| Filed November 21, 2014
In re JoAnne Marie Denison
Attorney-Respondent
Commission No. 2013PR00001
Synopsis of Hearing Board Report and Recommendation
(November 2014)
The Administrator filed a one-count Complaint against Respondent, arising out of numerous statements she made on an internet blog attacking the integrity of judges and attorneys involved in a pending adult guardianship proceeding. The Complaint charged Respondent made those statements knowing they were false or with reckless disregard for their truth or falsity. Respondent denied misconduct.
The Hearing Board found the Administrator proved Respondent made false statements concerning the integrity of the judges, knowing they were false or with reckless disregard for their truth or falsity, and engaged in dishonest conduct and conduct prejudicial to the administration of justice. The Hearing Board found, while Respondent had accused judges and other attorneys of criminal conduct, there was not clear and convincing evidence that she presented or threatened to present criminal charges, in order to obtain an advantage in a civil matter. Based on In re Karavidas, 2013 IL 115767, the Hearing Board dismissed the charge Respondent engaged in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.
Given the seriousness of Respondent’s misconduct, and aggravating factors including Respondent’s conduct in the disciplinary proceedings, the Hearing Board recommended that Respondent be suspended for three years and until further order of the Court. The Hearing Board declined to recommend disbarment given the mitigating factors present.
BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION
| In the Matter of:
JOANNE MARIE DENISON,
Attorney-Respondent,
No. 6192441. |
Commission No. 2013PR00001 |
REPORT AND RECOMMENDATION OF THE HEARING BOARD
INTRODUCTION
The hearing in this matter was held on January 21, 2014, January 22, 2014, January 23, 2014, January 24, 2014, March 10, 2014 and March 11, 2014, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC), before a Panel of the Hearing Board consisting of Sang-yul Lee, Chair, Ziad Alnaqib and Eddie Sanders, Jr. Sharon D. Opryszek and Melissa A. Smart appeared on behalf of the Administrator. Respondent was present at the hearing and appeared pro se. On February 10, 2014, Nejla K. Lane filed an appearance as additional counsel for Respondent and appeared at subsequent hearing dates.
PLEADINGS
Complaint
The Administrator filed a one-count Complaint against Respondent on January 8, 2013, which was served on Respondent on January 24, 2013, through the attorney representing her at that time. The Complaint charged Respondent with misconduct based on statements she made on a web log (blog) regarding judges, attorneys and other persons involved in an adult guardianship proceeding.
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Answer
Respondent, through counsel, Kenneth Ditkowsky, filed an Answer on February 8, 2013. After Ditkowsky was disqualified from representing her, Respondent filed a pro se Answer on May 28, 2013. She also adopted prior counsel’s Answer. Following motions by the Administrator to strike, Respondent filed a response which included a “Summary of Answer Information” (Summary). By Order dated August 5, 2013, prior counsel’s Answer, Respondent’s pro se Answer and the Summary were considered, collectively, as Respondent’s Answer. In essence, Respondent admitted some of the factual allegations of the Complaint, denied other factual allegations and denied misconduct.
ALLEGED MISCONDUCT
The Administrator alleged Respondent committed the following misconduct:
- making a statement 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 officer, in violation of Rule 8.2 of the Illinois Rules of Professional Conduct (2010);
- engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c);
- engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d);
- presenting, participating in presenting or threatening to present criminal charges to obtain an advantage in a civil matter, in violation of Rule 8.4(g); and
- engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
PREHEARING PROCEEDINGS
Numerous issues were raised, and resolved, during the prehearing stage of these proceedings. We leave the prehearing record to speak for itself and address those issues only as needed for purposes of our decision on the charges of misconduct and sanction recommendation.
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THE EVIDENCE
The Administrator presented testimony from Jim Halberg, Peter Schmiedel, Cynthia Farenga, Judge Jane Louise Stuart, Adam Stern, Ricky Krakow and Respondent. Administrator’s Exhibits 1 through 49, and 51 through 53 were admitted into evidence. (Tr. 97-98, 119, 127-34, 457, 1113, 1174, 1844).
Respondent presented testimony from Gloria Jean Sykes, Beverly Cooper, Kenneth A. Cooper, Yolanda Bakken and Kathleen Bakken. Respondent also testified on her own behalf. Testimony from Scott Craig Evans was barred. Respondent’s Exhibits A through J, pages 3 and 4 of K and Q were admitted into evidence. (Tr. 135, 141, 1848, 1854).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator must prove the misconduct charged in the Complaint, by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). Clear and convincing evidence is a degree of proof which, considering all the evidence, produces a firm and abiding belief it is highly probable that the proposition at issue is true. Cleary & Graham’s Handbook of Illinois Evidence, sec. 301.6 (9th ed. 2009). Clear and convincing evidence is not as stringent as the criminal standard of proof beyond a reasonable doubt, but requires more than the usual civil standard of a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762 (1990).
Extensive evidence was presented, which included substantial text from the blog which is the subject of these proceedings. We reviewed the evidence as a whole, even though this report discusses only that evidence we considered most relevant to the issues presented.
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Background Facts
The statements at issue concern an adult guardianship proceeding and persons involved in that proceeding. Mary G. Sykes (Mary) was the subject of the proceeding, in the Probate Division of the Circuit Court of Cook County. (Adm. Ex. 1 at 1).
In July 2009, one of Mary’s daughters, Carolyn Toerpe, filed a petition seeking to be appointed guardian of Mary’s person and estate. Attorney Harvey Waller then represented Toerpe. In this petition, Toerpe alleged Mary, age 90, was disabled due to dementia and memory loss. (Adm. Ex. 1 at 1). Multiple doctors had diagnosed Mary with dementia and considered her incapable of making her own personal and financial decisions. (Tr. 586, 859).
Shortly after Toerpe’s petition was filed, the court appointed attorney Cynthia Farenga to act as guardian ad litem (GAL) for Mary. On August 26, 2009, the court appointed attorney Adam Stern special GAL. (Adm. Ex. 1 at 2, 3). Both Stern and Farenga acted as GALs for Mary thereafter. (Tr. 797-98, 1022). The role of the GAL is to provide information to the court, assist the court in making a proper decision in the case, and represent the alleged disabled person’s best interests. While the GAL does not advocate for the alleged disabled person’s wishes, the GAL does inform the court of the person’s wishes in relation to the guardianship. (Tr. 582, 795-96, 955). Farenga testified Mary never told her Mary wanted a lawyer. (Tr. 882).
There was significant controversy among Mary’s relatives, which played out in the probate proceedings and other litigation. Mary’s other daughter, Gloria Sykes (Gloria), filed counter-petitions which, while alleging Mary was disabled due to dementia, sought to have someone other than Toerpe appointed guardian. Numerous issues were raised in the probate proceedings. The court’s jurisdiction was challenged, multiple times, based on the sufficiency of the notice given to Mary and her sisters of the guardianship proceedings. Those challenges were
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unsuccessful, despite multiple appeals by Gloria. Gloria attended court on multiple occasions, as did other relatives. (Tr. 403-405, 584, 602-606, 737, 815; Adm. Ex. 1 at 3, 4, 5). Disagreements over visitation with Mary began shortly after the probate case was filed. From the perspective of some relatives, Toerpe was isolating Mary against her will and improperly obstructing efforts to visit with Mary. (Tr. 1187-90, 1249, 1306-1307, 1411-12, 1415-16).
In December 2009, the probate court found Mary incompetent and appointed Toerpe her guardian. Before this order was entered, the court heard evidence as to the respective plans of Toerpe and Gloria for Mary’s care and gave relatives, including Gloria, the opportunity to question Toerpe about her care plan. (Tr. 258-59, 735, 872, 1025, 1426; Adm. Ex. 1 at 8).
After the guardianship order was entered, disputes continued. Attorney Peter Schmiedel began representing Toerpe. Many of the disputes concerned emotionally charged issues. There were ongoing disagreements about the nature and quality of care Mary was receiving. Accusations were made that Toerpe and her husband abused and neglected Mary. Visitation remained an ongoing, contentious issue. Two incidents exemplify the situation. Mary’s 84-year-old sister, Yolanda Bakken (Yolanda), described going to Toerpe’s home to visit Mary and being shoved by Toerpe and Toerpe’s husband. (Tr. 581, 747, 860, 1187-90, 1301, 1313-14, 1318-19, 1353-54, 1411-13, 1416-18). In a separate incident in June 2013, Naperville police were called, by Toerpe or at her request, when Gloria and other persons, including Respondent, went to the assisted living facility where Mary was residing. (Tr. 461, 464, 1073-1077).
As noted above, the family was involved in other litigation. That litigation included actions to partition a joint tenancy between Mary and Gloria as to one house and to evict Gloria from another house, owned by a trust of which Toerpe was trustee. (Tr. 595-96, 1603-1604; Adm. Ex. 39 at 8). In addition, in June 2009, Mary had accused Toerpe of financially exploiting
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her and filed a petition for an order of protection. Some of Mary’s relatives believed Toerpe’s petition for guardianship was filed in response to the petition for order of protection. (Tr. 490-91, 1337).
There was also controversy concerning another lawsuit (the Lumbermen’s case). The Lumbermen’s case involved the house Mary and Gloria owned in joint tenancy (the brown house). Gloria, who had been living in the brown house, alleged she contracted cancer due to conditions in the home. The brown house had been seriously damaged by mold. The trust owned Mary’s home (the white house). In August 2002, Gloria had moved into the white house and was living there with Mary. Gloria described a very close relationship between herself and Mary. (Tr. 482-86, 589-90, 595).
The Lumbermen’s case settled in October 2008, for approximately $1.3 million. Of that amount, approximately $700,000 was to be paid to Mary and Gloria. In October 2008, Mary executed a document (the Apportionment Agreement), which purportedly relinquished her interests in the Lumbermen’s settlement to Gloria. Respondent notarized Mary’s signature on the Apportionment Agreement. (Tr. 264, 280-83, 587, 591-92). Conflicting evidence was presented as to whether or not Respondent had any further involvement in the Lumbermen’s case or with the Apportionment Agreement. (Tr. 264-65, 800).
In the probate proceedings, issues were raised as to Mary’s mental capacity to execute the Apportionment Agreement and what, if any, portion of the Lumbermen’s settlement proceeds might belong to Mary. In November 2009, the probate court entered an order freezing assets in an account held by Gloria, until these issues could be resolved. Additional issues were raised as to the manner in which Gloria had handled settlement proceeds, her compliance with court orders and whether Gloria owed Mary any additional sums for the mortgage. These matters
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became the subject of significant controversy. In 2013, after a contested evidentiary hearing, the probate court found Mary lacked the mental capacity to execute the Apportionment Agreement and set that agreement aside. However, the court still had to determine how much of the proceeds belonged to Mary. (Tr. 587-96, 680-83, 800-802, 810-13, 818).
Respondent had attempted to file her appearance for Gloria in the probate case, in November 2009. (Tr. 255). Prior counsel had withdrawn. (Tr. 1684; Adm. Ex. 1 at 5). The GALs objected, on the grounds Respondent might be called as a witness, particularly as to Mary’s mental capacity to execute the Apportionment Agreement. On December 7, 2009, the probate court issued an order disqualifying Respondent. (Tr. 261, 799-803, 1023-25; Adm. Ex. 1 at 7-8).
Respondent is not charged with any misconduct in relation to notarizing the Apportionment Agreement. We draw no negative inference from the fact that she did so.
We also express no opinion on the merits of the positions of differing factions in the Sykes family. Those issues are well beyond the scope of this proceeding. The case before us involves Respondent’s conduct, not the propriety of decisions reached in any other proceedings.
I. Respondent is charged with making a statement she knew was false or with reckless disregard for its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer in violation of Rule 8.2 of the Illinois Rules of Professional Conduct (2010) and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Rules.
A. Evidence Considered
Beginning in November 2011, Respondent wrote and administered an Internet blog about the Sykes case. The blog consists of a series of writings, by various persons, including Respondent. Respondent made numerous blog posts over time. Some of those writings concern probate court and the probate system in general. Other writings relate specifically to the Sykes case and persons involved in it. The blog alleges corruption, in probate court in general and the
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Sykes case in particular. For a time, there were two blogs, one of which described itself as “(a)n attorney blog concerning corruption and greed in the Probate Court of Cook County,” because Respondent used hosting sites which offered different features. (Tr. 318-19, 606-610, 820-21, 1026-28, 1647; Adm. Exs. 17-32, 34-49). For simplicity, we designate them as the blog.
Respondent testified she produced the blog as a private person not as an attorney. (Tr. 384). Respondent also testified her knowledge and skill as an attorney was required to post and author the statements on the blog. (Tr. 410). On the blog, Respondent stated she published the blog primarily from a legal standpoint and it took an attorney to make the comments appearing on the blog. (Tr. 411-12). When Respondent began keeping track of time she spent on the blog, she calculated its value using her hourly rate as an attorney. (Tr. 410; Adm. Ex. 17 at 20). As admitted in Respondent’s Summary, the blog was open to the public. Respondent estimated, by the time of the hearing, her blog had an audience of about 40,000. (Tr. 318).
The blog includes allegations of wrongdoing by specific individuals involved in the Sykes case. (Tr. 608-610, 821, 1026-28). These allegations are summarized in a “Table of Torts.” While those persons are referenced by initials, the Table identifies the persons to whom the initials refer. Respondent prepared the Table of Torts. Because Respondent periodically added material to the Table of Torts, more than one version is in evidence. Respondent acknowledged the exhibits fairly represent snapshots of the Table of Torts. (Tr. 288-91, 303, 1594-95, 1611-14; Adm. Exs. 33, 34).
On the blog, Respondent described the Table of Torts as “TEN PAGES of questionable behavior, corruption, misfeasance, malfeasance, perpetration of misdemeanors and felonies,” occurring in the Sykes case, (Adm. Ex. 24 at 16), and as a “Summary of the Case! – 90%+ of the wrongful conduct all in one convenient place.” (Adm. Ex. 21 at 10). We begin, therefore, with
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the Table of Torts, for the purpose of providing an overview of the blog and context for the statements with which Respondent is charged.
The Table of Torts lists various acts, which allegedly occurred beginning in 2009 and continuing into 2012. Those acts suggest: a guardian was appointed even though Mary did not want or need one, Toerpe was appointed and allowed to remain guardian even though she had stolen from Mary and did not take proper care of Mary, the GALs and probate court ignored these circumstances as well as objections from Mary’s family, intimidation tactics were used and judges took action even though they knew they did not have authority. (Adm. Ex. 33). The following statements exemplify the content of the Table of Torts:
Probate court finds Mary G incompetent DESPITE numerous videos on internet showing a confident, clear thinking woman who knows she wants to live at home ? (and) be cared for by Gloria, her daughter who supported her for 11+ years. When Mary was in court, twice she tried to ask the judge to object and get an attorney. Judge Connors refused to let her say anything. (The GALs), who stand to benefit from declaring Mary incompetent, keep on saying that Mary does not object? (Id. at 3).
Dr. Rabin and Dr. Amdur sign off on medical reports?that Mary is incompetent, yet they know that she suffers from conditions that would affect cognitive ability testing?No CBC or BSL test is performed prior to cognitive testing?.No depositions or discovery is allowed by Gloria. The GAL’s [sic] turn a deaf ear to this. (Id. at 4).
(Toerpe) removes money from Mary G’s local bank. Mary G?discovers this and has a fit. Contacts attorney on her own, files Petition for Protective Order?.
(GALs and probate court are) made aware of theft of money but fail to investigate?.(GALs) know that (Toerpe) is the Respondent in a Petition for a Protective Order involving theft of assets from Mary G and do nothing about it. When it is mentioned to the (probate court) judge, ignores it?. (GALs) willfully, wantonly and recklessly aide [sic] and abet the filing and granting of (Toerpe’s petition for plenary guardianship). (Id. at 1).
(Toerpe) keeps Mary in near isolation? (Id. at 2). ? Mary stays at (Toerpe’s) and contracts an infection but is not provided medical care. She loses 10% of her body weight and cannot swallow?.Mary G was also severely dehydrated and near hospitalization. This is reported to the court, the GAL’s [sic] and they ignore the abuse/neglect. (Id. at 9).
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Family members complain bitterly about missing gold coins and cash missing?.(This is reported to GALs) and no investigation is made?The GAL’s [sic] turn a blind eye. (Id. at 2).
The (probate court) denies (Gloria’s) repeated requests for discovery? (and) ? strikes all of Gloria’s Pro Se pleadings? (Id. at 2)?.
Documents are filed with the court which are not read. (Id. at 7).
(GALs) obtain a court order to freeze Gloria’s funds?ALL her accounts are frozen- not just the ones in the order, leaving her penniless on a Friday afternoon. (GALs and Waller) are immediately contacted, but do nothing. (Id. at 3).
(Toerpe) shuts off Gloria’s gas in her home ? (Schmiedel and) ?Chase, the mortgage holder on Gloria’s property? ‘secure’ the property-by bashing out interior walls, disconnecting security cameras, throwing rooms full of furniture into the snow? (GALs) stand by, watch the felonious behavior and do not file a Petition to Remove (Toerpe) ?. Clearly someone desperately wants Gloria gone and intimidation is one (albeit illegal) avenue. (Id. at 5).
(The GALs) file a bogus ARDC complaint against (Respondent)? (The probate court asked Respondent) ?you don’t want to lose your law license, do you?’ (Id. at 6).
At the time of the hearing on Dec. 10, 2009, neither (of Mary’s sisters) received the proper Soldini [sic] notices advising them of their rights to object to the guardianship itself, object to appoint (Toerpe) as a guardian; remove the Guardian for improper behavior?(Id. at 4).
(In dealing with the Lumbermen’s proceeds, despite alleged procedural irregularities), Judge Connors says she does not have to follow Illinois law of judgments and that she can set aside any order in any court at any time. Since the limitations period has run, the funds should be immediately unfrozen by the GAL’s. The GAL’s [sic] stand by and do nothing. (Id. at 6).
The Table of Torts also contains statements, which are among those set out in the Complaint to support the charges of misconduct. Those statements are as follows:
(The GALs, Toerpe, Waller and Schmiedel) stand to benefit handsomely by declaring Mary incompetent, evicting Gloria, selling her home – all against her wishes. The court does not stop this greed and evil?.
In scary shades of Greylord revisited, (Respondent) notices that (the GALs) are walking the hallways in the judges’ private areas BEHIND the court room ?unescorted trips to the judges’ private area is a sure fire indicator of corruption?
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Additional torts. It should be noted that because the Probate case involving Mary is without subject matter jurisdiction, the court and the GAL’s actions were ultra vires or without any authority. Hence, Judge Stuart’s chaining of Gloria to tell all about her bank accounts was false imprisonment. Further, (the GALs and Toerpe) sent numerous pleadings by USPS and via the internet, and those would constitute mail fraud, wire fraud (comcast [sic] is a wired service) and cyber fraud. Thanks to (Ditkowsky) for pointing this out.
(Adm. Ex. 33 at 7; Adm. Ex. 34 at 42, 44) (Table of Torts post).1
Operation Greylord was a federal investigation of widespread corruption in the Cook County court system. As a result of Operation Greylord, numerous attorneys and judges were charged with, and convicted of, federal crimes. The crimes typically involved attorneys bribing judges to whom their cases were assigned, to obtain a favorable result. (Tr. 641, 775, 1607).
The Complaint identifies ten specific blog posts, made between April 19, 2012 and August 21, 2012, to support the allegations of misconduct. Respondent admitted the Complaint accurately stated these blog posts. (Tr. 333-34).2 Posts on the blog from some of those dates include submissions attributed to persons other than Respondent. However, as to all of the specific language charged in the Complaint, either Respondent admitted authoring the language (Tr. 341, 853, 867-68, 1541, 1553, 1570-71, 1573-74, 1594, 1620) or way the language appears on the blog, e.g. above Respondent’s name, indicates she did so. (Adm. Ex. 22 at 4-5, 11; Adm. Ex. 23 at 7; Adm. Ex. 24 at 2; Adm. Ex. 25 at 1-2; Adm. Ex. 26 at 18-19). The posts specifically identified in the Complaint are set out below.
The first post is from an entry on April 19, 2012, which suggests Mary had a large estate but “has been fleeced of her home, about a million in gold coins?as well as other property the family can and would verify if given a chance.” (Adm. Ex. 22 at 5). The language at issue appears in the context of statements that Respondent and Ditkowsky have been working on the blog, in an effort to inform others of the situation involving Mary. The charged language reads:
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those attorneys who will churn fees at hundreds of dollars per hour-want us silenced. They apparently have a lot of clout in Probate and even with the ARDC?
And I would like to note (JMD) that if you follow the money trail, it leads directly to the Plenary Guardian, the GAL’s [sic] Adam Stern and Cynthia Farenga, and the Guardian’s attorney’s [sic] Harvey Waller and Peter Schmeidel/Dorothy Soehlig!
(Adm. Ex. 22 at 4-5) (Apr. 19 post).
Schmiedel has a colleague named Deborah Soehlig. (Tr. 616). Respondent’s initials are JMD.
The second post is an entry on April 25, 2012. After referencing a separate case which, allegedly, included circumstances like those in the Sykes case, the charged language stated: “(a)s in the Sykes case, currently the GAL is adding other attorneys to the case to outlawyer the daughter and churn the feeding frenzy [sic] – all with court connected lawyers.” (Adm. Ex. 22 at 8-9; Adm. Ex. 39 at 10-11) (Apr. 25 post).
The third post (the Black post) is dated April 28, 2012. This entry purports to be from a facsimile transmission to Lea Black, the attorney who initially represented the Administrator in these proceedings. (Tr. 347-48; Adm. Ex. 22 at 11). In the Black post, Respondent referred to the Sykes case and stated there was a clear pattern “to exclude, snub, snob and ignore any pleading that Gloria filed,” while granting, “anything offered either orally or by mere hint of suggestion by the tortfeasors,” Stern, Farenga and Schmiedel, “without findings, no hearing, no discussion, and often without any written Motion or Notice of Motion.” (Tr. 352; Adm. Ex. 22 at 11). The Black post continued with the following language:
Isn’t this the classic case of corruption?…
The judge in the Probate Court declared in August of 2011 she did not have to follow court rules or Illinois Statutes pertaining to Civil Procedure in Court-she was exempt. Then she grants this privilege to the court officer miscreants-and now it is clear for the world to see this is a continuing pattern, ala Dorothy Brown
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who has finally provided some meager form of computerization to the Circuit Courts.
Why aren’t the Circuit Courts of Cook County computerized when the federal courts have been computerized since 200? 1) a thousand incompetent and computer illiterate patronage workers would have to be fired in a single day ? and 2) politically connected judges and their puppet attorneys (the GAL’s [sic]) would be exposed for what they are: money grubbing, family strife churning leeches that create nothing but pain and misery in a family while swiping free parking money out of a well funded estate.
(Adm. Ex. 22 at 11).
The fourth post is dated May 24, 2012. To put the charged language in context, the blog post from that date began with the heading, authored by Respondent: “(f)rom Ken Ditkowsky – Reasons for a number of agencies to get involved and investigate.” (Tr. 1573; Adm. Ex. 23 at 7). Text followed, apparently authored by Ditkowsky, which complained of the manner in which Mary was found incompetent, called for an investigation and stated the determination Mary was incompetent was “a foregone conclusion orchestrated by an agreement” between the GALs and the guardian’s attorney. (Adm. Ex. 23 at 7). This theme continued in text posted by Respondent, which included comments that honest attorneys, “the ones not making a profit from corruption,” who report their suspicions of theft by “the court and the authorities,” become the subject of groundless complaints, while “the miscreants dance away with impunity.” (Adm. Ex. 23 at 7). The language charged in the Complaint was part of the text Respondent posted regarding the Sykes case. That language stated: “(a)gain, the entire case was railroaded, the file was peppered with packs of lies, and these lies were rubber stamped by (the GALs) and the Probate Court in a ?done deal.’ Scary.” (Adm. Ex. 23 at 7) (May 24 post).
The fifth post, from June 1, 2012, asserted a transcript, to which the blog provided a link, shows Judge Stuart side stepping the major issues in the case. (Adm. Ex. 24 at 1). The language
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at issue appeared in one of three postscripts, following Respondent’s name at the conclusion of the post. That language read:
?from this transcript, it is clear the judge is talking to the miscreant attys in the hallway, Scott and Gloria always see them coming from behind the judge’s private areas, and it is clear that the court is being spoonfed BS law by atty miscreants rather than having to actually read cases and make decisions based upon briefing schedules.
(Adm. Ex. 24 at 2) (June 1 post).
The sixth post, from July 7, 2012, consisted of a letter from Respondent to Kevin Connelly at the Office of the Sheriff, Circuit Court of Cook County. In this letter Respondent suggested corruption in the Sykes case for multiple reasons, including lack of jurisdiction, the court and GALs acting without authority and documents missing from the court file. Respondent also suggested corruption was the reason she was not permitted to use a laptop in probate court, particularly in relation to the Sykes case. The letter stated “(a)ny day now this will blow and it may well create a scandal more far reaching than Greylord.” (Adm. Ex. 25 at 2). Respondent’s letter included the statements at issue, i.e.:
I am an attorney running a blog on http://www.marygsykes.com/, which appears to be a very corrupt case, with corruption reaching to the highest levels, including the ARDC?.
So, just let me know if you are on the side of cleaning up the courts or if you are a SOP patronage worker that fears every day to be thrown under the bus for whistleblowing. You get a choice today. I think Judge Evans made his choice. Too bad it’s now permanently on the internet tagged under “corruption.”
(Adm. Ex. 25 at 1-2) (Connelly post).
The seventh post was language from the Table of Torts. The language charged is the language contained in the Table of Torts post, set out above.
The eighth item charged involved a document posted on the blog which purported to be a motion by Farenga to dismiss the Sykes probate case for lack of jurisdiction (motion to dismiss
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post). The motion listed Farenga as the preparer. This post included a notice, suggesting Farenga intended to present the motion to the court. (Adm. Ex. 26 at 15-17). Farenga did not prepare these documents, which were contrary to her position in the Sykes case, or authorize their preparation. Respondent prepared these documents. (Tr. 850-54. 867-68).
The ninth post charged consisted of a facsimile transmission of correspondence from Respondent to Diane Saltoun, at the office of the Illinois Attorney General. The blog stated Respondent’s fax to Saltoun was accompanied by her “famous” Table of Torts. (Adm. Ex. 25 at 12). In her correspondence, Respondent stated:
(w)hile the above case has a long, long history, much of which is documented on a blog to be found at http://www.marygsykes.com, the reality of the situation is that this probate proceeding boils down to garden variety theft, embezzlement, malpractice and malfeasance by attorneys and the court?
Please look at the attached and all the information I will fax you shortly. This is a case that could be bigger than Greylord-what is being done to deprive grandma and grandpa of their civil rights and how the Probate court (routinely) operates.
(Adm. Ex. 25 at 12-13) (Saltoun post).
The tenth post was an entry from August 21, 2012, entitled “(a)ltered court orders, fabricating attorneys, the sage continues.” After referring to orders in the probate case, with links to two of those orders, the language charged appeared. That language read:
(n)othing like the time honored true fashion of if you don’t like what the order said when the parties agreed, just get the judge behind closed doors and get her to alter it. And do it messily and have two ?entered’ stamps on it.
Even a grammar school child can forge a parental note with more skill and care than the minimal amount which was taken in this matter to cover up the tracks of their torts by these bumbling miscreants!
(Adm. Ex. 26 at 18-19) (Aug. 21, 2012 post).
Respondent’s blog contained a disclaimer. The disclaimer identified the authors as “lawyers trying to make a difference to make things better for grandma and grandpa.” (Adm.
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Ex. 17 at 2). Respondent relied on the disclaimer, which, from her perspective, made it clear the blog was not a full or accurate record of the proceedings, but a place where commentary, facts and opinions were stated. (Tr. 303, 1531-32). The disclaimer suggested statements on the blog were statements of opinion and directed the reader where to go for “accurate details.” (Adm. Ex. 17 at 2-3). The disclaimer also stated:
Sorry, but portions of this blog have to be entertaining so we can get the word out?. There is most certainly a great deal of (stinging) truth in it, esp. for the GAL’s [sic], the probate court and a society that ignores (thereby condoning) the sleazy world of probate, and in particular the 18th floor of the Daley Center in Chicago, but everyone needs to understand, these are not pleadings, there is no Motion, Response and Reply set by any court, together with extended legal argument recorded by a court reporter and subject to a Motion to Reconsider if errors or new evidence is found. So don’t’ take it that way. Like a good reporter, do your own due diligence and check with the sources first.
(Adm. Ex. 17 at 3).
The blog also suggested statements on it were truthful. Specifically, the blog stated, as its mottos, “‘(s)unlight is the best disinfectant'” and “‘if the truth can destroy something, then it deserves to be destroyed.'” (Adm. Ex. 17 at 1).
Farenga is an attorney, licensed to practice law in Illinois in 1979. Stern is an attorney, licensed to practice law in Illinois in 1994. Each is in private practice and very experienced in guardianship and probate matters. Neither Farenga nor Stern had encountered Respondent prior to the Sykes case. (Tr. 794-800, 1019-1024).
Schmiedel is an attorney, licensed to practice law in Illinois in 1974. Schmiedel has extensive experience in guardianship and probate matters. Schmiedel became involved in the Sykes probate case in early 2010, as attorney for Toerpe. (Tr. 579-81, 587).
Cook County Circuit Judge Jane Louise Stuart was elected as a judge in 1996. She described extensive experience. Judge Stuart has presided over the Sykes probate case since late 2010. By that time, Mary had already been found disabled. (Tr. 942-45).
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Normally, only one GAL is appointed in a case. Farenga and Stern testified a second GAL was appointed for Mary because, early in the proceedings, there was a court date which Farenga could not attend. Both remained on at the request of the judge because it appeared, early on, the case would be very time-consuming. (Tr. 798-99, 946-48, 1022; Adm. Ex. 1 at 3).
Mary’s estate was not large, and funds were needed for Mary’s care. (Tr. 629, 816-17, 838). The trust, which had owned the white house, contained some money, since the house had been sold. The trust was an entity separate from the probate estate. (Tr. 619-20). The probate estate’s anticipated annual receipts were $13,000. Early in the probate proceedings, Toerpe and Gloria each suggested Mary had limited means and did not own substantial personal property. (Tr. 807-808, 872; Adm. Ex. 1 at 1, 5, 6). Judge Stuart, Farenga and Stern testified, to the best of their knowledge, the only assets in Mary’s estate consisted of her claim to a portion of the Lumbermen’s proceeds and her interest in the brown house. While $150,000 to 200,000 remained from the Lumbermen’s settlement, the court had not determined what, if any, of that amount belonged to Mary. Mary’s net equity in the brown house was not significant, as that property was jointly owned, subject to a mortgage and heavily damaged by mold. (Tr. 588, 593, 818-19, 952-53, 960-61, 1034).
None of the petitions for guardianship mentioned gold coins. (Tr. 869-70; Adm. Ex. 1 at 1, 5, 6). Farenga testified Ditkowsky, not Gloria, first raised the issue of gold coins and the amount changed continuously. (Tr. 870-72). Judge Stuart testified the issue was addressed in court multiple times. According to testimony from Farenga, Stern and Judge Stuart, even though they inquired, they were never presented with specific information or any real evidence showing Mary’s estate included gold coins. (Tr. 884, 957-59, 971-74, 1049-1050). Schmiedel testified no such coins exited. (Tr. 642).
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Farenga and Stern each had spent hundreds of hours on Mary’s matter, for which they had not been compensated. They did not expect to ever be paid in full, since Mary’s estate was of limited value and any funds would be needed for Mary’s own future care. Each testified they had not received any money from the estate. The only money either of them had received was approximately $16,000, which was far less than the value of the time they had spent. While that payment was not court approved, it was paid by the trust, not the estate, so court approval was not required. (Tr. 815-20, 1029-31). Farenga and Stern had not filed fee petitions. Judge Stuart likewise testified no money had been paid to the GALs from the estate. (Tr. 959-60).3 Judge Stuart testified, other than the salary she received as a judge, she had not received any benefit from the Sykes case. (Tr. 961-62).
Schmiedel estimated his firm had provided legal services worth $200,000 in the probate case and related cases. Schmiedel testified the only money he received in the Sykes matter was court-approved fees of $12,500 from Mary’s estate and modest additional fees from the trust, which paid Schmiedel for work relating to the sale of the white house. (Tr. 619-20).
Farenga, Stern and Schmiedel were each asked about numerous specific blog posts and specific allegations of wrongdoing in relation to the Sykes case. In each instance, they testified the allegations were not true. Those allegations included churning fees, receiving improper payments, bribing judges, financially exploiting Mary, stealing from Mary’s estate, ex parte communications with judges to fix the case and altering court orders. None had been in the area of the judges’ chambers in relation to this case. Schmiedel’s testimony indicated there were legitimate reasons for an attorney to be in the area of chambers; for example, one probate judge conducts mediations in chambers. (Tr. 610, 618-42, 646-50, 775-80, 821, 824-43, 846-50, 854-59, 1028-41).
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Judge Stuart testified everything concerning the Sykes matter was handled in open court. Judge Stuart testified she ruled based on the evidence and was not part of any conspiracy to rule in a specific way. While she typically receives a draft order from an attorney involved in a case, Judge Stuart testified, if the draft did not conform to her ruling, she modified the draft before entering her order. Judge Stuart was asked about, and denied, specific allegations of wrongdoing, including bribery, ex parte communications, financial exploitation of Mary and having any personal interest in the Sykes case. (Tr. 959-71).
The blog’s allegation that the probate judge stated she did not have to follow procedures involved the fact that the probate court addressed issues concerning the Lumbermen’s proceeds after the normal deadline for challenging a final judgment. However, the issues presented to the probate court concerned Mary’s capacity to sign the Apportionment Agreement, i.e., the validity of the contract between Mary and Gloria, not the Lumbermen’s judgment. (Tr. 588, 680-83, 800-802, 948-49, 1567-68).
In relation to the allegations of coercion against Gloria, the probate court had entered an order freezing the remaining proceeds from the Lumbermen’s settlement, until ownership of the funds could be determined. According to Judge Stuart’s testimony, when it appeared the funds had been disbursed, Gloria was questioned several times, but claimed not to know the whereabouts of the money. Judge Stuart testified she had her deputies take Gloria to a quiet place, to contemplate whether or not to inform the court where the funds had been deposited. Judge Stuart testified Gloria returned with information three or four minutes later. (Tr. 950-53). Judge Stuart testified she did not direct her deputies to handcuff Gloria and, at the time, was not aware that had occurred. (Tr. 1008-1009). Farenga testified she was not involved in any allegedly overbroad implementation of the order freezing Gloria’s account. (Tr. 891-92, 896-
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97). Schmiedel denied being involved in termination of gas service to Gloria, damage to her home or removal of her furniture. (Tr. 752-55).
Respondent testified she made statements on the blog based on her knowledge of the case and discussions with others. Respondent had attended court proceedings in the probate case and reviewed pleadings and transcripts. She had spoken with family members, including Gloria and Mary’s niece, Kathleen Bakken (Kathleen), as well as Gloria’s former attorney. Gloria’s former attorney had stated he thought the Sykes case was being railroaded and told Respondent, when he asked for discovery, the judge asked why he would want it. Given those discussions, Respondent considered the procedures in the Sykes case highly unusual and the case very corrupt. (Tr. 285, 1349-50, 1571-72, 1582-83, 1588-89, 1600, 1684, 1687-89). Respondent testified she had also received numerous complaints from people dissatisfied with the probate system in general. (Tr. 1531). Respondent testified, when she made the blog posts, she believed her statements were accurate. Respondent testified she never put an entry on her blog which she knew was not true or with reckless disregard for its truth or falsity. (Tr. 300-304, 361-62, 1672, 1675).
Respondent testified, when she was in court, she observed the judge rolling her eyes, cutting Gloria off and telling Gloria to be quiet. Respondent stated a number of orders were entered without a briefing schedule or after pleadings from Gloria had been stricken. Respondent described one occasion, on which she based the claim the GALs and Schmiedel fabricated orders, in which a draft order was prepared, which Respondent and Gloria saw, but the order entered did not match the draft. The alteration involved the inclusion of language stating a motion relating to jurisdiction was being denied, because it had been presented many times in the past. Respondent testified, on one occasion when she was present, she observed the attorneys
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going into the area of the judges’ chambers. (Tr. 1554, 1574-79, 1628-31). Respondent testified many pleadings were missing when she reviewed the court file. (Tr. 1569-70).
Respondent testified she thought she had sufficient information to believe there were improper activities, like those in Greylord, based on her review of the court file. According to Respondent, attorneys had billed for many services, and those bills were approved by the court, but the services were not rendered. While no cash had changed hands, Respondent believed theft had occurred because cash and gold coins were missing. (Tr. 1699-1702).
Respondent testified, in stating certain persons stood to benefit from declaring Mary incompetent and evicting Gloria, she meant they would get substantial fees, which would be taken from sale of Mary’s and Gloria’s home. Respondent stated her reference to churning fees was based on the fact two GALs were appointed and her view the GALs spent a lot of time on matters inappropriately. It was unusual to have two GALs, although Respondent acknowledged Gloria’s litigiousness had played a role in the court’s decision to appoint two GALs. (Tr. 1539, 1596-97, 1602-1604). To the best of Respondent’s knowledge, the GALs had not yet been paid through Mary’s estate. (Tr. 346).
According to Respondent, some of her accusations flowed from the underlying theory that the court lacked jurisdiction and, as a result, none of its actions were legitimate. (Tr. 1616, 1621-28). Other allegations arose from Respondent’s disagreement with specific actions by the court, such as the order freezing Gloria’s accounts and the decision to address issues concerning the Lumbermen’s settlement. (Tr. 1554-55, 1559, 1567-68).
In describing her efforts to verify her allegations, Respondent testified she reviewed the court file and spoke with as many people as possible. Respondent testified she had spoken with Kathleen and with Mary’s sister, Yolanda Bakken (Yolanda) about allegations of missing cash
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and gold coins. Respondent had contacted a coin shop where she believed such coins might have been purchased; Respondent had not obtained any real information from the shop. (Tr. 1676-77, 1681-82). Respondent identified a number of additional steps she took to investigate. According to Respondent’s testimony, some of those steps were still in progress, such as investigating the size of Farenga’s mortgage, which Respondent considered to be disproportionately large. In other instances, Respondent had taken the actions only recently, such as having an investigator run background checks. Respondent stated she checked property records, particularly for judges, which Respondent described as raising some questionable issues. (Tr. 1722-28, 1731-46). In relation to the size of Farenga’s mortgage and various property transfers in which Farenga’s husband had been involved, Respondent testified she had not yet been able to conclude there had been any wrongdoing or criminal conduct. (Tr. 1738-39). Respondent also testified she had not found any suspect mortgage issues involving the judges in the Sykes matter. (Tr. 1740-41).
In relation to the Connelly post, Respondent considered it highly improper that she was not permitted to blog during the Sykes probate proceedings. (Tr. 1584-88). Respondent testified she wrote to Connelly to seek his assistance in letting her use her laptop, so she could blog and thereby, in her view, help clean up corruption. (Tr. 1590-92). In asserting corruption had reached the highest levels, including the ARDC, Respondent testified she meant numerous complaints had been filed with the ARDC but did not receive responses Respondent considered appropriate. (Tr. 1589). The Connelly post included a comment that Cook County Chief Judge Timothy Evans was permanently tagged under corruption. Respondent described an internet tag as an index feature which allows people to find a particular post or brings people to the blog who might be interested in its contents. She testified other blogs concerning probate used corruption as a tag. (Tr. 1592, 1813, 1820-22).
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Gloria testified, beginning in 2009, she and Respondent had numerous discussions about corruption in the probate court of Cook County. Gloria testified she told Respondent, in the probate division, it appeared there was a cottage industry of attorneys, the court ignored applicable statutes and there was lawlessness and discrimination. (Tr. 517-18, 521, 524).4
Yolanda testified the probate judge ignored her and Gloria, the GALs and the court had not really listened to what was going on, and the GALs had not properly informed the court of the family’s concerns about Mary. Yolanda testified, when she tried to inform the court of Toerpe’s interference with her efforts to visit with Mary and an ensuing physical altercation, the judge did not permit her to do so and told her it did not matter. Yolanda acknowledged having hearing problems. Yolanda was suspicious, because she did not know where the proceeds from the sale of Mary’s house had gone. Yolanda also believed Mary had quite a bit of gold coins. Yolanda provided conflicting testimony as to any discussions she may have had with Respondent about Mary’s estate. Yolanda assumed someone had been paying the GALs. Yolanda did not have any information about any fees the GALs may have received or any proof the GALs had stolen from Mary’s estate. (Tr. 1184, 1187-89, 1235-37, 1252-56, 1290-1307, 1325).
Kathleen had been at many court hearings and had spoken with Respondent many times about her concerns with Mary’s matter. Kathleen testified multiple decisions had been made which differed from what she thought the decisions should have been. Those included the decision to appoint a guardian and the choice of Toerpe as guardian, over objections from other relatives. To Kathleen, it seemed like the guardianship was a “done deal.” Kathleen testified no one had listened to Mary or dealt with issues as to the lack of proper service. From Kathleen’s perspective, Gloria’s position was ignored. She gave examples, including a refusal by Farenga to give the court a document, ostensibly written by Mary, because Farenga believed Gloria had
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dictated the document. That incident was part of the basis on which Respondent relied in alleging impropriety by the court and GALs. Kathleen testified, on some occasions when she was in court, the order entered did not match what Kathleen had heard. She also testified the GALs covered for Toerpe, did not follow up on matters reported to them, ignored “red flags” and did not fully inform the court of Mary’s circumstances. Kathleen gave examples including, but not limited to, the altercation between Yolanda, Toerpe and Toerpe’s husband, an incident in which Mary required emergency room treatment due to lack of proper care by Toerpe and alleged inaccuracies in Toerpe’s inventory. Kathleen testified Toerpe did not permit other relatives to visit with Mary, even though the court ordered Toerpe to allow such visitation, and the GALs did not inform the court about visitation problems, even though Kathleen told Stern about those problems. (Tr. 1339, 1344-46, 1348-55, 1358-64, 1370-73, 1382-92, 1407-1418).
Kathleen testified it seemed someone was benefitting. (Tr. 1335). The number of people involved and hours billed seemed extreme to her. In Kathleen’s view, some proceedings went on longer than they should have, while other things did not get the attention they deserved. She based her view that the judges and GALs had taken money from Mary’s estate on the fact that Toerpe had been appointed guardian and given control over Mary’s assets. Kathleen did not have evidence, knowledge or information the GALs were taking money or overcharging. Kathleen had not told Respondent she thought probate judges were fixing cases or taking money improperly or that the judges or GALs were engaged in any criminal activity. (Tr. 1350-52, 1355-62, 1407-1408).
B. Analysis and Conclusions
Respondent is charged with violating Rules 8.2 and 8.4(c) due to statements made on her blog. The specific statements on which the charges are based are set out above. Although we referred to some other statements, our findings of misconduct are based solely on those
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statements which were specifically charged in the Complaint. Given the testimony, and the manner in which the statements at issue appeared on the blog, we find Respondent authored all the statements which were specifically charged in the Complaint.
A lawyer shall not make a statement the lawyer knows is false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer. Ill. Rs. Prof’l Conduct R. 8.2(a). For the reasons stated below, we find the statements at issue impugned the integrity of the judges involved in the Sykes guardianship case, the statements were false and Respondent made the statements with reckless disregard for their truth or falsity. Therefore, the Administrator proved Respondent violated Rule 8.2 as to the statements involving the judges. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Ill. Rs. Prof’l Conduct R. 8.4(c). Having proved Respondent made statements which violated Rule 8.2(a), the Administrator also proved, by making these statements, Respondent engaged in conduct involving dishonesty, in violation of Rule 8.4(c). In re Ditkowsky, 2012PR00014, M.R. 26516 (Mar. 14, 2014). We also find, for the reasons stated below, Respondent’s statements accused the GALs of serious misconduct, accusations which were false and which Respondent similarly made with reckless disregard for their truth or falsity. While the GALs are not within the scope of Rule 8.2, (Ditkowsky, 2012PR00014 (Hearing Bd. at 27)), this provides an additional basis for our finding the Administrator proved Respondent violated Rule 8.4(c).5
The statements on which the charges are based, particularly considered as a whole, clearly convey the message that corruption affected the Sykes case and its outcome, with the judges and GALs benefitting, to Mary’s detriment. Specifically, the April 19 and April 25 posts accuse the attorneys of churning fees, having clout in probate and being “court-connected.”
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According to the April 19 post, “the money trail” leads directly to the GALs and the guardian’s attorneys. The Black post suggests the result was pre-ordained, the product of corruption, a one-sided decision made by a court which did not consider itself bound by the rules. This theme continues in the May 24 post, according to which the case was railroaded and the decision was a “done deal,” with the court and GALs rubber stamping lies placed before them. The June 1 post suggests ex parte communication with the court, resulting in improper, biased decision making. The August 21 post reiterates this theme, suggesting the attorneys got the judge “behind closed doors” and had her change court orders to better suit their position.
The term “corruption” appears repeatedly in the statements at issue. Corruption implies dishonest or illegal behavior, such as taking bribes. Webster’s New World Dictionary and Thesaurus 140 (2d ed. 2002). This meaning is clear from Respondent’s statements, particularly when the statements at issue are considered as a whole. Respondent’s repeated references to Greylord in the charged statements remove any possible doubt as to the intended message. Operation Greylord was a wide-reaching federal investigation of judicial corruption in Chicago. Bracy v. Gramley, 520 U.S. 899, 901, 117 S.Ct. 1793 (1997). As Respondent’s testimony demonstrates she knew, Greylord uncovered extensive corruption in the local court system, including bribes being paid to multiple judges to obtain favorable results in pending cases. See Guest v. McCann, 474 F.3d 926, 929 (7th Cir. 2007). The statements at issue suggest the same thing was happening in the Sykes case. Respondent further alleges illegal behavior in the Saltoun post, in which Respondent explicitly states theft and embezzlement are occurring in the Sykes case.
The statements at issue, particularly considered as a whole, clearly impugn the integrity of the judges and attorneys in the Sykes probate case. Respondent’s statements create an
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impression that Mary was found disabled without supporting evidence, by a rogue court acting without jurisdiction, which did not analyze the facts or apply the applicable law and made decisions to accommodate others based on favoritism and payoffs. Respondent’s statements likewise suggest the GALs were not doing their jobs and not protecting Mary’s well-being, even though they were told of circumstances which should have caused them to challenge the appointment of a guardian in general and the choice of Toerpe in particular, acting in this manner because they had been paid off and were receiving grossly excessive fees. Comments such as “follow the money trail,” references to Greylord and allegations that substantial assets were missing from Mary’s estate, clearly infer that money was taken from Mary’s estate and used to pay off the GALs and the court. Respondent’s statements imply the GALs were paid off to look the other way and do nothing, and the court was paid off to rubber-stamp the guardianship and appointment of Toerpe, regardless of the detriment to Mary.
Based on the evidence, we find such suggestions false. Judge Stuart, Farenga, Stern and Schmiedel all impressed us as credible witnesses. Given their testimony, we conclude no bribes were offered to or accepted by the judges or GALs and no improper benefits were received, by the judges or GALs. The testimony of these witnesses also convinced us there were no improper ex parte communications, improper altering of court orders or any other dishonest conduct in relation to the Sykes case. There was also no indication the judges or the GALs made decisions or adjusted their conduct based on dishonest or unethical factors.
The fact that some persons involved in the Sykes guardianship, for example, the judge who found Mary disabled, did not testify does not change our conclusion. Judges are presumed to be impartial, and allegations of deliberate corruption by a court are presumed false. In re Amu, 2011PR00106, M.R. 26545 (May 16, 2014).
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The fact Respondent’s statements were false does not conclude our inquiry. We must also consider whether Respondent made the statements knowing they were false or with reckless disregard for their truth or falsity. This is the state of mind Rule 8.2(a) expressly requires. This is also the state of mind required for the charges of misconduct, under Rule 8.2 or 8.4(c), to pass constitutional muster. In re Zurek, 99 CH 45, M.R. 18164 (Sept. 19, 2002); In re Palmisano, 92 CH 109, M.R. 10116 (May 19, 1994).
Attorneys have certain First Amendment rights. Zurek, 99 CH 45 (Review Bd. at 11). Lawyers have a right to criticize the state of the law. In re Sawyer, 360 U.S. 622, 631, 79 S.Ct. 1376 (1959). They may also fairly criticize a judge’s rulings. Amu, 2011PR00106 (Review Bd. at 11). Similarly, there is a public interest in permitting attorneys to make proper complaints of misconduct by judges and other lawyers. Palmisano, 92 CH 109 (Review Bd. at 8).
However, baseless and unfounded accusations that a judge is corrupt do not fall within the boundaries of protected speech. Amu, 2011PR00106 (Review Bd. at 11-12). The First Amendment does not shield an attorney from professional discipline for making false statements with knowledge of their falsity or reckless disregard for their truth. In re Hoffman, 08 SH 65, M.R. 24030 (Sept. 22, 2010). Likewise, First Amendment protections do not apply where an attorney makes scandalous and defamatory accusations that have no basis in fact. Zurek, 99 CH 45 (Review Bd. at 11).
Some statements on the blog are matters of opinion or criticisms directed at the state of the law. We do not base our findings of misconduct on any such statements. The statements at issue are statements which impugn the integrity of members of the judiciary and other attorneys.6
Respondent testified she believed her statements were true. However, an attorney’s subjective belief in the truth of his or her statements is not the critical consideration. In re
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Greanias, 01 SH 117, M.R. 19079 (Jan. 20, 2004). A statement made with no reasonable basis in fact is a statement made with reckless disregard for the truth. In re Harrison, 06 CH 36, M.R. 22839 (Mar. 16, 2009).
Respondent’s accusations of gross improprieties by the judges and GALs in the Sykes probate matter lacked any legitimate factual basis. There simply was no reasonable basis on which Respondent could have believed the probate judges were bribed to reach a specific result in the Sykes case, entered orders based on improper agreements or ex parte communications or engaged in similar types of misconduct. Similarly, there was no reasonable basis on which Respondent could have believed the GALs reaped any improper benefits from the Sykes case or were paid to look the other way, while Mary was abused and her estate looted.
According to the testimony presented, the court’s decisions were issued based on evidence and argument, not any impropriety. Judge Stuart, Stern, Farenga and Schmiedel all denied any impropriety in relation to the Sykes matter, no bribes, no improper payments, no ex parte communications. We found their testimony credible. Respondent did not present any real information to show she had any good faith basis to believe otherwise.
Stern and Farenga each received some funds in relation to the Sykes matter. Each had also performed a significant amount of work. These attorneys had not been compensated for the vast majority of that work. This fact does not indicate dishonesty or malfeasance on their part, nor is it inherently suspect. Instead, particularly after hearing these witnesses testify, we were convinced Farenga and Stern were acting out of concern for Mary and her well-being, and we saw no indication they were taking any funds improperly.
We also found no real evidence Mary had a sizeable estate, from which funds had been, or were being, stolen. The evidence indicated exactly the opposite. Mary’s assets consisted of
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an interest in real estate with very limited net value, a still undetermined claim to a portion of settlement proceeds, and minimal income and personal property. Respondent alleged the estate contained much more, including gold coins. The probate court conducted an inquiry, but found no evidence Mary’s estate contained gold coins.
Respondent testified she made some efforts to investigate. Respondent’s testimony confirms she had not come up with anything to substantiate her suspicions. In fact, Respondent’s statements reflected that she had not undertaken any meaningful investigation, prior to making her accusations against the judges and the GALs in the Sykes case.
The Sykes probate case was obviously a contentious legal proceeding. Mary’s relatives disagreed vehemently as to her needs and the manner of her care. The disagreement was presented to the court. The court, as it had to do to resolve the issues presented to it, made decisions. Respondent and some of Mary’s relatives disagreed with those decisions. We express no opinion on the propriety of any of the rulings in the Sykes case. However, disagreement with a judge’s rulings does not provide an attorney with a reasonable basis to allege the judge acted corruptly. Amu, 2011PR00106 (Review Bd. at 10). This would be true even if a ruling may have been incorrect. In re Feldman, 03 CH 23, M.R. 20132 (May 20, 2005).
We reach a similar conclusion in relation to Respondent’s accusations against the GALs. Given the evidence presented, there was no logical or reasonable basis for those accusations. Rather, it appears clear to us that the accusations were made essentially because the GALs did not take positions which aligned with the views of Respondent and Gloria.
Based on the evidence, we found absolutely no rational basis on which Respondent could have believed her allegations of corruption, bribery, Greylord-type activity or the like were true. Therefore, in making such allegations, Respondent acted with reckless disregard for the truth or
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falsity of her statements. See Amu, 2011PR00106 (Hearing Bd. at 8) (reckless disregard for the truth is shown where there is no reasonable basis for believing the statement is true).
Respondent suggests she made her comments as a private person, not as an attorney. The facts do not support this theory. At various points, the blog specifically indicates Respondent is an attorney, e.g. identifying the authors as “lawyers trying to make a difference to make things better for grandma and grandpa” and stating “it takes an attorney to make those comments?” In addition, Respondent testified it took legal knowledge to post and author the statements on the blog. Further, despite her theory that she made her statements solely as a private person, Respondent’s public false and baseless accusations of corruption, by specific individuals in relation to a specific case, properly subject her discipline. Ditkowsky, 2012PR00014 (Review Bd. at 12).
The blog’s disclaimer does not shield Respondent from discipline. Despite the disclaimer, which itself asserts some statements on the blog are true, other portions of the blog suggest statements on the blog are true. The statements with which Respondent was charged clearly accused the judges and GALs of corruption, accusations which were false and lacking in any reasonable basis. The fact that elsewhere on the blog Respondent suggests that readers do further investigation does not alter this reality.
II. Respondent is charged with engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d).
A. Evidence Considered
In addition to the evidence in Section I A, we consider the following evidence.
After Respondent was disqualified from representing Gloria in the probate case, Respondent continued to go to court in the probate case. Respondent assisted Gloria during some of those hearings, doing things such as suggesting questions for Gloria to ask. Respondent
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testified she did this as a friend, not as an attorney. However, in Gloria’s bankruptcy proceeding, Respondent submitted a claim for fees which included billing for time in the probate matter, after Respondent was disqualified. Respondent and Gloria also continued to communicate via e-mail. (Tr. 283-86, 696, 808-809; Adm. Ex. 15 at 41-74).
Stern testified, even though Gloria was acting pro se in the probate case, much of what she did was taken from the blog. According to Farenga and Stern, the blog posts affected the probate case in that Gloria, with Respondent’s support, raised various ancillary issues, which distracted from the real issues in the probate case. Because the parties were dealing with matters raised on the blog, other issues, such as Mary’s entitlement to part of the Lumbermen’s settlement, remained unresolved for years. (Tr. 859-60, 1041-42). Farenga also testified Respondent’s blog posts also created extra work for Farenga, including the need to follow up on the veracity of statements made. (Tr. 924-25).
Schmiedel and Judge Stuart provided similar testimony, stating significant time had been spent dealing with frivolous motions filed by Gloria, which contributed to delays in resolving the case. Schmiedel testified the blog posts adversely affected the probate matter by creating the need to defend against baseless allegations and supporting Gloria in making endless challenges to the jurisdiction of the probate court. Judge Stuart also noted Gloria would bring up issues, particularly jurisdiction, which had previously been decided. Schmiedel testified the blog prompted Gloria to file baseless motions and complaints, in probate court and other courts, and, consequently, created additional work in the courtroom. (Tr. 651, 701-703, 954, 968-69).
B. Analysis and Conclusions
Attorneys may not engage in conduct that is prejudicial to the administration of justice. Ill. Rs. Prof’l Conduct R. 8.4(d). To prove a violation of Rule 8.4(d), the Administrator must prove the administration of justice was actually prejudiced by the attorney’s misconduct. In re
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Karavidas, 2013 IL 115767, par. 91. A violation of Rule 8.4(d) can be found where the attorney has engaged in misconduct which undermines the judicial process. Id. at par. 94. Baseless accusations of corruption against judges and attorneys involved in a pending case tend to interfere with the effective functioning of the judicial process. See Hoffman, 08 SH 65 (Review Bd. at 15). Based on the evidence in this case, Respondent’s conduct prejudiced the administration of justice, and the Administrator proved Respondent violated Rule 8.4(d).
As set out above, members of the Sykes family disagreed over the guardianship and the appointment of Toerpe. Respondent had been hired to represent Gloria in matters involving Mary, and Respondent attempted to appear on Gloria’s behalf in the guardianship case. Although she was disqualified and could not act as counsel of record, Respondent remained clearly aligned with Gloria and continued to act in relation to the Sykes probate case, attending court and advising Gloria. Against that background, Respondent proceeded to make baseless accusations of misconduct by the judges and attorneys involved in the pending probate case and false, unfounded allegations which cast doubt on the validity of those proceedings.
According to the credible testimony of the Administrator’s witnesses, as a result of Respondent’s false blog posts, the parties in the Sykes case became embroiled over frivolous and ancillary matters. Statements Respondent made on the blog also served to advise Gloria what to do and encourage her to take unreasonable positions in court, such as the repeated challenges to the court’s jurisdiction. The court and counsel spent significant time and effort dealing with topics raised on the blog, investigating the veracity of statements made on the blog and defending against allegations made on the blog. All of this caused undue complications and significant delays in resolving the real issues in the probate case. Based on the evidence, Respondent’s misconduct undermined the proceedings in the Sykes case.
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In Karavidas, the Court concluded the attorney’s conduct did not undermine the administration of justice because Karavidas was not acting as an attorney and was not involved in the judicial process at the time of his misconduct. Karavidas, 2013 IL 115767 at par. 97. Karavidas’s actions were performed solely in his capacity as executor of his father’s estate and the alleged misconduct primarily involved loans Karavidas made to himself from the estate. The Court determined the fact that his conduct eventually became the subject of court proceedings did not suffice to prove Karavidas engaged in conduct prejudicial to the administration of justice. See Id. at pars. 90, 96.
There is a significant difference here. For the reasons stated above, even though she was not counsel of record, Respondent continued to be involved in the Sykes probate case and her misconduct directly impacted that case and persons connected with it. Respondent made false and completely unfounded allegations that the judges and attorneys involved in that pending court proceeding were corrupt. Her conduct, unlike that in Karavidas, was explicitly directed toward the pending court proceedings.
Karavidas also directs that a complaint must plead specific facts to support a charge under Rule 8.4(d). Id. at pars. 72, 97. Based on this principle, in some cases involving unfounded accusations of corruption against judges and other attorneys, the Review Board has reversed findings of conduct prejudicial to the administration of justice. Ditkowsky, 2012PR00014 (Review Bd. at 11); Amu, 2011PR00106 (Review Bd. at 13). The pleading requirements of Karavidas, however, do not preclude finding a violation of Rule 8.4(d) here.
Karavidas is based on the requirement that the complaint sufficiently inform the attorney of the misconduct charged to satisfy due process principles and insure the misconduct charged is misconduct for which professional discipline may be imposed. Karavidas, 2013 IL 115767 at pars.
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73, 103. In Karavidas, the conduct which allegedly prejudiced the administration of justice was a breach of fiduciary duty, conduct not specifically proscribed by the Rules of Professional Conduct. In that context, the Court observed: “while an attorney’s breach of fiduciary duty to a nonclient could constitute an act that is prejudicial to the administration of justice? if an attorney is to be disciplined for such conduct, the Administrator must, as a matter of due process, plead and prove that the breach of fiduciary duty had a prejudicial effect on the administration of justice.” Id. at par.97.
The decision in any given case depends on the language of the complaint and the evidence in that specific case. See In re Kirby, 2010PR00098, M.R. 26679 (May 16, 2014) (Review Bd. at 11) (affirming the finding of a Rule 8.4(a)(5) violation). In this case, the Complaint was sufficient to put Respondent on notice of the precise misconduct charged. That misconduct was not nebulous or uncertain. The Complaint charged Respondent with misconduct based on false and unfounded blog posts alleging corruption by the GALs and the judges in a specific pending court proceeding. The Complaint identified certain specific statements to support the charges of misconduct. We have found those statements were false and Respondent made them with reckless disregard for their truth or falsity, in violation of Rules 8.2(a) and 8.4(c). From our perspective, the potential of such misconduct to impact the administration of justice is abundantly clear, and sufficiently so to satisfy the pleading requirements of Karavidas.
Our finding Respondent violated Rule 8.4(d) does not affect our sanction recommendation. That recommendation is based on the proven misconduct, not the number of Rule violations found. In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051 (1989). We would recommend the same sanction with, or without, a finding Respondent violated Rule 8.4(d).
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III. Respondent is charged with presenting, participating in presenting or threatening to present criminal charges to obtain an advantage in a civil matter, in violation of Rule 8.4(g).
A. Evidence Considered
We consider the evidence outlined in Sections I A and II A. In addition, we consider the following evidence.
The Connelly post consisted of a letter from Respondent to Connelly, in which Respondent stated Chief Judge Evans referred her to Connelly’s office, in relation to her complaints that courtroom personnel, particularly in courtroom 1804, were interfering with her use of a laptop. In context, it appears Respondent intended to refer to the courtroom in which the Sykes case was pending; other evidence suggests this was courtroom 1814. (Adm. Ex. 25 at 1; Adm. Ex. 26 at 1). In her letter, Respondent complained of corruption in probate court and the Sykes case and objected attorneys were not allowed to use laptops when they were “trying to investigate and report the very important news that our Probate court is utterly corrupt.” (Adm. Ex. 25 at 1). Respondent requested that Connelly respond, by permitting attorneys to use laptops or informing Respondent when he was available for a deposition, in anticipation of Respondent filing a civil lawsuit. (Adm. Ex. 25 at 1). Respondent testified she was asking Connelly to help alleviate corruption, by letting people blog in court. (Tr. 1815-16).
The Saltoun post was correspondence Respondent sent to Saltoun, at the office of the Illinois Attorney General. Respondent designates Saltoun’s title as Executive Director or Executive Inspector General. (Adm. Ex. 25 at 12). In addition to posting the correspondence to Saltoun on the blog, it appears Respondent sent a copy to Ditkowsky. (Id. at 13). In the Saltoun post, Respondent stated the Sykes probate proceeding “boils down to garden variety theft, embezzlement, malpractice and malfeasance by attorneys and the court.” (Id. at 12). Respondent complained there was “corruption, cronyism, embezzlement” and suggested gold
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and silver coins worth approximately $1 million were missing from Mary’s estate. (Id. at 12). Respondent complained the ARDC had done nothing to clean up the court system and Judge Evans and court security had done nothing about her inability to blog from the courtroom or about documents allegedly missing from the Sykes court file. Respondent directed Saltoun’s attention to the Table of Torts and concluded with the suggestion that this case could be bigger than Greylord. (Id. at 12-13). Respondent testified she posted her fax to Saltoun on the blog to inform others of her current activities. She stated she did so as she thought others might be interested and as a way to show people how to put together a case and ask that it be investigated. (Tr. 1620-21).
B. Analysis and Conclusions
A lawyer may not present, participate in presenting or threaten to present criminal or professional disciplinary charges to obtain an advantage in a civil matter. Ill. Rs. Prof’l Conduct R. 8.4(g). The Administrator must prove the elements of the Rule violation charged. In re Owens, 144 Ill. 2d 372, 378, 581 N.E.2d 633 (1991). The Administrator must do so by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). The Administrator did not prove the elements required for a violation of Rule 8.4(g), by clear and convincing evidence.
Respondent is charged with violating Rule 8.4(g) based on the presentation or threat of criminal charges. To prove this charge, the Administrator was required to prove clear action presenting or threatening to present criminal charges, communicated to the intended target of such a prosecution. See In re Lavelle, 94 CH 187, M.R. 11951 (Mar. 26, 1996) (Hearing Bd. at 11). There also must be a clear connection between the presentation or threat of criminal charges and a purpose of gaining an advantage in a civil matter. See In re Schaaf, 99 SH 64, M.R. 17387 (Mar. 23, 2001).
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The following cases illustrate the type of proof which satisfies the requirements of Rule 8.4(g). In In re Mauro, 06 CH 18, M.R. 21548 (May 18, 2007), while representing a client in a claim for civil damages, Mauro communicated with the opposing party and suggested he would pursue criminal charges if the opponent did not agree to settle the civil claim, which arose out of the same incident. The attorney in In re Levin, 05 CH 71, M.R. 22344 (May 19, 2008) was representing a client in a pending civil lawsuit. The opposing party filed a motion to dismiss, supported by an affidavit, signed by Burke, an attorney. Levin informed Burke he intended to depose Burke and send the deposition transcript to the ARDC. The Hearing Board found a violation, concluding Levin was using the threat of disciplinary proceedings to attempt to get Burke to change the position stated in his affidavit. Levin, 05 CH 71 (Hearing Bd. at 19).
The case involving Ditkowsky, whose misconduct arose out of his involvement in the Sykes matter, provides a helpful comparison. Ditkowsky sent e-mails to Farenga, Stern and Schmiedel, with copies to law enforcement personnel, in which Ditkowsky stated the other attorneys were involved in illegal conduct, he was giving them an opportunity to back off and law enforcement officials had no excuse not to prosecute. Ditkowsky also sent an e-mail to the GALs, with a copy to local police, in which Ditkowsky suggested substantial property had not been inventoried and could be split, and called on the recipients to ask the State’s Attorney to investigate. Farenga and Stern testified they understood Ditkowsky’s e-mails to threaten criminal charges. Ditkowsky acknowledged part of the reason he sent these e-mails was to induce the GALs to “take a stand for Mary” and inform the court about the problems Ditkowsky believed were occurring in relation to Mary. The Hearing Board found a violation of Rule 8.4(g), based on its conclusions that statements in Ditkowsky’s e-mails clearly implied a threat to bring criminal charges, Farenga and Stern interpreted the e-mails as threatening criminal
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prosecution and Ditkowsky was seeking to prompt Farenga and Stern to take a position consistent with the position Ditkowsky was seeking to advocate in the Sykes matter. Ditkowsky, 2012PR00014 (Hearing Bd. at 34-35).
This case is different. Many of the statements with which Respondent was charged allege criminal activity was occurring. However, the other elements necessary to prove a violation of Rule 8.4(g) were not established, particularly not by the requisite clear and convincing evidence.
None of the blog posts with which Respondent was charged clearly communicated an effort to use or threaten criminal prosecution to try to induce another person to act in a specific way in relation to the Sykes case. Respondent communicated with Connelly because he was responsible for courthouse security, not enforcement of the criminal laws. While her correspondence suggested corruption existed, Respondent did not ask Connelly to investigate or prosecute any criminal conduct. Her communication concerned her ability to blog. In the Saltoun post, Respondent recited various problems she believed existed in the Sykes case, but the Administrator did not establish the link, required by Rule 8.4(g), to any effort to gain an advantage in a civil case. This is particularly true because the evidence did not show Respondent communicated with the GALs, Schmiedel or others involved in the Sykes litigation about her correspondence with Saltoun. The motion to dismiss post seeks to prompt Farenga to act differently in the Sykes case, but does not threaten criminal charges if she does not do so.
In this case, we also note Respondent’s communications were not communicated directly to persons Respondent was accusing of criminal conduct or, with the possible exception of the Saltoun post, law enforcement officials. Rather, Respondent’s statements were made generally,
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on a public blog. Given the facts of this case, and the content of the statements at issue, the Administrator did not prove a violation of Rule 8.4(g), by clear and convincing evidence.
It is clear Respondent did not like the manner in which other persons were acting in relation to the Sykes case. She also clearly expressed her view that criminal conduct was occurring. However, the Administrator did not clearly and convincingly establish, in her blog posts, Respondent was attempting to use the threat of criminal prosecution to induce others to act differently in relation to the Sykes matter. Therefore, based on the evidence in this case, the Administrator did not meet his burden of proving Respondent violated Rule 8.4(g).7
IV. Respondent is charged with engaging in conduct which tends to defeat the administration of justice and to bring the courts or legal profession into disrepute.
A. Evidence Considered
We consider the evidence set out in Sections I A, II A and III A.
B. Analysis and Conclusions
The allegation Respondent engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute does not provide a separate basis for finding professional misconduct. Karavidas, 2013 IL 115767, par.86. Therefore, that charge is dismissed.
EVIDENCE IN MITIGATION AND AGGRAVATION
Mitigation
Respondent was licensed to practice law in Illinois in 1986. She is also a patent attorney. (Tr. 254-55).
Respondent lived in the same neighborhood as Mary and Gloria. She had provided legal services to Gloria at times. (Tr. 274, 280-81, 524). Respondent knew Mary before December 2009 and thought Mary was doing well when Gloria was caring for her. (Tr. 1661-62).
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Respondent testified the purpose of the blog was to bring problems in probate court to the attention of the general public. Her goal was to remedy problems she thought existed in probate court and to help other people involved in the probate process. (Tr. 1538-39). Respondent testified she was also seeking to inform the public, so people would be better informed about probate court in general and the Sykes case in particular. (Tr. 1618-20). In Respondent’s view, publishing the blog was also a way of helping Mary and Gloria. (Tr. 412; Adm. Ex. 17 at 20).
It appears various persons communicate via blogs, concerning what they perceive as the evils of the probate system, particularly in relation to guardianships for elderly persons. The opinions expressed on these blogs suggest the system permits elderly persons to be declared incompetent, leaving them vulnerable to isolation and financial exploitation. (Adm. Ex. 39 at 48-57; Adm. Ex. 41 at 33-37, 43-44; Adm. Ex. 44 at 22-31).
Beverly Cooper (Beverly) testified for Respondent as a character witness. In addition to working in a family business, Beverly produces a cable television program on community affairs. Beverly has known Respondent for three or four years. Respondent and Beverly share a concern about probate court. (Tr. 561-66). Beverly testified Respondent had helped many people without being paid. Beverly described Respondent as absolutely dedicated, honorable and charitable, a person of integrity, who considered others before herself. (Tr. 567-69).
Kenneth A. Cooper (Kenneth) also testified as a character witness. Kenneth has known Respondent for two or three years. He considers her honest, trustworthy, hardworking and dedicated. In addition to work in manufacturing, Kenneth produces a blog called ProbateSharks.com. In that capacity, Kenneth comes in contact with many people having difficulty with probate courts, in Cook County and throughout the country. Kenneth testified
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Respondent had helped many such persons, free of charge. Kenneth testified Respondent made herself available “all day, any day” and helped anyone who needed help. (Tr. 571-74).
Aggravation
Farenga testified the blog caused her embarrassment and adversely affected her reputation. When Farenga’s name was searched on Google, the blog came up. Farenga testified she had spent enormous amounts of time dealing with Respondent’s accusations. (Tr. 861-64). Farenga testified “I can’t even count the ways that this has adversely affected me financially, emotionally, my reputation.” (Tr. 864).
Stern testified the blog and its allegations came up immediately when an internet search was done on him. Stern testified, since many people use the internet for research, the blog and its allegations were what clients or potential clients would see about him. (Tr. 1036, 1042-43).
Schmiedel testified the blog impugned his integrity with no basis, yet he did not have a fair ability to counter the accusations. Schmiedel testified the blog posts had cost him, his firm and the GALs, as well as Mary’s estate, time and money and forced them to continuously attempt to defend against baseless attacks. Schmiedel testified the Sykes case should have been a simple one, yet the estate and everyone involved with it had been caused huge pain and expense. (Tr. 650-53). In relation to the blog posts, Schmiedel testified:
Obviously they’re upsetting ?. personally and professionally?Nobody should have to endure this, nobody. These are lies. There’s no basis for these lies. They know there’s no basis for these lies. They’re ongoing continuously?
Who should be put through this? I represent a client in a probate proceeding. It should be a simple case. Mary’s doing really well?
And to have to endure this and have the public look at these things and say, wow, is Peter Schmiedel corrupt? Is he bribing judges in the Probate Division? Is that how he practices law?
That’s what we’re accused of.
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(Tr. 652-53).
When asked about the effect of the blog posts, Schmiedel testified various “unnecessary satellite litigation” had been filed arising out of the Sykes matter, including bankruptcy cases and a federal lawsuit against the entire Probate Division. (Tr. 651). Respondent had filed multiple suits, against persons involved in the Sykes case, which had been dismissed. In addition, the day before her disciplinary hearing began, Respondent filed a lawsuit against the GALs, Schmiedel and the Administrator, alleging violation of civil rights. (Tr. 451-56, 654-58, 861-64, 1043; Adm. Ex. 51).
Respondent testified, on the blog, she was not making accusations of criminal conduct and her allegations were of civil torts. Respondent stated this was because she did civil legal work and was not a criminal lawyer. (Tr. 1595, 1704, 1711-12, 1747-48).
For a time, after summer 2013, Respondent took down parts of her blog and password protected the blog. According to Respondent’s testimony, she did so after certain incidents occurred, which Respondent interpreted as threats. (Tr. 319-23). Respondent also made changes to the blog. As a result, evidence was presented as to the content on the blog at specific points in time. (Tr. 196-247, 335-69; Adm. Exs. 17-32, 34-49). Respondent testified she later put back portions of the blog, but modified its language, to use more generic terms or remove terms such as “corruption.” (Tr. 322-26, 338). According to Respondent’s testimony, she rephrased the blog based on advice from attorneys, whom she consulted in relation to this disciplinary matter. (Tr. 381-84). She also testified she sometimes rephrased things on the blog to “see how they would look or how (her) audience would react.” (Tr. 362). After deciding the more generic version “didn’t work,” and given the preferences of her audience, Respondent changed most, if not all, of the blog posts back to the original version. (Tr. 372-73, 381-84).
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Respondent denied charging Gloria fees for her time on the blog. Respondent, however, kept track of the time she spent on the blog and prepared a bill to Gloria. Respondent testified she did not expect Gloria to pay her for that time, which Respondent considered the “cost of corruption.” (Tr. 384-87). Respondent defined the cost of corruption as the time she spent assisting persons who sought her assistance but could not afford to pay. At the time of the hearing, Respondent’s blog reported the cost of corruption was over $500,000. On her blog, Respondent sought donations to offset the cost of corruption. (Tr. 387-88, 395-96). She had received a few donations, once in a while. (Tr. 1748).
The Administrator questioned Respondent about certain recent blog posts. These included a blog post from March 9, 2014, before the hearing in this case concluded, in which Respondent referred to a fire, in which a number of persons died. In that post, Respondent asserted the fire had been set intentionally, by employees of the Cook County Public Guardian, for the purpose of destroying records. (Tr. 1767-72). Respondent testified she made this post based on stories she had heard from older attorneys and “probate court victims.” (Tr. 1771). Respondent could not remember the names of any of these attorneys. She had not conducted any investigation into the truth of her accusation that the fire was set intentionally. (Tr. 1771-77).
RECOMMENDATION
In making our recommendation as to discipline, we consider the proven misconduct, as well as any aggravating or mitigating factors. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). We may consider the deterrent value of a sanction and the need to impress on others the seriousness of the misconduct. In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000). In determining a sanction, we are also guided by the purposes of discipline, which is not to punish the attorney, but to protect the public from incompetent or unscrupulous practitioners,
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maintain the integrity of the profession and protect the administration of justice from reproach. Twohey, 191 Ill. 2d at 85-86. While the system seeks some consistency in sanctions for similar misconduct, each case is unique and the sanction must be based on the circumstances of the individual case. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993).
The Administrator requested disbarment. Respondent argued no discipline should be imposed.
Respondent engaged in serious misconduct. On an internet blog which she published, Respondent made numerous posts, over time, in which she impugned the integrity of judges and other attorneys, falsely and without any reasonable basis for believing her statements were true. Such misconduct is quite serious, given the potential it carries to damage the public’s perception of the court system. In re Amu, 2011PR00106, M.R. 26545 (May 16, 2014).
The public naturally perceives attorneys as having particular knowledge concerning the legal system and the integrity of judges. In re Palmisano, 92 CH 109, M.R. 10116 (May 19, 1994). Consequently, public confidence in the integrity of the judicial system can be especially undermined when an attorney makes accusations of corruption. Palmisano, 92 CH 109 (Review Bd. at 8). Where an attorney publicly advances allegations of judicial corruption, the public naturally assumes the allegations are true. Amu, 2011PR00106 (Review Bd. at 10). While appropriate public confidence in the judicial system requires that judges who are dishonest be identified and removed from the bench, baseless and indiscriminate accusations of dishonesty seriously impair the functioning of the judicial system. Id. at 12.
In many cases involving multiple unfounded accusations of corruption by the judiciary, the attorney has been disbarred. In re Jafree, 93 Ill. 2d 450, 444 N.E.2d 143 (1982); In re Zurek, 99 CH 45, M.R. 18164 (Sept. 19, 2002); In re Kozel, 96 CH 50, M.R. 16530 (June 30, 2000);
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Palmisano, 92 CH 109. The Administrator relies on these cases to support his request that Respondent be disbarred.
We have considered these cases. In most of these cases, the attorneys made unfounded allegations of corruption in multiple unrelated matters. Jafree, 93 Ill. 2d at 461-62; Kozel, 96 CH 50; Palmisano, 92 CH 109. Such a pattern is not always required. Zurek, 99 CH 45 (Review Bd. at 15). Zurek was disbarred even though his misconduct did not extend to multiple legal matters. However, his particularly disrespectful and disruptive behavior during the disciplinary proceedings, which included walking out of the hearing, suggested his underlying misconduct was not isolated. Id. at 14-16. The seriousness of Zurek’s misconduct was exacerbated because Zurek made his allegations of corruption knowing they were false and in retaliation for adverse rulings by the judge. Id. at 13. No mitigating factors were present. Id. at 14.
Our research has disclosed some cases in which significantly less severe sanctions were imposed. In In re Harrison, 06 CH 36, M.R. 22839 (Mar. 16, 2009), the attorney was censured; his misconduct was an isolated incident, far more confined than that here. In In re Hoffman, 08 SH 65, M.R. 24030 (Sept. 22, 2010), the attorney was suspended for six months and until further order of the Court. Although Hoffman’s inappropriate statements affected more than one matter, they were not made in the very public manner in which Respondent made her statements. Those cases are distinguishable, but illustrate the range of available discipline.
In other cases, attorneys have been suspended for a longer period, with the suspension continuing until further order of the Court. The Administrator has cited two such cases; in each, the attorney was suspended for two years and until further order of the Court. In re Sarelas, 50 Ill. 2d 87, 277 N.E.2d 313 (1971); In re Greanias, 01 SH 117, M.R. 19079 (Jan. 20, 2004).
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Sarelas filed multiple lawsuits over a nine-year period against individuals who had been involved in prior disputes in which Sarelas was also involved, as a lawyer or as a litigant. In the lawsuits, Sarelas made false and baseless allegations impugning the integrity of the defendants, who included judges and other lawyers. Sarelas also behaved disruptively in the disciplinary proceedings and sued the persons involved in the proceeding. While observing his conduct warranted disbarment, the Court declined to disbar Sarelas. The Court noted, in mitigation, Sarelas had no other misconduct, in a long career. Sarelas, 50 Ill. 2d at 98-99.
Greanias had represented five individuals in their respective claims before the Industrial Commission. After each matter was resolved, Greanias filed a lawsuit in which she alleged, without any reasonable basis for doing so, the Commissioners and, in some cases, opposing counsel had engaged in fraud, racketeering, conspiracy and/or bribery. In recommending a suspension for two years and until further order of the Court, the Hearing Board considered the seriousness of Greanias’s misconduct, the fact that it did not arise from an isolated incident and her lack of remorse or recognition of her misconduct. The Hearing Board also considered factors in mitigation. Greanias actually believed the defendants had wronged her clients and believed, albeit unreasonably, there was a factual basis for the complaints. She did not act with a self-serving motive. Greanias had practiced law for over 20 years with no prior discipline. She cooperated during the disciplinary proceedings. Greanias had also done pro bono work and engaged in civic activities.
Since Respondent’s hearing concluded, the Court issued its final orders in two cases. These cases are relevant in our consideration of the sanction to recommend in this case.
In Amu, 2011PR00106, the attorney was suspended for three years and until further order of the Court. In four separate matters in which he received unfavorable rulings, Amu falsely
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alleged the cases had been fixed and the judges were biased and corrupt. Although Amu testified he believed his statements were true, he did not have any reasonable basis for that belief. While most of the accusations were made in pleadings filed in the cases involved, Amu disseminated some of his accusations further, thereby creating a genuine risk of harm to the reputation of the judges involved. In particular, Amu posted a document on his law firm website in which he accused one of the judges of bias and corruption. Amu did not recognize the wrongfulness of his misconduct and appeared to have no concern for the consequences of his statements. The manner in which Amu behaved during the disciplinary proceedings, which included failures to comply with orders, was considered in aggravation. In mitigation, Amu presented favorable character testimony and had no prior discipline. The Hearing Board declined to recommend disbarment. In doing so, the Hearing Board observed disbarment would not advance the goals of the disciplinary system any better than a suspension until further order of the Court. Amu, 2011PR00106 (Hearing Bd. at 36).
In In re Ditkowsky, 2012PR00014, M.R. 26516 (Mar. 14, 2014), the attorney was suspended for four years and until further order of the Court. Like Respondent, Ditkowsky baselessly accused the judges and attorneys involved in the Sykes case of corruption. There are, however, differences between the two cases. Ditkowsky engaged in additional misconduct, making false representations to a third party about his status in the litigation. Some of his statements were more aggravated; Ditkowsky’s accusations included allegations the judges and GALs were involved in a conspiracy to shorten Mary’s life. Unlike this case, where Respondent posted her comments publicly on a blog, Ditkowsky’s accusations were made in e-mail communications, albeit hundreds of them, directed to specific individuals. There are also similarities and differences in the aggravating and mitigating factors. Like Respondent,
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Ditkowsky did not display any remorse or understanding of his misconduct. Both attorneys demonstrated a lack of respect for the disciplinary process and did not appear to understand the purpose of the proceedings. Unlike Respondent, Ditkowsky did not present any mitigating evidence.
The sanctions imposed in the foregoing cases provide a framework for our consideration of the sanction to recommend here. The sanction we recommend is based on the specific evidence in this case, considered in light of this precedent. In particular, we are mindful that the Court upheld the recommendation of a suspension of four years and until further order for Ditkowsky, whose case involved similar, though not identical, misconduct and factors in aggravation. The factors distinguishing the two cases, in our view, balance out such that the sanction we recommend for Respondent is within an appropriate range.
We recommend Respondent be suspended for three years and until further order of the Court. Respondent’s proven misconduct clearly was serious, even if, in isolation, some individual statements might be viewed more benignly than others. Respondent made numerous improper statements and did so over time. Her misconduct could warrant disbarment, particularly when considered with the aggravating factors present. The aggravating factors themselves are significant. However, given all the circumstances, including mitigating factors as discussed below, we have decided to recommend a sanction less severe than disbarment.
Disbarment represents the “utter destruction” of an attorney’s professional life. In re Timpone, 208 Ill. 2d 371, 384, 804 N.E.2d 560 (2004). A suspension until further order of the Court is the most severe form of discipline short of disbarment. Timpone, 208 Ill. 2d at 386. This sanction protects the public and the integrity of the profession in much the same manner as disbarment; specifically, Respondent will not be able to resume practicing law until she
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establishes that she is fit to do so. Id. at 388-89. That is particularly important to us in this case, because the circumstances as a whole leave us with very serious doubt whether or not Respondent is willing or able to conform her future conduct to proper legal standards. We also specifically intend to recommend a sanction which is sufficiently severe to impress upon Respondent the need to change her conduct. In the opinion of the Panel, the disciplinary proceedings themselves did not make such an impression on Respondent.
We have considered the Administrator’s arguments as to factors the Administrator regards as aggravating Respondent’s misconduct. We itemized some of those factors above, in aggravation, e.g., the changes to Respondent’s blog and her effort to charge for her time on it, even though we have not addressed them in detail here. We have also considered the arguments of Respondent’s counsel. These are the conclusions we have reached, and which form the basis for the discipline we recommend.
We are mindful of Respondent’s due process right to notice of the misconduct with which she is charged. In re Karavidas, 2013 IL 115767, par. 103. However, under certain circumstances, matters not specifically charged in the Complaint can be considered in aggravation. In re Storment, 203 Ill. 2d 378, 400, 786 N.E.2d 963 (2002). Typically, this depends on the extent to which the uncharged conduct is similar to the charged misconduct and proved by evidence of record. Storment, 203 Ill. 2d at 400. In this case, it is quite fair to consider the scope and breadth of the blog in aggravation. Farenga characterized the blog as a diatribe; this is a very apt description. We consider Respondent’s comments on the blog as a whole, in showing the extent and relentlessness of her unfounded accusations of corruption by individual judges and lawyers.
Respondent’s misconduct caused significant harm. The harm resulting from an attorney’s misconduct is legitimately considered in aggravation. In re Nosal, 2011PR00118,
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M.R. 26238 (Nov. 20, 2013). The persons Respondent unjustly maligned testified to ramifications they experienced. The fact that Respondent made her baseless allegations widely available, by posting them on a public blog, created a genuine risk of harm to the reputations of the individuals involved. Amu, 2011PR00106 (Hearing Bd. at 33). We also are cognizant of the damage to the public’s perception of the court system which results when attorneys make false and unfounded accusations of corruption within the system. See Palmisano, 92 CH 109 (Hearing Bd. at 22). In this case, there was also harm, as described by the Administrator’s witnesses, in that the probate proceedings became sidetracked, while the parties addressed frivolous issues raised on Respondent’s blog. According to the testimony, this contributed to inordinate delays in the probate proceedings and those delays harmed Mary, by delaying the resolution of issues pertaining to her well-being, such as the proper distribution of the Lumberman’s proceeds.
Respondent does not understand the nature and seriousness of her misconduct. This is an aggravating factor and, in this case, supports our recommendation that the suspension continue until further order of the Court. See Amu, 2011PR00106 (Hearing Bd. at 31-32). In reaching this conclusion, we considered the record as a whole, including the blog posts on which the charges of misconduct are based, Respondent’s lack of remorse, Respondent’s testimony and statements during the hearing, as well as her conduct in the prehearing stage of these proceedings. The blog posts Respondent made around the time of the hearing reinforce our conclusion that Respondent does not comprehend the nature and seriousness of her misconduct. In these proceedings, Respondent faces the risk of substantial discipline, based on allegations that she falsely accused others of corruption without having any legitimate basis for doing so. Yet, in recent blog posts, Respondent continues to accuse others of serious wrongdoing, without having a clue whether her allegations have any basis in reality. The fact that Respondent would
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engage in such behavior, in the midst of this hearing, confirms our view she does not have sufficient insight into her misconduct and our concern over her future ability to conform her conduct to proper professional norms.
Further, Respondent had demonstrated she does not understand certain basic elements of practicing law. For example, Respondent suggested she was not accusing others of criminal conduct, but only civil torts because, in her own practice, Respondent handled civil, rather than criminal, cases. Respondent’s lack of understanding of how to practice law is also apparent from her conduct in the disciplinary proceedings.
Respondent’s conduct in these proceedings is clear from the prehearing record. Among other things, Respondent repeatedly failed to follow the Chair’s orders, failed to comply with the rules of the tribunal, and sought to have the Chair and opposing counsel communicate with her in the manner in which she wished, rather than in a manner consistent with the rules of the tribunal. Respondent raised various issues which have nothing to do with these proceedings, such as asserting that copyright protections precluded use of statements from the blog in connection with these proceedings. The manner in which an attorney conducts herself during disciplinary proceedings is legitimately considered in determining the sanction. In re Cook, 2010PR00106, M.R. 26581 (May 16, 2014). Respondent’s conduct in these proceedings represented a significant aggravating factor.
Respondent has displayed a tendency to inappropriately personalize matters. This tendency was apparent in conduct by Respondent which included filing multiple lawsuits, which had been dismissed, against the attorneys in the Sykes matter. The presence of such a tendency reinforces our concern over Respondent’s ability to conform her future conduct to professional standards. See Amu, 2011PR00106 (Hearing Bd. at 31-32).
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At the same time, there are mitigating factors. Based on those mitigating factors, we decline to recommend the ultimate penalty of disbarment.
Respondent presented favorable character testimony. Her character witnesses described Respondent as a person who was generous with her time, made herself available to persons who needed help and did so pro bono.
Respondent was licensed to practice law in 1986, nearly thirty years ago. She has no prior discipline.
While Respondent acted with reckless disregard for the truth of her accusations, based on our impressions of Respondent, we do not believe she was acting out of a deliberate purpose of harming the judges and attorneys involved. Respondent genuinely, though unreasonably, believed something was wrong with the proceedings in the Sykes case. Respondent knew Mary and Gloria before the guardianship. While Respondent used decidedly misguided means, we believe she was acting out of a sincere desire to help Mary. We were also convinced Respondent truly believes there are abuses in the probate system and the system needs to be changed, to protect persons who are the subject of adult guardianship proceedings. From our perspective, it appears Respondent has genuine concern for senior citizens and perceives the senior population as vulnerable, especially to financial exploitation. This concern, as a general matter, is a legitimate one, even though Respondent had no reasonable basis for believing the judges or attorneys in Mary’s case were corrupt.
We do not believe Respondent acted with a self-serving motive. The evidence did not support a theory that Respondent was reaping a significant financial benefit from her activities including operation of the blog.
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We recommend Respondent’s suspension continue until further order of the Court. This sanction protects the public, by requiring Respondent to go through a reinstatement proceeding in which she will be required to prove her fitness to resume practicing law. Timpone, 208 Ill. 2d at 388-89. The circumstances of this case, as outlined above and particularly Respondent’s lack of understanding of the ramifications of her conduct and of the importance of following proper legal procedures, leave us with serious doubt as to Respondent’s ability to conform her future conduct to professional standards. These factors warrant continuing Respondent’s suspension until further order of the Court. See Amu, 2011PR00106 (Hearing Bd. at 37-38).
For the reasons stated above, we recommend Respondent be suspended for three years and until further order of the Court.
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Respectfully Submitted,
Sang-yul Lee
Ziad Alnaqib
Eddie Sanders, Jr. |
CERTIFICATION
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on November 21, 2014.
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Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois |
______________________
1 Our designation of specific posts refers to the portion of the posted language which is attributable to Respondent and charged in the Complaint, not the entire content of the post.
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2 Evidence was presented showing Respondent made certain changes in her blog posts. That evidence does not change our conclusion that the blog contained the language with which Respondent is charged.
3 Schmiedel’s testimony suggested the GALs had not been paid anything at all, but for possible costs reimbursement to Stern. (Tr. 620). We are aware of this possible discrepancy, but it does not change our determination in the case.
4 Gloria’s testimony was interrupted, due to the need to address issues relating to discovery and privilege. Respondent was given an opportunity to determine what items Gloria intended to assert were privileged, produce additional unprivileged documents and recall Gloria as a witness. (Tr. 527-59). This topic was also addressed in a February 4, 2014 status conference. Gloria did not return on the subsequent scheduled hearing dates to complete her testimony. For the reasons stated on the record, the hearing was not continued further. (Tr. 1138-39, 1154-66).
5 Given the allegations of the Complaint, for purposes of our findings of misconduct, we focus primarily on Respondent’s accusations as they relate to the judges and GALs. Respondent also accused others, including Schmiedel, of wrongdoing. Based on the evidence, those accusations were equally false and unfounded.
6 The Black post included comments about Circuit Court Clerk Dorothy Brown and the lack of computerization in the Cook County Court system. We do not base our decision on those comments, which might, arguably, be construed as a matter of protected opinion, rather than an attack on Brown’s integrity or qualifications. See In re Hoffman, 08 SH 65, M.R. 24030 (Sept. 22, 2010) (Review Bd. at 18) (noting constitutional protection for expressions of opinion).
7 Respondent testified she reported wrongdoing to the FBI. It was not clear from her testimony that she did so regarding the Sykes matter or that she informed others of these reports, in an effort to obtain an advantage in a civil case. (Tr. 1706-1719). |
MaryGSykes.com 