Earlier this month, you may have read about the Illinois Attorney Registration and Disciplinary Commission’s recommended three-year suspension of attorney Felipe Nery Gomez for sending “threatening and harassing emails” to seven attorneys during pending litigation.
Based on the contents of the emails (which I’ll get into in a bit) it seems like it would be an open and shut case of incivility in communications. However, an ethics attorney interviewed for the piece says that “the line between zealous advocacy and ‘scorched-earth’ litigation tactics is often much blurrier.”
I initially planned this blog post to discuss the tension lawyers might feel between a duty of zealous advocacy and a duty to conduct oneself civilly at all times, and even drafted a few paragraphs.
However, after I read the opinion of the Illinois ARDC Hearing Board and researched other disciplinary cases in the state, I realized that there is a pattern in uncivil communication in Illinois and it isn’t a pretext of advocacy: it’s straight-up bullying, and it often targets females.
How is “zealous advocacy” defined?
Lawyers often assert that the line between incivility and zealous advocacy is fuzzy. But where does the duty of zealous advocacy really come from?
The word “zealous” doesn’t appear in the Illinois Rules of Professional Conduct. It does, however, show up twice in the Preamble and once in a comment.
Paragraph 2 of the Preamble states that as an advocate, “a lawyer zealously asserts the client’s position” but goes on to qualify that by saying “under the rules of our adversary system.”
The Preamble also states that lawyers may have to resolve conflicts between duty to clients, the legal system, and the lawyer’s interest. In resolving such conflicts, they are told to exercise “sensitive professional and moral judgment” guided by basic principles “include[ing] the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” (Preamble, Cmt. 9)
[Emphasis added in both of these passages.]
Comment 1 to Rule 1.3, which requires a lawyer to act with diligence, explains that a “lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”
However, the comment goes on to explain the limits of that zeal. “A lawyer is not bound, however, to press for every advantage that might be realized for a client…The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” (Rule 1.3, Cmt. 1)
Given that the definition of zeal is “a strong feeling of interest and enthusiasm” in pursuit of a cause or an objective, there really is no friction between zeal and civility.
As Kevin Dubose and Jonathan E. Smaby wrote in the Texas Bar Journal, the word “zealous” in the Texas Disciplinary Rules of Professional Conduct (identical in relevant part to Illinois’ Rules of Professional Conduct) envisions zeal as “a passionate and enthusiastic manner designed to achieve a favorable outcome for the client. Thus, zealousness should not be judged by its stridency but by the result.”
Advocacy or bullying in the Gomez case?
In the case that kicked off this post, the ARDC Hearing Board found that Gomez violated the Illinois Rules of Professional Conduct in sending threatening and harassing emails to seven other attorneys in three different litigation matters.
Gomez’s emails referred to opposing counsel as “scum,” “liar,” “idiot,” “active criminal,” and “targets” and threatened them with lawsuits and sanctions.
The Hearing Board found that Gomez violated Illinois Rules of Professional Conduct Rules 4.4(a) and 8.4(d).
Rule 4.4(a) states that in representing a client, “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”
And Rule 8.4(d) states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”
Gomez attempted to defend his statements as protected opinions under the First Amendment and substantially related to the litigation. The ARDC Hearing Board rejected these arguments, and it recommended that Gomez be suspended from the practice of law for three years and until further order of the court.
Two of the cases in which Gomez sent abusive emails were in federal court. The Executive Committee of the U.S. District Court for the Northern District of Illinois disbarred Gomez from practicing law in that court until further order.
Citing the federal court disbarment and a threat of irreparable injury to the public, the administrator of the ARDC petitioned the Illinois Supreme Court for an interim suspension during the pendency of the disciplinary case.
On April 8, 2021, the Illinois Supreme Court suspended Gomez immediately and until further order of the court.
Under all these circumstances, it is expected that the Court will approve the ARDC’s recommendation of a three-year suspension until further order of court. (A suspension until further order of the court requires the suspended lawyer to petition for reinstatement after the fixed period of suspension ends. Reinstatement is only allowed by the Illinois Supreme Court following a hearing before the ARDC Hearing Board in which the attorney bears the burden of proof.)
A pattern of bullying female attorneys in Illinois
While the Gomez case involved emails directed to male attorneys, during my research into Illinois disciplinary cases, I found an alarming pattern of bullying of female attorneys by their male counterparts. It can be assumed that this bullying, which is far from zealous advocacy, has been used to intimidate and belittle female attorneys.
I’ve included some instances below where male Illinois lawyers who made disparaging comments against female lawyers were disciplined for violating Rule 4.4(a):
- In In re Craddock, the ARDC Hearing Board found that a male attorney used vulgar and disparaging gender-based language on three separate occasions in addressing female litigation counsel in federal and state court litigation matters. This included twice in the hallway of the federal courthouse when he intentionally addressed counsel by altering the first syllable of her name “Courtney” to a pejorative term. After counsel filed a motion for sanctions against him, he sent a disparaging email that altered both her first and last names to include the words “c—” and “b—-” and threatened reprisals. On April 3, 2020, the Illinois Supreme Court suspended him for three months. (He was also suspended for 12 months by the Executive Committee of the U.S. District Court for the Northern District of Illinois, which found he violated Rule of Professional Conduct 8.4(g) by “engag[ing] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of…sex” by twice using gender-based, vulgar terms to insult his opposing counsel.)
- In In re Pondenis, the Hearing Board found an attorney made statements in text messages calling the girlfriend of a former client a “deadbeat” who had no intention of paying bills and had an order of protection taken out against her children. In addition, in connection with a pending eviction notice against him, the attorney sent rude text messages to his landlord and his landlord’s wife, including calling the wife a “fat b—-.” These pejorative statements were found to have no legitimate purpose other than to embarrass in violation of Rule 4.4(a). In an order issued on September 23, 2021, the Illinois Supreme Court suspended the attorney from the practice of law for one year and until further order of court.
- In In re Cohn, a male attorney directed vulgar language to female opposing counsel in a deposition. In the deposition, when Cohn directed his witness not to answer a question, opposing counsel stated, “Certify the question.” Cohn responded, “Certify your own stupidity, then.” When Cohn instructed his witness not to answer another question, and opposing counsel certified that question, Cohn stated, “I’m going to get sanctions against your firm like you wouldn’t believe, b—-.” In finding misconduct, the Hearing Board stated, “there is no question that directing vulgar gender-based slurs toward another person in the course of representation violates rule 4.4(a).” The Hearing Board found that the comments were made to demean and harass the attorney and that she testified credibly that she felt embarrassed and verbally abused. (Counsel filed a Motion for Sanctions against Cohn and the Hearing Board found that Cohn made disparaging remarks about the judge being in “robe rage” that violated Rules 8.2(a) and 8.4(d)). The Illinois Supreme Court suspended Cohn for six months and until he completes the ARDC professionalism course.
- In In re Novoselsky, an attorney was suspended for six months in 2015 for violating Rule 4.4(a) by repeatedly calling his female opposing counsel insulting, vulgar, and gender-based slurs. The Hearing Board found he called female opposing counsel names including “f—— b—-,” “a——,” “pervert,” “slut,” and “child molester.” He called male opposing counsel in another matter a “cokehead” and “an idiot.” He also called a deputy sheriff a “dumbbell” and repeatedly threatened to “have her job.” (Another disciplinary action was filed against Novoselsky; the Illinois Supreme Court disbarred him in September 2020.)
Far from any sort of advocacy, zealous or otherwise, the above cases show a pattern of behavior that amounts to bullying. As in most cases of bullying, the targets are perceived to be weak.
Thank you to all of the women and their supporters who have exhibited courage in standing up and bringing these behaviors to the attention of the ARDC. Thank you to the ARDC for prosecuting these attorneys and to the Illinois Supreme Court for disciplining them for their offensive behavior.
As a female attorney in Illinois, it’s heartening to know that defending bullying as a form of advocacy doesn’t stand in our court system.
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The post Bullying Does Not Pass for Advocacy in Illinois appeared first on 2Civility.