephone number for the clerk’s office was provided.
Finally, the letter informed respondent that:
“If you continue to hold yourself out as an attorney and
continue to engage in the practice of law, your conduct may
be deemed the unauthorized practice of law, and therefore
exposing [sic] you to criminal sanctions, contempt of court
and/or additional disciplinary proceedings. In addition, your
conduct may cause prejudice to your clients in that any rulings
made during a period of suspension may be deemed void by
the courts.”
This court denied respondent’s motion for reconsideration on
October 28, 2005.
An investigation was opened after the Commission received a
report from attorney Ropiequet. After looking into the matter, the
Administrator advised Ropiequet that “upon our communications
with him, Mr. Thomas withdrew from the case at issue and has
ceased any representation in that matter. As a result, we have
determined that a formal disciplinary prosecution of Mr. Thomas is
unnecessary.”
On August 30, 2006, respondent was also advised by a letter from
counsel for the Administrator that the matter had been closed. The
letter specifically referred to Commission Rule 54, which provides
that the Administrator shall close an investigation when he concludes
“that there is insufficient evidence to establish that the respondent has
engaged in misconduct” and that such closure “shall not bar the
Administrator from resuming the investigation if circumstances
warrant.” Attorney Registration and Disciplinary Comm’n R. 54. On
July 18, 2007, counsel for the Administrator informed respondent that
the matter was being reopened in light of his continuing to practice
law in the matter before the Seventh Circuit.
In count III, the Administrator charged that respondent’s
participation in the October 26, 2005, depositions as attorney for the
Phillipses violated Rules of Professional Conduct 5.5(a), 8.4(a)(4),
and 8.4(a)(5) and Supreme Court Rule 770.
-8-
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¶ 32
¶ 33
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¶ 35
Hearing Board
Count I
Before the Hearing Board, respondent testified that he took the
discovery documents to the UPS store in Willowbrook, Illinois, on
May 7, 2004, for copying and mailing. He did not instruct the UPS
store that he wanted the documents to be copied and sent by United
States Postal Service that day. He assumed that the work would be
done that day and did not ask when or how the materials would be
sent. UPS did not give him a date. He further testified that after
copying the documents, the UPS store sent them to another UPS
facility in Addison, Illinois, for delivery. He had never been to the
Addison facility. He also admitted that his answers to the discovery
requests were due on April 30, 2004, and that he did not comply with
the discovery order. He explained that his strategy was to provoke the
bankruptcy court into imposing a discovery sanction so that he could
appeal and obtain a remand to a different judge.
The Hearing Board accepted as true respondent’s statement that
he took the discovery materials to the UPS store on May 7, 2004. The
tracking information obtained from the UPS website might be
explained by his delivery of the materials to the Willowbrook store
on May 7 and later delivery by UPS itself to the Addison facility on
May 11. In the absence of evidence explaining UPS procedures, the
Hearing Board found that the Administrator failed to prove that
respondent lied about the date on which he delivered the documents
to UPS.
Nevertheless, the Hearing Board concluded, he engaged in
misconduct by certifying that he sent the documents on May 7 by
United States Postal Service. The certificate was “wrong and
misleading” because the documents were not sent on May 7 and they
were not sent via “U.S. mail.” Respondent had no basis for making
these assertions; he did not have reasonable expectation that the
documents would be sent on this date or in this manner, and he did
not inquire about when and how they would be sent. Thus, “[b]y
completing and delivering the inaccurate certificate of mailing,” he
engaged in misconduct. If he did not lie, he “completed the certificate
of mailing with indifference to the truth.”
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¶ 36
¶ 37
¶ 38
¶ 39
¶ 40
¶ 41
Count II
Before the Hearing Board, respondent testified that he filed an
appearance in the appeal before the district court, but did not file an
appearance in the appeal before the Seventh Circuit. When he filed
the motions, he knew his law license had been suspended, but
believed he could represent his interests in the corporation pro se, as
its president and sole shareholder. He stated that he had reviewed the
Federal Rules of Civil Procedure and the rules of the Seventh Circuit
and found no federal or local rule prohibiting him from appearing on
behalf of the corporation pro se. He was not aware of the Scandia
Down case or other case law standing for that proposition.
The Hearing Board found the facts sufficient to prove that
respondent practiced law while his license was suspended. He
prepared and filed two motions and represented to the court that he
was working on the appellate brief. Although he stated that he
believed that he could represent the corporation pro se, he admitted
in a sworn statement that he did not research the question beyond
looking at the federal rules and that the law is clear that a corporation
must be represented by a licensed attorney. The Hearing Board also
rejected respondent’s defense that he lacked intent to violate the order
of suspension.
Count III
Attorney John Ropiequet testified before the Hearing Board that
he represented CIB Bank in the case in which respondent represented
the Phillipses. He stated that he was aware of the pending disciplinary
proceedings against respondent and that he was concerned about
concluding discovery by the November 1, 2005, deadline set by the
circuit court. He followed the progress of the disciplinary proceedings
and on October 18, 2005, he wrote to the Phillipses to inform them
that respondent had been suspended from the practice of law and that
they were no longer represented in the lawsuit. He also advised them
that, as a result, the depositions could not take place as scheduled.
With the November 1 discovery deadline looming, the depositions
would have to be rescheduled as soon as possible.
Ropiequet also testified that he received a telephone call from
respondent on October 20, 2005. Respondent informed him that his
clients would appear for their scheduled depositions and that he
would be taking Ropiequet’s deposition. He informed Ropiequet that
he had filed a petition for rehearing with the Illinois Supreme Court.
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¶ 42
¶ 43
¶ 44
¶ 45
Finally, he threatened that if Ropiequet ever contacted his clients
again, he would “punch your teeth down your throat, you little
bastard.” Thereafter, Ropiequet contacted the office of the clerk of the
Supreme Court regarding respondent’s status. He was informed that
respondent had filed a petition for rehearing, but that he remained
suspended from the practice of law.
He further testified that on November 9, 2005, he filed a motion
for a rule to show cause based on respondent’s suspension. In that
motion, Ropiequet argued that respondent’s unauthorized practice of
law showed contempt of court. The motion was accompanied by an
affidavit by Ropiequet regarding the telephone conversation and
transcripts of the depositions in which respondent participated. At the
hearing on the motion, respondent told that court that he had filed a
petition for rehearing and believed that his suspension was stayed,
pending a ruling on the petition. At that same hearing, a motion was
filed to substitute another lawyer as counsel for the Phillipses. The
circuit court denied the petition for a rule to show cause.
Ropiequet subsequently filed a request for a Commission
investigation of respondent’s continuing to hold himself out as an
attorney after the effective date of his suspension. He was informed
by counsel for the Administrator that because respondent withdrew
from representing the Phillipses, no formal disciplinary proceeding
was necessary.
Respondent told the Hearing Board that he filed a petition for
rehearing in the disciplinary matter. Because this court ordered the
Administrator to file a response to the petition for rehearing, he
believed that rehearing was under consideration and that, as a result,
his order of suspension was stayed pending this court’s ruling on the
petition. He stopped representing the Phillipses when this court
denied his petition for rehearing on October 28, 2005.
The Hearing Board found that respondent engaged in the
unauthorized practice of law when he conducted one deposition and
appeared on behalf of clients at two other depositions while his
license was suspended. The Hearing Board stated that “there can be
no question, and Respondent does not dispute” that he practiced law
in Du Page County after the suspension took effect. His belief that the
suspension was stayed pending a decision on his petition for
rehearing was contrary to the plain language of the applicable rule,
Supreme Court Rule 771(a), which states in pertinent part that: “No
petition for rehearing pursuant to Rule 367 may be filed in such a
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¶ 47
¶ 48
¶ 49
¶ 50
¶ 51
case, nor will any motion or other paper submitted after an order is
filed automatically stay or recall the court’s mandate.” Ill. S. Ct. R.
771(a) (eff. Apr. 1, 2004). Thus, the Hearing Board concluded,
respondent “had no reasonable basis to believe that the petition for
rehearing would have any effect on the suspension order.”
In sum, the Hearing Board found all three counts proven and
recommended that respondent be suspended from the practice of law
for two years.
Review Board
Before the Review Board, respondent did not challenge the
Hearing Board’s findings of fact, but he denied any misconduct. The
Review Board, therefore, proceeded with de novo review.
As to count I, the Review Board unanimously concluded that
respondent’s misstatements in the certificate of service “made no
difference to the proceedings before the bankruptcy court” and that
they “were not material misrepresentations.” Thus, there was
insufficient evidence of a violation of Rule 3.3(a)(1). In addition,
respondent’s mere indifference as to the truth of the information in
the certificate of service did not constitute dishonesty, fraud, deceit,
or misrepresentation under Rule 8.4(a)(4). There was also insufficient
evidence that respondent violated Rule 8.4(a)(5) or Supreme Court
Rule 770.
As to count II, the Review Board unanimously concluded that
reversal of the Hearing Board was required because the Administrator
failed to present evidence that respondent’s filings in the Seventh
Circuit violated the regulations of that licensing jurisdiction.
As to count III, respondent argued that under Commission Rule
54, a closed investigation may be reopened only if the Administrator
obtains additional evidence regarding the original charges. The
majority agreed, concluding that “[i]f the evidence was initially
insufficient to establish misconduct, the fact that there is evidence of
misconduct relating to another matter does not strengthen the
evidence in the first.” A majority of the Review Board agreed with
respondent that the Administrator improperly reopened an
investigation that had been closed in August 2006. Thus, the Review
Board did not address the merits of the Hearing Board’s finding of
misconduct.
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¶ 52
¶ 53
¶ 54
¶ 55
¶ 56
One member of the Review Board dissented as to count III,
finding that the circumstances warranted reopening of the earlier
investigation because the Administrator received information
showing that respondent’s unauthorized practice “was not the isolated
incident that he had first believed.” The dissenting member would
have found misconduct that violated Rules 5.5(a) and 8.4(a)(5) and
Supreme Court Rule 770.
A majority of the Review Board concluded that the unchallenged
facts did not demonstrate misconduct and recommended that all
charges be dismissed. The dissenting member would have found
misconduct under count III of the complaint and recommended
suspension for one year.
ANALYSIS
The Administrator raises three issues before this court and argues,
in addition, that the appropriate sanction for the totality of
respondent’s misconduct is suspension for three years. With regard
to count I, the Administrator argues that respondent’s
misrepresentations in the certificate of service were material and that
the Hearing Board’s findings were, therefore, correct. As to count II,
the Administrator argues that despite his claim to the contrary,
respondent did engage in the unauthorized practice of law before the
Seventh Circuit. As to count III, the Administrator argues that the
investigation into allegations of respondent’s unauthorized practice
in state court was authorized by Commission Rule 54.
In a disciplinary proceeding, the Administrator has the burden of
proving the allegations of the complaint by clear and convincing
evidence. In re Winthrop, 219 Ill. 2d 526, 542 (2006). The Hearing
Board’s findings of fact are reviewed by this court under a manifest
weight of the evidence standard, under which a factual finding will be
disturbed only if the opposite conclusion is clearly evident. Id. We
afford such deference to the Hearing Board because it is in the best
position to observe the witnesses, to assess their demeanor and
credibility, to resolve conflicting testimony, and to render fact-finding
judgments. Id. at 543. We review questions of law, including
interpretation of rules, de novo. In re Storment, 203 Ill. 2d 378, 390
(2002).
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¶ 57
¶ 58
¶ 59
¶ 60
¶ 61
Count I
The Hearing Board accepted respondent at his word that he
delivered the discovery materials to UPS on May 7. Although the
bankruptcy court reached the opposite result, concluding that
respondent lied about the date, we cannot say that its conclusion is
clearly evident. In addition, although the UPS tracking information
obtained by opposing counsel calls the truth of this statement into
question, the Administrator did not produce evidence from which one
could reasonably conclude that the materials were not taken to the
UPS store in Willowbrook on May 7. We, therefore, accept as fact
that respondent took the materials to the UPS store on May 7.
The other relevant facts are undisputed. Respondent signed a
certificate of service stating that he had deposited the discovery
documents with the United States Postal Service on May 7, 2004. He
did not, however, mail the documents on that date. Rather, he took
them to a UPS store for photocopying. In addition, the documents
were not deposited with the United States Postal Service by
respondent or by UPS. They were delivered to opposing counsel via
overnight delivery by UPS on May 12, 2004.
Thus, the certificate of service signed by respondent contained
two factual errors–the manner of transmission (United States Postal
Service versus UPS) and the date of mailing or shipping (May 7
versus May 11). Although, given the record before the Hearing
Board, we cannot conclude that respondent deliberately lied about the
date and manner of his compliance with the discovery order, it is clear
that he made false statements in the certificate of service. It was his
professional responsibility, as the lawyer signing the certificate, to
ensure that the statements made therein were true. Respondent had no
basis for believing that documents he dropped off at a UPS store for
photocopying would be copied and sent that same day. He did not
instruct the UPS store that the materials were to be copied and sent
that day. He did not even ask UPS personnel how long the copying
and preparation would take or when the package would be ready for
delivery. He neither asked how the package would be handled nor
instructed the UPS store to send the package via United States Postal
Service. Had he made these basic and reasonable inquiries, he would
have signed a certificate stating that the discovery materials were
deposited with UPS for copying and delivery on May 7, 2004.
The Administrator charged and the Hearing Board concluded that
respondent violated Rule 3.3(a)(1) because these statements were
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¶ 63
¶ 64
¶ 65
statements of material fact that the lawyer knew or reasonably should
have known were false and that he made them while appearing in a
professional capacity before a tribunal. The Review Board found the
statements, even if false, to be immaterial.
Before this court, the Administrator argues that the false
statements were material, given the context in which they were made.
Respondent had failed to comply with the bankruptcy court’s
discovery order and was facing possible sanctions. The bankruptcy
court concluded that these statements were not merely false, they
were deliberate lies intended to conceal the fact that his compliance
was not only late, but that he did not comply with the order until after
opposing counsel filed a motion for sanctions. Thus, the
Administrator argues, respondent’s misrepresentations were material
to the bankruptcy court, the federal district court, and the Seventh
Circuit, noting the sanction of dismissal with prejudice, which was
upheld on review.
Respondent argues that the Commission failed to plead and prove
materiality. He points to paragraph 10 of the complaint, which alleged
that respondent’s statements “were false and Respondent knew or
should have known they were false,” and paragraph 12(a), which
charges respondent with “making a statement of material fact that the
lawyer should have known was false while appearing in a
professional capacity before a tribunal” in violation of Rule 3.3(a)(1).
These allegations, he asserts, are insufficient as a matter of law.
We have not had occasion to define the term “material” in the
context of Rule 3.3(a)(1) and we are not inclined to do so in this case,
not because respondent is blameless, but because the remaining
counts are a sufficient basis for imposing discipline in this case and
because a violation of Rule 3.3(a)(1) in this manner would not affect
our decision as to the proper form of discipline.
That said, respondent knew or should have known that the
documents would not be sent to opposing counsel on May 7, 2004,
and he knew or should have known that they would not be sent via
United States Postal Service. We reiterate: it was his professional
responsibility to determine that the facts contained in the certificate
he was signing were accurate. This same failure to inquire and utter
lack of care as to the truthfulness of his statements are displayed
again in the other counts.
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¶ 67
¶ 68
¶ 69
¶ 70
¶ 71
Count II
The Commission argues that respondent’s filing of motions on
November 28 and December 29, 2005, and his work on preparing an
appellate brief for filing in the Seventh Circuit after the date of his
suspension constituted the unauthorized practice of law in violation
of Rule 5.5(a).
The order of suspension took effect on October 17, 2005, and this
court denied respondent’s petition for rehearing on October 28, 2005.
It is, therefore, absolutely certain that respondent knew he was
suspended from the practice of law when he filed the motions and
informed the Seventh Circuit that he was preparing the brief. It is also
clear that the filing of motions and the preparation of an appellate
brief constitutes the practice of law. See In re Howard, 188 Ill. 2d
423, 438 (1999) (practice of law includes services rendered to clients
out of court); In re Discipio, 163 Ill. 2d 515, 523 (1994) (completion
of forms and gathering of information necessary to do so was practice
of law because it required legal knowledge and skill).
He responds, first, that his actions did not constitute the
unauthorized practice of law because he did not file an appearance as
attorney for TCI in that case. Rather, he appeared only as a pro se
litigant until he learned that pro se representation of a corporation
was not permitted. Second, respondent argues that he did not violate
Rule 5.5(a) because he did not intend to engage in the unauthorized
practice of law. Third, he argues that the Administrator failed to
prove that he was suspended from the practice of law before the
Seventh Circuit and, thus, he cannot be found in violation of Rule
5.5(a).
As a threshold matter, there is some question as to whether
respondent has been admitted to the roll of practicing attorneys before
the Seventh Circuit. This question was first raised before the Review
Board. The Administrator’s petition to this court contains as an
exhibit a copy of a letter dated April 5, 2011, from Christine
O’Donnell, Administrative Analyst for the Clerk of Court for the
United States Court of Appeals for the Seventh Circuit. The letter
states that the Clerk of Court has no record of the admission of Robert
C. Thomas, and that records dating back to the early 1970s were
searched.
In his answer to the petition for leave to file exceptions,
respondent describes the letter as “sculpted and deceptive” and says
it was “designed by counsel for the Commission.” He does not say
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¶ 73
¶ 74
when he was admitted before the Seventh Circuit, but claims to have
appeared there and presented cases since the 1970s.2 He also states
that the address given for him in the letter was not his address at the
time he was admitted, but does not explain why, if he were a member
of the bar in that jurisdiction, it would not have his current address.
In conclusion, he calls the document “irrelevant and spurious.”
Of course, the burden is on the Administrator to prove any
misconduct by clear and convincing evidence. In re Timpone, 208 Ill.
2d 371, 380 (2004). The letter is not authenticated and it was not in
evidence before the Hearing Board. Further, while respondent might
have resolved the confusion on this matter by producing a record of
his long-ago admission before the Seventh Circuit, he has no burden
of production. We, therefore, express no opinion as to whether
respondent has been admitted to practice before the Seventh Circuit.
Turning to the merits of count II, our review of the documents
filed by respondent in the Seventh Circuit case reveals that
respondent consistently identified himself as the president and sole
shareholder of TCI and not as its attorney. He acknowledges that he
did not inform the Seventh Circuit of his suspension, but notes that
he was careful to present himself to that court as a pro se litigant, not
as a practicing attorney.
We see two possibilities. First, respondent did not know that he
could not represent TCI pro se. He states that he reviewed only the
Federal Rules of Civil Procedure and the local rules of the Seventh
Circuit, which did not preclude his pro se appearance. If this is the
case, his skills as a lawyer are called into question because a lay
person could find the answer on the internet in a few seconds. He
complains that the limitation on pro se representation is found in a
“court decision,” as if he could not be expected to include judicial
opinions in his legal research. He calls the holding in the case a
“decisional restriction,” as if binding case law is not as authoritative
as local rules. A cursory search of a major legal database, however,
reveals hundreds of cases from many state and federal courts
2
Our own research reveals only one case in the Seventh Circuit in
which respondent is listed as the attorney. See Thomas Consolidated
Industries, Inc. v. Koster Group, Inc., 93 F. App’x 926 (7th Cir. 2004). In
addition, he appeared pro se in Thomas v. Zaruba, 188 F. App’x 485 (7th
Cir. 2006) (appeal from dismissal of petition for writ of habeas corpus,
challenging conviction for driving while license revoked).
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¶ 76
¶ 77
¶ 78
imposing the same restriction. If respondent failed to locate any of
these cases, his research was superficial at best.
The second possibility is that respondent knew the corporation
could not proceed pro se and he hoped to finesse the question of his
status by not entering an appearance as the corporation’s attorney
while, in effect, acting as such. If so, he engaged in the unauthorized
practice of law before the Seventh Circuit while feigning to appear
pro se.
The Hearing Board concluded that even if the first of these two
possibilities was true, respondent engaged in the unauthorized
practice of law. Citing In re Cheronis, 114 Ill. 2d 527, 535 (1986), for
the proposition that ignorance of the law does not excuse attorney
misconduct, the Hearing Board stated that respondent was obligated
to educate himself on the relevant law, especially when his license
had been suspended. The Hearing Board also rejected respondent’s
argument that the Administrator was required to prove that he
intended to practice while suspended, again citing Howard, 188 Ill.
2d at 438 (respondent attorney’s conduct during suspension,
including giving advices to clients, is sufficient for finding of
violation). Thus, the Hearing Board concluded, respondent violated
Rule 5.5(a).
By its terms, Rule 5.5(a) does not require that the unauthorized
practice be intentional or knowing. It makes no exception for the
attorney who is uninformed or confused about his status. In effect, the
rule creates a sort of “strict liability” for attorneys. Because “[i]t is
vital to the well-being of society that an attorney, who is an officer of
the court and a part of our judicial system, should maintain the most
scrupulous care in conducting his professional and business affairs[,]
*** [a]n attorney can be subject to discipline though his misconduct
is based merely upon an honest mistake.” (Internal quotation marks
omitted.) In re Witt, 145 Ill. 2d 380, 395-96. Thus, when the rule
itself does not require a showing of intent or knowledge, the absence
of dishonest intent is appropriately considered in determining the
nature and severity of the sanction imposed. Id. at 395-96.
More recently, in Howard, the respondent attorney was suspended
from the practice of law for two years, with all but the first five
months stayed. Howard, 188 Ill. 2d at 426. During his suspension, he
met with clients, accepted fee advances, and offered legal advice. Id.
at 438. He attempted to explain his conduct by stating that he was
merely trying to keep his practice afloat during the relatively brief
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¶ 80
¶ 81
suspension. Id. at 439. He also noted that he had not appeared in
court, filed any motions, or taken any depositions. Id. at 432-33. This
court concluded that there was no doubt that he intentionally
practiced law during his suspension. Id. at 438. Significantly, our
concern was whether he intentionally performed tasks or provided
services that constituted the practice of law, not whether he
intentionally violated the terms of his suspension. Id. at 438-39. That
is, even though the respondent believed that his conduct was
permissible because his five-month suspension was not subject to the
strictures of Supreme Court Rule 764, which applies to suspensions
of more than six months’ duration (Ill. S. Ct. R. 764 (eff. Aug. 27,
1990)), his “ignorance of the law” did not excuse his conduct. Id. at
439. We commented that the common maxim that ignorance of the
law is no excuse is “ ‘particularly true in a case where the person who
claims lack of knowledge of a relevant directive is a practicing
attorney.’ ” Id. (quoting Cheronis, 114 Ill. 2d at 535).
Thus, it has long been established that it is the individual
attorney’s professional responsibility to make certain that he is
licensed to practice in the jurisdiction before undertaking any
professional duties. If there is any doubt whatsoever about his status,
a telephone call to the clerk of this court would resolve the issue for
him. We, therefore, conclude that the Hearing Board’s finding that
respondent violated Rule 5.5(a) is not against the manifest weight of
the evidence.
Even if his conduct in the Seventh Circuit case constituted the
practice of law, respondent argues in the alternative that his
suspension from the practice of law in Illinois did not mean that he
was suspended from practice before the Seventh Circuit. He notes
that Rule 5.5(a) forbids the practice of law in a jurisdiction “where
doing so violates the regulation of the legal profession in that
jurisdiction” (Ill. Rs. Prof’l Conduct R. 5.5(a) (Aug. 1, 1990)), and
that the Seventh Circuit is its own licensing jurisdiction. He argues
that the Administrator did not prove that his filings violated the
regulation of the legal profession in the Seventh Circuit.
In count II, paragraph 19, of the complaint, the Administrator
alleged that “[a]t the time Respondent prepared and filed the motions
described in Paragraphs 17 and 18, above, he was suspended from the
practice of law in Illinois and the Northern District of Illinois and was
ineligible to represent Thomas Consolidated.” In his answer to the
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¶ 83
complaint, respondent stated under count II, paragraph 18,3 that he
“[a]dmits that he was suspended but denies he was unable to
represent pro se until so advised by the Seventh Circuit Court of
Appeals, which was his status untile [sic] the court ruled on January
3, 2006.” This answer, the Administrator argues, is an admission that
he was suspended from practice in the federal courts as well as the
state courts.
We begin by noting that a federal court of appeals does not
license individuals to practice law. Rather, it admits qualified
individuals to practice. An attorney is eligible for admission to the bar
of the Seventh Circuit “if that attorney is of good moral and
professional character and is admitted to practice before the Supreme
Court of the United States, the highest court of a state, another United
States court of appeals, or a United States district court.” Fed. R. App.
P. 46(a)(1). In turn, an attorney may be admitted to the bar of the
United States District Court for the Northern District of Illinois if he
is a member “in good standing of the bar of the highest court of any
state.” N.D. Ill. Loc. R. 83.10(a).
Thus, if respondent was not admitted to practice before the
Seventh Circuit before he filed the motions, he would not have been
eligible for admission to practice before the Seventh Circuit while his
license to practice was suspended in Illinois. If he were already a
member, he would have been “subject to suspension or disbarment”
when he was “suspended or disbarred from practice in any other
court.” Fed. R. App. P. 46(b)(1)(A). The rules of the Seventh Circuit,
of which respondent had a duty to be informed, provide that:
“Whenever it is shown to this court that any members of its
bar have been disbarred or suspended from practice, or their
names have been stricken from the roll of attorneys, in any
state, or the District of Columbia, they will be forthwith
suspended from practice before this court. They will
thereupon be afforded the opportunity to show cause, within
30 days, why their names should not be stricken from the roll
of attorneys admitted to practice before this court. Upon the
attorney’s response to the rule to show cause, or upon the
expiration of the 30 days if no response is made, this court
will enter an appropriate order.” 7th Cir. R. 46(d).
3
Respondent’s answer contained two paragraphs numbered 18, the
second of which corresponds to paragraph 19 in the complaint.
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¶ 85
¶ 86
¶ 87
¶ 88
Illinois Supreme Court Rule 764(f)(4) requires that within 21 days
of the effective date of an order of discipline, a disciplined attorney
must notify “all other jurisdictions” in which he is licensed to practice
of his “inability, during the period of discipline, to practice law in the
State of Illinois.” Ill. S. Ct. R. 764(f)(4) (eff. Aug. 27, 1990).
Under Circuit Rule 46, respondent would have been suspended
“forthwith” as soon as it was “shown” to the Seventh Circuit that he
had been suspended in Illinois. The only reason he was not formally
suspended in the Seventh Circuit was his own failure to carry out his
duty and obligation to inform that court of his suspension. When he
filed the first motion in the Seventh Circuit case, he was indisputably
aware that he was suspended in Illinois and that he had failed to
comply with Supreme Court Rule 764(f)(4). We conclude that
respondent’s practice of law before the Seventh Circuit was
misconduct in violation of Rule 5.5(a).
The Administrator also charged that respondent’s unauthorized
practice of law violated Rules 8.4(a)(4) and 8.4(a)(5) as well as
Supreme Court Rule 770.
Rule 8.4(a)(4) defines one type of lawyer misconduct as “conduct
involving dishonesty, fraud, deceit or misrepresentation.” Ill. Rs.
Prof’l Conduct R. 8.4(a)(4) (eff. July 1, 1990). Because the Review
Board concluded that respondent did not violate Rule 5.5(a), it did not
consider whether he violated this rule. However, in its discussion of
count I, the Review Board relied on In re Cutright, 233 Ill. 2d 474
(2009), to conclude that respondent’s “mere indifference” as to the
truth of the certificate of service that he signed could not constitute a
violation of Rule 8.4(a)(4). The Review Board understood Cutright
to mean that a violation of Rule 8.4(a)(4) requires evidence that the
conduct was intentional. By this logic, one could be in violation of
Rule 5.5 based on mere indifference to one’s suspended status, but
not be in violation of Rule 8.4(a)(4). We disagree. Cutright does not
require such a narrow reading of the rule.
Attorney Cutright was charged with violating Rule 8.4(a)(4) and
other rules as a result of his preparation of the tax returns of a judge
before whom he appeared. He did not disclose this fact to opposing
counsel. Id. at 481-83. The Hearing Board found other violations, but
concluded that the attorney did not intend to deceive when he failed
to inform opposing counsel; “rather, he was unaware of his ethical
obligations.” Id. at 483. The Hearing Board concluded that the
Administrator had not proven a violation of Rule 8.4(a)(4). The
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¶ 90
Review Board agreed, concluding that “while ignorance is no excuse,
neither is it a chargeable offense in this context.” Id.
This court noted that in past cases, it had found a violation of
Rule 8.4(a)(4) when some act or circumstance showed the
respondent’s conduct was “purposeful.” Id. at 489 (citing In re
Rinella, 175 Ill. 2d 504 (1997) (violation found when respondent
knowingly provided false testimony before the Hearing Board)). In
contrast, in another case, a violation was not found in the absence of
evidence that the misconduct was intentional. Id. (citing Witt, 145 Ill.
2d 380 (no violation absent evidence that respondent judge’s silence
regarding a loan from an attorney was intended to perpetrate a fraud)).
We did not, however, state as a general rule that Rule 8.4(a)(4) may
be violated only by intentional dishonesty, fraud, deceit, or
misrepresentation. We concluded that given the examples of these
cases and in light of the manifest weight of the evidence standard, the
Hearing Board’s findings of fact and its legal conclusion that attorney
Cutright had not violated Rule 8.4(a)(4) should stand. Id. at 490. We
emphasized that our result was predicated on the manifest weight of
the evidence standard by saying:
“There is essentially no way to define every act or form of
conduct that would be considered a violation of Rule
8.4(a)(4). Each case is unique and the circumstances
surrounding the respondent’s conduct must be taken into
consideration. That being said, based on the circumstances in
this case, we decline to reverse the findings of the Hearing
Board and the Review Board to conclude that Cutright
violated Rule 8.4(a)(4).” Id.
We, thus, left open the possibility that a violation of Rule
8.4(a)(4) could be found without evidence that the underlying
misconduct was intentional. In the present case, the facts are
undisputed that respondent engaged in conduct that constituted the
practice of law while his license was suspended by this court. These
acts were not inadvertent; they were intentional. The effect of his
conduct was to perpetrate a fraud upon the court, at least until the
court determined sua sponte that he had been suspended from
practice. As such, his acts constituted misconduct under Rule
8.4(a)(4). See In re Gerard, 132 Ill. 2d 507, 527-28 (1989) (intent to
defraud or deceive is not an element of violation of Disciplinary Rule
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¶ 92
1-102(a)(4);4 constructive fraud, which may be inferred from the
circumstances, is sufficient).
Rule 8.4(a)(5) defines misconduct as engaging in “conduct that is
prejudicial to the administration of justice.” Ill. Rs. Prof’l Conduct
R. 8.4(a)(5) (eff. July 1, 1990). The Hearing Board found a violation
of this rule, but did not explain how respondent’s unauthorized
practice of law before the Seventh Circuit prejudiced the
administration of justice when the client involved was a corporation
of which respondent was the president and sole shareholder. The
answer is found in Scandia Down, the case cited by the Seventh
Circuit in its order directing respondent to resolve the matter of his
inability to represent TCI. In that case, the court noted that the sole
equity investor in a corporation does “not represent other interests,
such as those of creditors.” Scandia Down, 772 F.2d at 1427. In the
present case, TCI had filed for bankruptcy. Any recovery that might
have been made in the litigation against the Herbsts would have been
part of the bankruptcy estate, subject to the claims of TCI’s creditors.
Thus, respondent’s failed attempt to represent TCI potentially harmed
not only his own interests, but also the interests of TCI’s creditors. As
such, his misconduct was prejudicial to the administration of justice.
The Hearing Board also found a violation of Supreme Court Rule
770. Supreme Court Rule 770 is not itself a Rule of Professional
Conduct. Rather, it is contained in article VII, part B, of our rules,
which governs “Registration and Discipline of Attorneys.” Rule 770
is titled “Types of Discipline” and provides that “[c]onduct of
attorneys which violates the Rules of Professional Conduct contained
in Article VIII of these rules or which tends to defeat the
administration of justice or to bring the courts or the legal profession
into disrepute shall be grounds for discipline by the court.” Ill. S. Ct.
R. 770 (eff. Apr. 1, 2004). The rule then lists eight levels of discipline
ranging from disbarment to reprimand. Thus, one does not “violate”
Rule 770. Rather, one becomes subject to discipline pursuant to Rule
770 upon proof of certain misconduct. We conclude that based on his
violations of Rules 5.5(a), 8.4(a)(4), and 8.4(a)(5), respondent is
subject to discipline by this court pursuant to Rule 770.
4
The Disciplinary Rules were replaced on August 1, 1990, by the
Rules of Professional Conduct. DR 1-102(a)(4) was the precursor to Rule
8.4(a)(4).
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¶ 94
¶ 95
¶ 96
¶ 97
¶ 98
Count III
Commission Rule 54 states:
“When the Administrator concludes that there is
insufficient evidence to establish that the respondent has
engaged in misconduct, the Administrator shall close an
investigation. The Administrator shall notify the complaining
witness of his decision to close an investigation. Closure by
the Administrator shall not bar the Administrator from
resuming the investigation if circumstances warrant. The
Administrator shall report to the Commission actions taken
under this rule.” Attorney Registration and Disciplinary
Comm’n R. 54.
In the present case, the Administrator gave the required notice to
attorney Ropiequet, the complainant, stating that the reported conduct
appeared to have been an isolated instance and had since ceased. The
Administrator also gave the required notice to respondent, placing
him on notice that the investigation could be reopened “if
circumstances warrant.” Thus, the Administrator fully complied with
the procedural directives of this rule.
The Review Board, however, interpreted Commission Rule 54 to
mean that “a closed investigation can be reopened only when the
Administrator acquires new evidence concerning the conduct that was
the subject of the closed investigation” and, further, that the rule is
not intended to allow the Administrator “to change his mind merely
because there is an indication that the Respondent may have engaged
in misconduct in an unrelated manner.” As a result, because it
concluded that it was improper for the Administrator to reopen the
2005 investigation, the Review Board did not reach the merits of this
charge.
Our analysis of count III must address two separate issues: (1) Did
the Review Board correctly interpret Commission Rule 54? And (2)
if not, did the Hearing Board properly find that respondent engaged
in the unauthorized practice of law when he represented the Phillipses
in proceedings after October 17, 2005?
We reject the Review Board’s interpretation of Commission Rule
54 for three reasons. First, the language of the rule does not require
such a narrow reading. Second, the Review Board reads Commission
Rule 54 as creating substantive rights for respondents rather than as
setting out procedures for the Administrator to follow. Third, the
mission of the Commission and the duties assigned to the
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¶ 100
¶ 101
Commission by this court require that the Administrator be permitted
to reopen a closed investigation for good cause, including, but not
limited to, newly acquired evidence regarding the earlier alleged
misconduct.
Commission Rule 54 provides that an investigation “shall” be
closed if there is insufficient evidence to establish misconduct. The
rule instructs the Administrator to terminate an investigation, with
notice to all interested parties, if the investigation has not yielded
evidence that would justify referral to the Inquiry Board. In contrast,
Commission Rule 55 provides that “[w]hen the Administrator
concludes that there is sufficient evidence to establish that the
respondent engaged in misconduct or the Administrator believes
consideration by the Inquiry Board is warranted, the Administrator
shall refer the matter to the Inquiry Board.” Attorney Registration and
Disciplinary Comm’n R. 55. Thus, these two rules create a procedural
mechanism that requires the Administrator to assess the state of the
evidence in each case and either close the investigation or refer the
matter to the Inquiry Board. This procedure carries out the policy of
the Commission, as set out in the preamble to the Commission rules:
“The courts, the public, the bar, and the respondents have a vital
interest in an early determination of any charge which bears upon the
fitness of an attorney to practice his profession.” Attorney
Registration and Disciplinary Comm’n R. 1, Preamble.
Commission Rule 54, however, does not limit the circumstances
in which the Administrator may determine that an investigation
should be closed. As the Administrator notes, an investigation may be
closed for many reasons, only one of which is insufficient evidence
of misconduct. The volume of complaints received by the
Commission requires the Administrator to set priorities and allocate
resources. An investigation into allegations of less serious misconduct
may be closed so that other, more serious allegations may be pursued.
In such cases, the mere fact that a complaint was filed with the
Commission may be sufficient to put the respondent on notice not to
repeat the conduct at issue. Or, as in the present case, the
Administrator may close an investigation after concluding that the
alleged misconduct was an isolated incident, not likely to be repeated,
and that respondent has ceased the offending conduct.
Similarly, there are several circumstances that may justify
reopening of a closed investigation aside from the acquisition of new
evidence regarding the subject of the original complaint. Such
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¶ 103
¶ 104
¶ 105
¶ 106
¶ 107
circumstances include a decision by the Oversight Committee of the
Commission or the filing of a new complaint against the same
respondent.
The role of the Oversight Committee is to “assist the Commission
in conducting an internal quality review of a representative sample of
investigative matters concluded by the Administrator without
reference to the Inquiry Board.” ARDC Board Member Roster,
Oversight Comm., http://www.iardc.org/bm_oversightcommittee.asp
(last visited Jan. 17, 2012). Thus, after the Administrator has closed
an investigation and given the notices required by Commission Rule
54, the Oversight Committee’s quality review could result in the
matter being reopened.
In addition, a new complaint of similar misconduct may suggest
that the attorney is engaging in a pattern of misconduct, making the
subject matter of the earlier investigation relevant. A new complaint
about a different form of misconduct may reveal that the respondent
attorney is struggling with alcoholism, gambling, or other issues that
affect his ability to practice, placing the subject matter of the earlier
investigation in a new light.
The language of Commission Rule 54 does not define or limit the
circumstances that warrant the reopening of an investigation. This
decision has been placed by this court in the sound discretion of the
Administrator, whose actions are subject to review by the Oversight
Committee, the Inquiry Board, and ultimately this court.
Not only is the Review Board’s narrow reading of Commission
Rule 54 not required by the language of the rule, such a narrow
reading overlooks the procedural nature of the Commission rules,
improperly imbuing the Commission with the authority to promulgate
substantive rules regarding attorney discipline.
Commission rules are promulgated pursuant to Supreme Court
Rule 751(e)(2), which provides that the Commission shall have the
duty “to make rules for disciplinary proceedings not inconsistent with
the rules of this court.” Ill. S. Ct. R. 751(e)(2) (eff. Oct. 13, 1989).
Because these rules are to govern “proceedings,” they are necessarily
procedural, rather than substantive, in nature. See In re Mitan, 75 Ill.
2d 118, 125 (1979). As such, these rules set no standards for attorney
conduct and confer no rights upon attorneys.
Respondent’s arguments are predicated on a misunderstanding of
the purely procedural nature of the Commission Rules. He argues that
the “obvious purpose of Commission Rule 54 is to remove the threat
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¶ 109
¶ 110
of prosecution that any ARDC investigation implies–absent a change
in circumstances,” and accuses the Commission of “seeking
omniescence [sic] and omipotent [sic] power over attorneys–for their
entire lives.”
In accordance with Commission Rule 54, respondent received
notice that the investigation had been closed and he was placed on
notice that it could be reopened. Apparently, respondent believes that
the notice he received from the Administrator pursuant to the rule
conferred upon him a substantive right, comparable to double
jeopardy protection, that prevents the Administrator from
reexamining the alleged misconduct in the future absent new
evidence regarding the particular incident. He cites no authority for
placing such substantive weight on the words of a Commission rule.
Indeed, no such authority exists because the Commission is not
empowered by Supreme Court Rule 751(e)(2) to create substantive
rights via its procedural rulemaking.
Finally, our intent that the Administrator have discretion in the
closure and resumption of investigations is consistent with this
court’s long-standing vision of the role of the Commission. As noted
in Mitan, this court “has the inherent power to regulate the admission
of attorneys to the practice of law and to discipline attorneys who
have been admitted to practice before it.” Mitan, 75 Ill. 2d at 123. The
Commission and its officers “serve only as agents of this court in
administering the disciplinary functions that have been delegated to
them.” Id. at 124. In effect, the Commission and its officers serve
investigatory and screening functions, delegated to them by this court.
The proceedings before the Hearing Board and the Review Board are
“advisory only” to this court. Id. Therefore, “because of the nature of
the proceedings before those to whom we have delegated the
authority to act, we will not consider technical objections as to the
practice and procedures before them, nor can such technical
objections bind us or limit our authority to act.” Id.
In Mitan, the Commission failed to comply with a Commission
rule that required a hearing within 90 days of service of a complaint
upon a respondent attorney. This court rejected the respondent’s
argument that the rule established “a mandatory statute of limitations,
a limitation which would effectively bar this court from disciplining
an attorney” merely because of an inadvertent procedural error by the
Administrator’s office. Id. At that time, Supreme Court Rule 753(c)
(Ill. S. Ct. R. 753(c) (eff. May 21, 1975)), required that the Hearing
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¶ 112
¶ 113
Board set a hearing date “not earlier than 21 days after the filing of
such complaint.” Our rule did not place a limit on the length of time
between the filing of the complaint and the hearing. Id. at 124-25.
Thus, although the Administrator had not complied with the
applicable Commission rule, he was in full compliance with this
court’s rules. This court viewed the Commission rule “not as a
limitation on the authority or jurisdiction of this court, but as a
procedural rule of the Commission directing the Administrator to
conduct orderly and timely proceedings with due regard for the rights
of the attorney under investigation.” Id. at 125. The 90-day time limit
was “not mandatory” and could not be construed “to be a means of
implementing a right to a speedy trial.” Id. The failure to comply with
the rule did not “deprive this court or its agents of the right or the
power to further consider the charges against the respondent.” Id.
Thus, the “right or power” of our agent, the Administrator, to
further consider charges against a respondent attorney does not derive
from the Commission’s procedural rule, but from our delegation to
the Administrator, under Supreme Court Rule 752(a), of the
responsibility to “on his own motion, on the recommendation of an
Inquiry Board or at the instance of an aggrieved party, investigate
conduct of attorneys which tends to defeat the administration of
justice or to bring the courts or the legal profession into disrepute.”
Ill. S. Ct. R. 752(a) (eff. Mar. 17, 1988). This responsibility is
constrained by the constitutions of the United States and the State of
Illinois and the rules of this court–not by the Commission’s own
procedural rules.
Having determined that it was permissible for the Administrator
to reopen the investigation into respondent’s representation of the
Phillipses, we turn to the question of whether he engaged in the
unauthorized practice of law when he represented them at a hearing,
conducted a deposition, and appeared with them at their depositions
after his suspension went into effect.
Rule of Professional Conduct 5.5(a) provides that a “lawyer shall
not practice law in a jurisdiction where doing so violates the
regulation of the legal profession in that jurisdiction.” Ill. Rs. Prof’l
Conduct R. 5.5(a) (Aug. 1, 1990). It is undisputed that respondent
practiced law in Du Page County by appearing in court to represent
the Phillipses, appearing with them at their depositions, and
conducting the deposition of attorney Ropiequet after his suspension
went into effect on October 17, 2005. Respondent argues that it is
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¶ 115
¶ 116
¶ 117
¶ 118
also undisputed that he believed that his filing of a “Petition for
Hearing/Rehearing” stayed the suspension order.
Correspondence back and forth between respondent and counsel
for the Administrator continued, with his rejecting every effort to
inform him of his status. The October 20, 2005, letter from counsel
advised him that the suspension was effective on October 17, 2005,
and that the filing of an appeal does not automatically stay or recall
the mandate. He describes this as merely “her opinion” and states that
“she erroneously described the filing as a Petition for
Rehearing–when in fact it was a petition for Hearing/Rehearing.”
Respondent elected not to seek independent legal advice from
someone familiar with the applicable rules or to inquire directly of the
clerk of the Supreme Court as to his status.
Although respondent knew that an order of suspension had been
entered with an effective date of October 17, 2005, respondent chose
not to take that simple step of verifying his status, even after the
question was posed to him by opposing counsel and by a judge at a
hearing. Instead, he incorrectly informed the judge that his suspension
was stayed and now argues that the judge “permitted” him to appear,
as if it were the judge’s responsibility, not his own, to verify his
status.
He attempts to excuse his conduct by stating that he “initially
assumed” that “as in all other cases,” the suspension order was
“automatically stayed.” Similarly, he states that when counsel for the
Administrator called Supreme Court Rule 771 to his attention, he
“examined the Rule” and concluded that it did not apply because his
petition asked for a “hearing” as well as “rehearing.” He claims that
he “rationally concluded” that when this court ordered the
Commission to file a response to his petition, this meant that his
petition was being considered pursuant to Rule 753(e)(5)(a)(iii).
His conclusion was not “rational.” He either failed to understand
or ignored the procedural posture of this case at the time he filed his
petition.
Rule 753 describes the functions and procedures of the Inquiry,
Hearing, and Review Boards of the Commission. Under Rule 753(e),
review of a Review Board report is sought by filing a petition for
leave to file exceptions with this court. Rule 753(e)(5) describes the
rulings this court might make on such a petition: (a) “allows
exceptions to an order or report of the Review Board,” or (b) “denies
leave to file exceptions.” If this court allows exceptions, it may: (a)(i)
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¶ 121
¶ 122
“enter a final order,” (a)(ii) “remand[ ] the matter with directions,” or
(a)(iii) “accept the matter for further consideration.” Ill. S. Ct. R.
753(e) (eff. Sept. 1, 2006).
Respondent’s petition, whether styled a “Petition for
Hearing/Rehearing” or otherwise, sought review of this court’s
October 17, 2005, order of suspension. This order followed our
allowing the Administrator’s petition for leave to file exceptions,
pursuant to Supreme Court Rule 753(e)(1), after the Review Board
recommended a 12-month suspension. Thus, respondent’s petition
was not a petition to this court seeking review of a Review Board
report and Rule 753 was not implicated. Further, our ordering the
Administrator to respond to his petition was not an acceptance of the
matter for further consideration and respondent had no reasonable
basis for assuming so.
Rather, the governing rule at the time respondent filed his petition
was Supreme Court Rule 771, “Finality of Orders and Effective Date
of Discipline”:
“(a) Finality. All orders imposing discipline pursuant to
these rules, except orders entered in cases that were accepted
by the court for further consideration pursuant to Rule
753(e)(5)(a)(iii), are final when filed by the clerk of the court,
and the mandates in all such cases shall issue at the time the
orders are filed. No petition for rehearing pursuant to Rule
367 may be filed in such case, nor will any motion or other
paper submitted after an order is filed automatically stay or
recall the court’s mandate. The finality of orders imposing
discipline entered in cases accepted by the court for further
consideration pursuant to Rule 753(e)(5)(a)(iii) shall be
governed by Rules 367 and 368.” Ill. S. Ct. R. 771(a) (eff.
Apr. 1, 2004).
As noted, the clause “except orders entered in cases that were
accepted by the court for further consideration pursuant to Rule
753(e)(5)(a)(iii)” is inapplicable in the circumstance in which this
court has already entered a final order pursuant to Rule 753(e)(5)(a)(i)
after allowing the Administrator’s petition for leave to file
exceptions. The operative language is that no motion or paper
submitted after an order is filed will “automatically stay or recall the
court’s mandate.”
We conclude that respondent violated Rule of Professional
Conduct 5.5(a) by his representation of the Phillipses after October
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¶ 124
¶ 125
¶ 126
¶ 127
17, 2005. We cannot know whether he subjectively believed that his
suspension had been stayed, but if he did believe so, his belief was
entirely unreasonable. He willfully ignored all attempts to inform him
of his status. His reading of the rules was self-serving and incorrect.
Further, he made no effort to ascertain the answer directly from the
clerk of this court.
In addition, respondent’s unauthorized practice of law involved
dishonesty or misrepresentation in violation of Rule 8.4(a)(4),
because respondent willfully ignored every attempt to inform him that
his actions violated his suspension and chose, instead, to continue to
engage in the practice of law. The fact that he may have convinced
himself that his suspension was stayed does not alter the underlying
dishonesty because his belief, even if sincere, was entirely
unreasonable. Further, his conduct was prejudicial to the
administration of justice, in violation of Rule 8.4(a)(5), because it
placed the interests of his clients in jeopardy. See, e.g., Scandia
Down, 772 F.2d at 1427 (attorney’s unauthorized representation of
defendant could have resulted in default judgment for plaintiff). Thus,
he is subject to discipline pursuant to Supreme Court Rule 770.
Appropriate Sanction
The Hearing Board, which found all three counts proven,
recommended a two-year suspension. The Administrator asks for a
three-year suspension, until further order of this court, noting that as
in the earlier case that resulted in his 18-month suspension,
respondent rationalizes his misconduct and denies all wrongdoing. He
places blame on others, yet refused to accept others’ efforts to
forestall his misconduct.
Although no violation of Rule 5.5(a) can be said to be minor,
respondent’s violations are certainly not as serious as they might have
been. The party most affected by the misconduct in count II was TCI,
respondent’s own bankrupt corporation. The violations in count III
occurred within a few days of the effective date of the suspension and
respondent terminated his representation of the clients immediately
upon our denial of his motion for reconsideration.
On the other hand, his conduct as to count II was calculated to
conceal from the Seventh Circuit that he had been suspended by this
court, and as to count III, he willfully ignored his suspension, even
when it was raised by the circuit court and opposing counsel and even
after he was correctly informed by counsel for the Administrator that
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¶ 130
¶ 131
¶ 132
continued representation of clients was a violation of his suspension.
In addition, he continues to deny any misconduct and refuses to
accept any responsibility for his actions.
We conclude that a suspension for one year is sufficient discipline
for respondent’s misconduct.
CONCLUSION
Respondent Robert C. Thomas is suspended from the practice of
law for one year.
In addition to complying with Supreme Court Rule 764(f)(4) by
notifying “all other jurisdictions in which [he] is licensed to practice
law” (Ill. S. Ct. R. 764(f)(4) (eff. Aug. 27, 1990)), of his suspension,
respondent shall verify his status before the United States Court of
Appeals for the Seventh Circuit. Within 30 days of the effective date
of this order, he shall submit to this court and to the Administrator
authenticated documentation of the date of his admission to the roll
of attorneys for that court and his current status there. If he was not
a member of that court at any time he appeared there as an attorney,
he will self-report that fact to the Seventh Circuit, this court, and the
Administrator.
Respondent suspended.
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