STICKS & STONES WON’T BREAK YOUR BONES, BUT NAMES MAY LAND YOU BEFORE THE ARDC
Judge Lynn M. EganMs. Adria E. Mossing (WBAI President)Judge Hollis L. Webster (Ret.)April 12, 2017
STARTING POINT: LAWYERS ARE SPECIAL
A lawyer is not only an officer of the legal system, but also a “public citizen having special responsibility for the quality of justice.”Ill.Ruleof Prof Conduct, Preamble, ¶ 1This special responsibility mandates that every lawyer “demonstrate respect for the legal system & for those who serve it, including judges, other lawyers & public officials.”Id. at ¶ 5
HOW DOES THIS APPLY DAY-TO-DAY?
In addition to the obvious obligation to be competent, diligent, honest & avoid misconduct, the Illinois Rules of Professional Conduct also mandate that every lawyer maintain…“a professional, courteous and civil attitude toward all persons involved in the legal system.”Ill.Ruleof Prof Conduct, Preamble, ¶ 10Offensive remarks can give rise to disciplinary action!In reCwik, 89 CH 690 (March 9, 1993)
DON’T LOOK TO FIRST AMENDMENT
Lawyers “do not enjoy the same freedom from restrictions on [free speech] rights as do ordinary citizens, especially with respect to actions undertaken in their professional capacity as attorneys.”In re Gerstein, 99 SH 1 (August 12, 2002).The use of vulgar, abusive or racist/sexist language “is not in any proper sense…safeguarded by the Constitution.”Id.Rule 4.4 & 8.4 have both been upheld against constitutional challenge.Id. See also, In re Amu, 2011 PR 106 (December 13, 2013).
KNOW THE RULES
Illinois Rule 3.4 – Fairness to Opposing Party & Counsel“A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence***(d) in pretrial procedure, make a frivolous discovery request…”Illinois Rule 3.5 – Impartiality & Decorum of the Tribunal“A lawyer shall not: (d) engage in conduct intended to disrupt a tribunal.”
KNOW THE RULES
Illinois Rule 4.4 – Respect for Rights of Third Persons“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”KEY POINTS:This rule covers conduct that occurs during the course of representation. If no attorney-client relationship, “Rule 4.4(a) does not govern.”In re Moore, 2015 PR 76 (Sept. 9, 2016).Covers behavior directed toward wide spectrum of people, including opposing counsel, insurance company reps, deputy sheriffs & a VA Medical Center director.Id.Joke around at your own peril. Your conduct will be judged by anobjectivestandard.In reCwik, 89 CH 690 (March 9, 1993).
KNOW THE RULES
Illinois Rule 8.2 – Judicial & Legal Officers“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal official, or of a candidate for election or appointment to judicial or legal office.”BEWAREThe ARDC regards violations of this rule as “extremely serious.”In re Walker, 2014 PR 132 (December 18, 2015).
WHY CAN’T LAWYERS GO AFTER JUDGES?
Lawyers have a special duty to protect the integrity of the courts, legal profession & administration of justice.This is jeopardized when lawyers engage in unfair criticism or make insulting or offensive remarks about judges because…“a suspicious public…relies upon statements made by those who work within the system as to corruption therein. For it is the attorney who, by practicing day in and day out in that system, most closely understands how it operates and when it fails. When an attorney fosters allegations of judicial corruption upon an unknowledgeable public, the public can only respond by assuming such allegations to be true.”In rePalmisano, 92 CH 109 (October 30, 1992).
RULE 8.2 – JUDICIAL OFFICERS
Disagreement or displeasure with a judicial ruling does not justify false statements about a judge.Irrelevant that the lawyer may genuinely believe a judge is incompetent or corrupt. Subjective beliefs are insufficient.Theremust be objective factsthat support a reasonable belief about the validity of the accusations.
KNOW THE RULES
5)Illinois Rule 8.4 – Misconduct“It is unprofessional for a lawyer to:(d)Engage in conduct that is prejudicial to the administration of justice; and(j)Violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer’s fitness as a lawyer.NOTE:Nocharge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency…has found that the lawyer had engaged in an unlawful discriminatory act, & the finding…has become final…& any right of judicial review has been exhausted.”
The ARDC defined the concept of “prejudicial to the administration of justice” as follows:“An attorney’s conduct is prejudicial to the administration of justice if it has an impact on the representation of a client or the outcome of a case, undermines the judicial process or jeopardizes a client’s interests.”In re Moore, supra.Subsection (d) has been interpreted to require clear & convincing evidence of “actual prejudice.”In re Gerstein, supra.This can be satisfied by showing the conduct necessitated additional proceedings or delayed resolution of pending matters.
ABA MODEL RULE 8.4(g)
In August 2016, the ABA adopted a new Rule 8.4(g), which provides as follows:“It is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.
While representing a client in a criminal case, counsel attempted to obtain additional fees & left the following voice messages for the defendant’s father:“You are a piece of garbage. All black people are alike. You’re slovenly, ignorant.”“You better give me my money or your son’s case is going to be delayed.”“I’m sick of you, you piece ofsh**. I don’t know who’s the biggest bit**. You or your family. I’m going to lock you up.”ATTORNEY DEFENSE:The father had been very disrespectful to him.ARDC RESPONSE:Rule 4.4(a) violation; attorney suspended. “Respondent’s use of derogatory, threatening & racially offensive language had no purpose other than to embarrass & burden [the father].”
In four separate cases, attorney sent opposing counsel letters in which he expressed displeasure over some action or position they had taken in the pending litigation. He included the following comments:“You have your head so far up your anus you think it’s a rose garden.”He suggested that opposing counsel eat their own correspondence or “place them in that bodily orifice into which no sun shines.”He referred to opposing counsel as “fool,” “idiot,” “punk,” “boy,” “honey,” “sweetheart,” “sweetie pie,” & “babycakes.” He also used the words “ass,” “crap,” & “piss me off.”ATTORNEY DEFENSE:No violation of Rule 4.4 because the “strong language” in his letters served a substantial purpose “by grabbing the reader’s attention & vividly demonstrating his point. Retained an expert witness (grad student/TA in business writing at U of I).ARDC RESPONSE:Rule 4.4(a) violation & attorney suspended. Prior discipline for similar behavior & fact that he sent a series of letters served as aggravating factors.
In the context of a civil suit, attorney repeatedly directed the following language to female opposing counsel:“Nice dress, slut,” “whore,” “mommy dearest,” “bitch,” “child molester,” “Still hanging around the bars & picking up the DePaul students?”The attorney directed the following remark toward male opposing counsel:“Idiot,” repeatedly stated he had seen opposing counsel snorting cocaine in the courthouse bathroom & referred to him as a “coke head” & asserted “the cocaine has got you.”ATTORNEY DEFENSE: Some comments simply reflect “ribbing” between the attorneys & others were a result of opposing counsel “baiting” or “provoking” him.ARDC RESPONSE:Violation of Rule 4.4(a); attorney suspended for 6 months & UFO.
In a child custody petition, attorney made the following remarks about the judge:“You appear to have serious mental issues involving extreme narcissism & illusions of grandiosity which effectively interferes with your ability to act as a Judge.”“It is extremely difficult to comprehend any justification…for requiring the appearance of counsel other than the interjection of your personal vendetta in an attempt to rationalize your own mistake in summarily placing a 14 year old child with a drug & alcohol addict.”ATTORNEY DEFENSE:He felt justified in his comments based on his internet research of the judge & discussions with other attorneys. He also did not believe the remarks attacked the judge’s integrity.ARDC RESPONSE:Violation of Rule 8.2 & attorney suspended for six months & UFO.
Over the course of a lengthy period of time in Traffic Court proceedings, attorney referred to other attorneys practicing in the same courts as follows:“Our gay lawyer,” “fag,” “faggot,” “gay scum.”ATTORNEY DEFENSE:Discipline on consent.ARDC RESPONSE:Violation of Rule 8.4(a)(5); attorney suspended for five months (all but 30 days stayed in favor of 2 years probation) & anger management counseling.
In the context of a debt collection proceeding, attorney accused opposing counsel of acting unethically & made the following remark:“You must be from a Jewish law firm.”ATTORNEY DEFENSE:Denied making the remark, but also invoked the protection of the First Amendment.ARDC RESPONSE:Violation of Rule 8.4(a)(5); attorney suspended for six months & UFO.
“Selected Issues in Commercial Cases”May 23, 2017Judge John GriffinJudge Brigid McGrathJudge ThomasMulroy*APPROVEDby Illinois MCLE Board for 1 hour general CLE credit.