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Attorney Divorce Illinois Lawyer

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Attorney Divorce Illinois Lawyer Powered By Docstoc
					 Ethical Considerations in Family
           Law Cases
      Denise Church, ARDC
                 May 7, 2010




       I.      Disciplinary Statistics and the Grievance Process
       Illinois has the fourth largest attorney population in the United States (83,881). Only
California (165,474), New York (153,918), and Florida (87,010), have larger lawyer numbers.

               A.     Types and Numbers of Grievances Filed against Lawyers
        The Attorney Registration and Disciplinary Commission (ARDC) is the lawyer
regulatory authority in Illinois. During 2008, the ARDC docketed 5,897 investigations, involving
charges against 4,171 different attorneys (about 5% of all registered lawyers). As a general rule,
a little more than five percent of disciplinary investigations result in the filing of formal
disciplinary charges annually.

        Classification of Grievances Docketed in 2008 by Area of Law

                         Area of Law                                                  Number*

                         Criminal/Quasi-Criminal............................... 1,461
                         Domestic Relations ......................................... 898
                         Tort (Personal Injury/Property Damage) .......... 608
                         Real Estate/Landlord-Tenant............................ 477
                         Probate ............................................................. 333
                         Labor Relations/Workers‟ Comp ..................... 255
                         Contract ............................................................ 229
                         Bankruptcy ....................................................... 197
                         Debt Collection ................................................ 160
                         Civil Rights ...................................................... 129
                         Immigration ...................................................... 121
                         Corporate Matters ............................................ 111
                         Criminal Conduct/Conviction ............................ 80
                         Local Government Problems .............................. 59
                         Personal misconduct........................................... 22
                         Tax ..................................................................... 18
                         Patent and Trademark ........................................ 18
                         Adoption ............................................................ 13
                         Social Security ................................................... 10
                         Mental Health ....................................................... 4

                         *Totals exceed the number of charges docketed because in many
                         charges more than one area of law is involved.
        There were a total of 6,127 investigations concluded in 2008, either after an initial
review or where formal charges were filed, about 25% are closed after an initial review, and
about 96% are closed within 60 days.

                     Classification of Charges Docketed in 2008 by Violation Alleged

 Type of Misconduct                                                                       Number*       Type of Misconduct                                                               Number*
 Neglect .................................................................................... 2,566     Practicing in a jurisdiction where not authorized ......................... 89
 Failing to communicate with client, including failing to                                               Prosecutorial misconduct ............................................................ 65
   communicate the basis of a fee ........................................... 1,280
                                                                                                        Improper communications with a party known to be
 Excessive or improper fees, including failing to refund                                                  represented by counsel or with unrepresented party ................ 61
   unearned fees ......................................................................... 824
                                                                                                        Failing to preserve client confidences or secrets .......................... 47
 Fraudulent or deceptive activity, including lying to clients,
    knowing use of false evidence or making a                                                           Failing to supervise subordinates ................................................. 39
    misrepresentation to a tribunal or non-client ......................... 703                         Threatening criminal prosecution or disciplinary
 Improper trial conduct, including using means to                                                         proceedings to gain advantage in a civil matter ....................... 37
   embarrass, delay or burden another or suppressing                                                    Practicing after failing to register ................................................. 26
   evidence where there is a duty to reveal................................. 469
                                                                                                        Aiding a nonlawyer in the unauthorized practice of law .............. 20
 Improper management of client or third party funds,
   including commingling, conversion, failing to                                                        Incapacity due to chemical addiction or mental
   promptly pay litigation costs or client creditors or                                                    condition.................................................................................. 12
   issuing NSF checks ............................................................... 358
                                                                                                        Improper division of legal fees/partnership with
 Conduct prejudicial to the administration of justice,                                                    nonlawyer ................................................................................ 11
   including conduct which is the subject of a contempt
   finding or court sanction ....................................................... 357                Bad faith avoidance of a student loan .......................................... 10

 Filing frivolous or non-meritorious claims or pleadings ............ 269                               Inducing/assisting another to violate the Rules ............................ 10

 Conflict of Interest: .................................................................... 204         Failing to report misconduct of another lawyer or judge ................ 7

     Rule 1.7: Concurrent conflicts ..................................................... 144           Sexual harassment/abuse or violation of law
     Rule 1.8(a) Improper business transaction with client.................... 15                         prohibiting discrimination ......................................................... 6
     Rule 1.8(b) Improper acquisition of publication/media rights .......... 1
     Rule 1.8(c) Improper preparation of instrument benefiting lawyer .. 2                              Improper extrajudicial statement.................................................... 5
     Rule 1.8(d) Financial assistance to client ......................................... 3
     Rule 1.8(f) Improper agreement prospectively
                                                                                                        Failing to comply with Rule 764 .................................................... 5
           limiting lawyer‟s liability ....................................................... 2
                                                                                                        False statements in a bar admission or disciplinary matter............. 4
     Rule 1.8(h): Improper agreement to limit/avoid
       disciplinary action ........................................................................ 1   Improper ex parte communication with judge ............................... 4
     Rule 1.9: Successive conflicts ....................................................... 28
     Rule 1.10 Imputed disqualification .................................................. 4            Improper employment where lawyer may become a witness ......... 4
     Rule 1.11 Former government lawyer ............................................. 2
     Rule 1.12 Former judge or arbitrator ............................................... 1             Failing to maintain an appropriate attorney-client relationship
     Rule 1.13 Failure to protect interest of organizational client ............ 1                        with disabled client .................................................................... 3
 Failing to properly withdraw from representation,                                                      Abuse of public office to obtain advantage for client ..................... 3
   including failing to return client files or documents .............. 178
                                                                                                        Assisting a judge in conduct that violates the judicial code ........... 3
 Criminal activity, including criminal convictions,
   counseling illegal conduct or public corruption ..................... 125                            False statements about a judge, jud. candidate or public official.... 3
 Failing to provide competent representation .............................. 119                         Investigation of conditional admission under Rule 701(a) ............. 2
 Not abiding by a client‟s decision concerning the                                                      Failing to pay child support ........................................................... 2
   representation or taking unauthorized action on the
   client‟s behalf ........................................................................ 107         No misconduct alleged ............................................................... 339

 Improper commercial speech, including inappropriate                                                    *Totals exceed the number of charges docketed in 2008 because in
   written or oral solicitation ....................................................... 98                  many charges more than one type of misconduct is alleged.




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Types of Misconduct Alleged in Complaints Filed Before Hearing Board in 2008

                                                                  Number                % of                                                                        Number                   % of
                                                                    of                 Cases                                                                          of                     Cases
Type of Misconduct                                                Cases*               Filed*      Type of Misconduct                                               Cases*                   Filed*

 Failure to communicate with client ............... 43 ............35%                              Improper withdrawal from employment
 Fraudulent or deceptive activity .................... 43 ............35%                              without court approval or avoiding
 Neglect/lack of diligence .............................. 41 ............33%                           prejudice to client ...................................... 13 ............. 10%
   In many cases where neglect was                                                                  Not abiding by client‟s decision or taking
   charged, the neglect was accompanied by                                                              unauthorized action on client‟s behalf ..... 13 ............. 10%
   one or both of the following:                                                                    Failure to provide competent representation . 13 ............. 10%
        Misrepresentation to client .......................... 26                                   Falsifying evidence or making false
        Failure to return unearned fees ...................... 7
                                                                                                     statements to tribunal................................... 11 ............... 9%
 Criminal conduct/conviction of lawyer ......... 29 ............23%
                                                                                                    Assisting client in criminal/fraudulent
 Conflict of interest ........................................ 27 ............22%
        Rule 1.7: concurrent conflicts ...................... 14
                                                                                                        conduct ...................................................... 5 ............... 8%
        Rule 1.8(a): improper business                                                              Unauthorized practice after failure to register . 5 ............... 4%
         transaction with client .................................5                                 Misrepresentation to third persons .................. 3 ............... 4%
        Rule 1.8(c): instrument .................................2                                  Failure to supervise employees ....................... 3 ............... 2%
        Rule 1.8(d): improper financial
         assistance to client .......................................2                              Breach of client confidences ........................... 3 ............... 2%
        Rule 1.9: successive conflicts ........................ 3                                   Inducing/assisting another to violate rules ...... 3 ............... 2%
        Rule 1.10: imputed disqualification ...............1                                        False statement about judge ............................ 3 ............... 2%
 Improper handling of trust funds .................. 24 ............19%                             Unauthorized practice after suspension ........... 2 ............... 2%
 Pursuing/filing frivolous or                                                                       Aiding in the unauthorized practice of law ..... 2 ............... 2%
  non-meritorious claims or pleadings ........... 21 ............17%                                Failure to maintain records under Rule 769 .... 2 ............... 2%
 False statement or failure to respond                                                              Improper commercial speech, including
  in bar admission or disciplinary matter ....... 16 ............13%                                    improper direct solicitation ....................... 1 ............... 1%
 Excessive or authorized fees ......................... 16 ............13%                          Practicing in a jurisdiction without authority .. 1 ............... 1%
                                                                                                    Improper communication with
                                                                                                        a represented person .................................. 1 ............... 1%


* Totals exceed 124 disciplinary cases and 100% because most complaints allege more than one type of misconduct.




      Area of Law Involved in Complaints Filed Before Hearing Board in 2008

                                                               Number                  % of                                                                           Number                % of
                                                                 of                    Cases                                                                            of                  Cases
  Area of Law                                                  Cases*                  Filed*             Area of Law                                                 Cases*                Filed*

  Real Estate...................................................29..................... 23%               Tax ................................................................ 3 .................. 2%
  Tort ..............................................................19..................... 15%          Corporate Matters.......................................... 2 .................. 2%
  Domestic Relations......................................17..................... 14%                     Local Government ......................................... 1 .................. 1%
  Probate ........................................................14..................... 11%             Civil Rights ................................................... 1 .................. 1%
  Contract .......................................................14..................... 11%             Immigration................................................... 1 .................. 1%
  Criminal ........................................................7....................... 6%            Patent/Trademark .......................................... 1 .................. 1%
  Bankruptcy ....................................................7....................... 6%
  Workers‟ Comp/Labor Relations ...................7....................... 6%

  *Totals exceed 124 disciplinary complaints and 100% because many complaints allege several counts of misconduct arising in different
  areas                                                        of                                                            practice.




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                 Practice Setting for Lawyers Sanctioned 1998 – 2002




II.    Lawyer Disciplinary Orders Entered by the Illinois Supreme Court
       in 2010 by Subject Matter Grouping
                                  1.     Conflict of Interest
        In re Frank Eugene Jeffers, III, M.R. 23537, 2008 PR 00103 (Ill. Jan. 21, 2010). Mr.
Jeffers, who was licensed in 1977, was censured and was directed to attend the professionalism
seminar of the Illinois Professional Responsibility Institute. He represented both the buyer and
the seller at a house closing, without advising either party that the representation created a
conflict of interest.

       In re James Russell Fennerty, M.R. 23666, 2009 PR 00026 (Ill. March 16, 2010).
Mr. Fennerty, who was licensed in 1972, was censured. He prepared a will on behalf of a client
giving himself and his wife a substantial gift. The client later revoked the will.

                             2.        Neglect and Competency
        In re Robert Eugene Bennett, M.R. 23590, 2009 PR 00012 (Ill. March 16, 2010). Mr.
Bennett, who was licensed in 1976, was suspended for six months and until further order of the
Court. He neglected a client's immigration case and made misrepresentations to the client about
the status of the matter. He failed to appear and participate in the disciplinary proceedings.

       In re Herb N. Elesh, M.R. 23399, 2008 PR 00009 (Ill. Jan. 21, 2010). Mr. Elesh, who
was licensed in 1996, was suspended for three months and until he successfully completes a



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course offered by the Illinois Professional Responsibility Institute. He neglected a divorce case
and an immigration matter. The suspension was effective on February 11, 2010.

        In re Michael D. Ferreira, M.R. 23677, 2009 PR 00051 (Ill. March 16, 2010).
Mr. Ferreira, who was licensed in 1991, was suspended for six months and until further order of
the Court. He failed to communicate with two clients about their breach of contract claims and
did not cooperate with the disciplinary investigation. He failed to appear and participate in the
disciplinary proceedings.

        In re Donald Wayne Garlinger, M.R. 23466, 2009 PR 00029 (Ill. Jan. 21, 2010). Mr.
Garlinger, who was licensed in 1962, was suspended for six months. He neglected litigation
involving a contract dispute and made misrepresentations to the client about the status of the
matter for over twenty-seven years. The suspension was effective on February 11, 2010.

        In re Gregory James German, M.R. 23520, 2009 PR 00006 (Ill. March 16, 2010). Mr.
German, who was licensed in 1997, was suspended for two years and until further order of the
Court and was ordered to make certain restitution to a former client. He neglected two different
client matters, misrepresented the status of one of those matters to his client, failed to carry out
his duties in two cases where he had been appointed to serve as a guardian ad litem, and did not
cooperate with the ARDC.

       In re Clara L. Larry, M.R. 23380, 2007 PR 00019 (Ill. Jan. 21, 2010). Ms. Larry, who
was licensed in 1987, was suspended for sixty days and ordered to pay certain restitution. She
neglected two clients‟ employment discrimination claims and failed to refund unearned fees. The
suspension was effective on February 11, 2010.

        In re Rex Lindsey Reu, M.R. 23657, 2009 PR 00044 (Ill. March 16, 2010). Mr. Reu,
who was licensed in 1978, was censured and required to complete the Professionalism Seminar
of the Illinois Professional Responsibility Institute. He neglected discovery obligations in a
client‟s dissolution of marriage proceeding, resulting in the imposition of monetary sanctions
against the client, and he failed to inform the client of the entry of the sanctions.

                    3.      Criminal Charges, Conduct or Convictions
       In re Nathan Andrew Billmaier, M.R. 23587, 2009 PR 00125 (Ill. March 16, 2010). Mr.
Billmaier, who was licensed in 2006, was disbarred on consent. He was convicted of bringing
contraband into a penal institution, possessing a controlled substance with intent to deliver, and
possessing cannabis with intent to deliver. In the criminal case, he was sentenced to three years
of probation, with the first 180 days to be spent in incarceration.

        In re Ann Maureen Day, M.R. 23573, 2005 PR 00050 (Ill. Jan. 21, 2010). Ms. Day, who
was licensed in 1989, was disbarred on consent. She was convicted in state court on charges of
forgery and theft. The conviction was based on her having defrauded her former law partner by
intercepting checks due to the law partnership and using the checks' proceeds for herself, or by
drawing checks on the firm's accounts without her partner's knowledge. The total amount she
took from the firm exceeded $137,000.


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       In re Douglas W. Lohmar, Jr., M.R. 23675, 2009 PR 00086 (Ill. March 16, 2010). Mr.
Lohmar, who was licensed in 1987, was suspended for two years and until further order of the
Court, with the suspension stayed in its entirety by a two-year period of probation with
conditions. He was convicted on two occasions of driving under the influence of alcohol.

       In re Michael Edward Marsh, M.R. 23609, 2008 PR 00026 (Ill. March 16, 2010). Mr.
Marsh, who was licensed in 1980, was suspended for four years and until further order of the
Court and until he satisfies a restitution order. He was convicted in state court on five
misdemeanor counts of theft of client retainer monies.

       In re Robert Joseph Repel, M.R. 23642, 2009 PR 00096 (Ill. March 16, 2010). Mr.
Repel, who was licensed in 1977, was suspended for two years and until further order of the
Court, with the suspension stayed in its entirety by a two-year period of probation with
conditions. He was convicted of two separate instances of driving under the influence of alcohol.

        In re Allen Barry Witz, M.R. 23510, 2008 PR 00059 (Ill. Jan. 21, 2010). Mr. Witz, who
was licensed in 1966, was disbarred. He conspired to commit securities fraud and engaged in
conduct contrary to rules or regulations of the Securities and Exchange Commission. In the
criminal case, he was sentenced to five years of probation, six months of electronic home
monitoring, and was ordered to perform community service. Mr. Witz, who did not participate in
his disciplinary hearing, was suspended on an interim basis on October 14, 2008.

        In re John P. Wolgamot, M.R. 23694, 2009 PR 00035 (Ill. March 16, 2010). Mr.
Wolgamot, who was licensed in 1974, was disbarred on consent. He pled guilty to a charge of
willfully assisting a client in filing a fraudulent United States income tax return that understated
the client‟s income by $478,098. He was sentenced to term of imprisonment of one year and one
day. Mr. Wolgamot was suspended on an interim basis on August 5, 2009.

         4.     Conduct Involving Fraud, Deceit, Dishonesty, Misrepresentation
                                 or Lack of Candor
         In re Anthony A. Demasi, M.R. 23482, 2008 PR 00110 (Ill. Jan. 21, 2010). Mr. Demasi,
who was licensed in 2001, was disbarred. For several years, he operated a commodity trading
pool. At some point, he began telling potential investors that the pool was profitable when, in
fact, it had lost money and was closed. He induced at least 108 investors to give him more than
$16,000,000 for the purpose of trading financial futures. Instead of using the funds he received
for legitimate investments, he used the proceeds for personal purposes.

        In re Philip Andrew Igoe, M.R. 23446, 2008 PR 00068 (Ill. Jan. 21, 2010). Mr. Igoe,
who was licensed in 1977, was suspended for six months. He failed to diligently pursue a
proceeding for disbursement of surplus funds arising from a foreclosure sale. He also was not
candid to a judge and to his client regarding the proceeding, and he notarized, and filed with the
court, an affidavit with a false date in connection with the matter. The suspension was effective
on February 11, 2010.



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      In re Paul John Maganzini, M.R. 23561, 2009 PR 00036 (Ill. Jan. 21, 2010). Mr.
Maganzini, who was licensed in 1973, was censured. At the request of a former client, he
improperly notarized the signature of the former client‟s wife on two Illinois Statutory Short
Forms Power of Attorney for Property and a mortgage. He was unaware at the time that the
documents were to be used by his former client to obtain loans without the wife‟s knowledge.

        In re Roger Albert Weiler, M.R. 23527, 2008 PR 00007 (Ill. Jan. 21, 2010). Mr. Weiler,
who was licensed in 1952, was suspended for one year. He purposefully failed to disclose assets
in his own personal bankruptcy petitions. The suspension was effective on February 11, 2010.

        In re Fadi Zanayed, M.R. 23509, 2008 PR 00124 (Ill. Jan. 21, 2010). Mr. Zanayed, who
was licensed in 1985, was suspended for two years. While representing a client in a dissolution
of marriage matter, he forged and notarized the signatures of a third party on pleadings, made
false statements to the court and to the ARDC, and attempted to obstruct an ARDC investigation
by providing funds to a complaining witness. The suspension was effective on February 11,
2010.

                                          5.      Fees
       In re Michael Scott Crosby, M.R. 23610, 2008 PR 00080 (Ill. March 16, 2010). Mr.
Crosby, who was licensed in Illinois in 1980, was censured and required to complete the
Professionalism Seminar of the Illinois Professional Responsibility Institute. He failed to
promptly refund the unearned portion of fee advances he had received from several clients who
had discharged him.

        In re Jeffery Luckett, M.R. 23558, 2008 PR 00043 (Ill. Jan. 21, 2010). Mr. Luckett, who
was licensed in 1994, was suspended for two years with the suspension stayed after ninety days
by a 24-month period of probation subject to conditions. While participating in the Juvenile
Court Bar Attorney Program representing indigent respondents in juvenile justice and child
protection matters in Cook County, he submitted inaccurate fee petitions and affidavits to courts
in connection with that program. The suspension was effective on February 11, 2010.

        6.      Commingling, Conversion, Trust Account and Property Issues
        In re Jeffery William Green, M.R. 23617, 2007 PR 00109 (Ill. March 16, 2010). Mr.
Green, who was licensed in 2003, was disbarred. He misappropriated client funds, failed to
diligently represent a client, made false statements to clients, and made misrepresentations to the
ARDC. He was suspended on an interim basis on September 15, 2009.

       In re Henry Moss Meersman, M.R. 23643, 2009 PR 00017 (Ill. March 16, 2010). Mr.
Meersman, who was licensed in 1951, was disbarred. While acting as the trustee of a
testamentary trust that a decedent had established to benefit the decedent‟s minor grandson, Mr.
Meersman converted all of the trust assets, $30,656.73, to his own purposes.

      In re Wendell Benjamin Sims, M.R. 23434, 2007 PR 00004 (Ill. Jan. 21, 2010). Mr.
Sims, who was licensed in 1988, was suspended for six months. He mismanaged funds of a


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decedent‟s estate. Further, he was not candid with a client about the status of those funds. The
suspension was effective on February 11, 2010.

        In re Harold Louis Turner, Jr., M.R. 23588, 2009 PR 00016 (Ill. March 16, 2010). Mr.
Turner, who was licensed in 1967, was suspended for three months and until he completes a
course offered by the Illinois Professional Responsibility Institute. He mishandled settlement
funds during a dispute with his former law firm partners over money that was due to each partner
after the firm‟s dissolution. The suspension is effective on April 6, 2010.

       In re Alfred S. Vano, M.R. 23410, 2004 PR 00142 (Ill. Jan. 21, 2010). Mr. Vano, who
was licensed in 1977, was suspended for one year with the last six months stayed by a six-month
period of probation with conditions. He converted monies owed to two law firms at which he
was employed. The suspension was effective on February 11, 2010.

                          7.      Reciprocal Disciplinary Action
        In re Richard Isaac Fine, M.R. 23641, 2010 PR 00002 (Ill. March 16, 2010). Mr. Fine
was licensed in Illinois in 1964 and in California in 1973. The Supreme Court of California
disbarred him for repeatedly filing frivolous lawsuits, pleadings and appeals. The Illinois
Supreme Court imposed reciprocal discipline and disbarred him.

        In re Celeste Ann Hanlin, M.R. 23575, 2009 PR 00124 (Ill. March 16, 2010). Ms.
Hanlin was licensed in Illinois in 2004 and in Idaho the following year. She was informally
admonished in Idaho for engaging in the unauthorized practice of law while she was a legal
intern employed at a public defender‟s office. At the time of the misconduct, she had not yet
taken the Idaho bar examination. The Illinois Supreme Court imposed reciprocal discipline and
reprimanded her.

         In re Jeffrey Bart Hollander, M.R. 23589, 2009 PR 00130 (Ill. March 16, 2010). Mr.
Hollander was licensed in Illinois in 1992 and in Michigan in 1993. He was disbarred in
Michigan for settling a personal injury matter without his client‟s knowledge or consent. The
Illinois Supreme Court imposed reciprocal discipline and disbarred him.

       In re Thomas Joel Manning, M.R. 23526, 2009 PR 01516 (Ill. Jan. 21, 2010). Mr.
Manning was admitted in Ohio in 1992 and in Illinois the following year. He is currently
suspended in Illinois based upon on unrelated order of reciprocal discipline. The Supreme Court
of Ohio suspended him for six months for commingling and converting client funds and for not
being candid with a client. The Illinois Supreme Court imposed reciprocal discipline and
suspended him for six months. The new suspension was effective on February 11, 2010.

        In re Linda Diane Schlanger, M.R. 23598, 2009 PR 00135 (Ill. March 16, 2010). Ms.
Schlanger was licensed in Tennessee in 1972 and in Illinois in 1974. She was suspended for five
years in Tennessee after she pled guilty in federal court to conspiracy to defraud mortgage loan
companies and financial institutions in several real estate transactions. The Illinois Supreme
Court imposed reciprocal discipline and suspended her for five years. The suspension is effective
on April 6, 2010.


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        In re George V. Warren, M.R. 23574, 2009 PR 00123 (Ill. March 16, 2010). Mr. Warren
was licensed to the practice of law in Michigan in 1968 and in Illinois in 1979. He was disbarred
in Michigan for neglecting a client‟s immigration case, refusing to refund unearned fees, and
failing to be candid with the disciplinary authority. The Illinois Supreme Court imposed
reciprocal discipline and disbarred him.

   8.      Failure to Comply with Terms of Registration, Discipline or Probation
        In re Frank Angarone, M.R. 23528, 2009 PR 00024 (Ill. Jan. 21, 2010). Mr. Angarone,
who was licensed in 1977, was censured. He engaged in the unauthorized practice of law when
he handled a number of different legal matters on behalf of clients, primarily residential real
estate closings, after his name had been removed from the Master Roll for failing to register.

         In re Dean Alan DeJong, M.R. 23536, 2009 PR 00044 (Ill. Jan. 21, 2010). Mr. DeJong,
who was licensed in 1986, was suspended for thirty days. He engaged in the unauthorized
practice of law when he handled a number of different legal matters on behalf of clients,
including multiple court appearances, after his name had been removed from the Master Roll for
failing to register. The suspension was effective on February 11, 2010.

        In re Craig Justin Katz, M.R. 23401, 2005 PR 00028 (Ill. Jan. 21, 2010). Mr. Katz, who
was licensed in 1981, was suspended for fifteen months and until he pays certain restitution.
During a previous period of suspension from the practice of law for misconduct, he accepted a
fee to represent a client. He also neglected a client matter, failed to keep his client informed of
the status of the client‟s legal case and failed to promptly return unearned fees to his client. The
suspension was effective on February 11, 2010.

                                     9.     Reinstatements
         In re Bruce Roth, M.R. 21650, 2007 PR 03002 (Ill. Jan. 21, 2010). Mr. Roth was
disbarred on in 1987 after he was convicted in federal court of bribing state court judges and
soliciting money to bribe judges. His wrongdoing was discovered during the course of the
federal corruption probe known as Operation Greylord. He filed a petition for reinstatement in
2007. The ARDC Hearing Board recommended that the petition be denied and the Review Board
affirmed the earlier decision. The Court has now denied his petition for leave to file exceptions
to the report and recommendation of the Review Board.

        In re Duncan T. Smith, M.R. 20359, 2005 PR 03008 (Ill. Jan. 21, 2010). Mr. Smith was
disbarred in 2000 after he was convicted in Missouri of possessing cocaine, operating a motor
vehicle while under the influence of alcohol, possessing drug paraphernalia with the intent to
smoke crack cocaine, and failing to operate a motor vehicle on the right side of a public road or
highway. He also misappropriated $4,000 of a client‟s earnest money deposit. In 2005, he filed a
petition for reinstatement. The ARDC Hearing Board recommended that he be reinstated with
conditions. Later, the Review Board recommended that the petition for reinstatement be denied.
The Court has now denied his petition for leave to file exceptions to the report and
recommendation of the Review Board.


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        In re Cynthia Sutherin, M.R. 21969, 2007 PR 03009 (Ill. Jan. 21, 2010). Ms. Sutherin
was suspended for one year and until further order of the Court in 2006. While working for the
Kane County Public Defender‟s Office, she induced five attorneys to resign from their public
service jobs to form a law firm. Her inducements consisted of numerous false statements
regarding her assets and the clients that would retain the firm. In 2007, she filed a petition for
reinstatement. The ARDC Hearing Board recommended that he be reinstated with conditions.
The Court has now granted a motion to approve and confirm the report and recommendation of
the Hearing Board with modified conditions.

        In re James F. Doyle, M.R. 22124, 2007 PR 03011 (Ill. Jan. 21, 2010). Mr. Doyle was
disbarred in 1997 for settling a personal injury matter for $18,000 without his client‟s knowledge
or consent, forging a client‟s signature, forging another lawyer‟s endorsement to a settlement
check, and misappropriating settlement proceeds. In 2007, he filed a petition for reinstatement.
The ARDC Hearing Board recommended that the petition be granted, with conditions. The Court
has now granted a motion to approve and confirm the report and recommendation of the Hearing
Board with modified conditions.

            10.    Engaging or Aiding in the Unauthorized Practice of Law
        In re Michael Howard Lavin, M.R. 23693, 2009 PR 00087 (Ill. March 16, 2010). Mr.
Lavin, who was licensed in 1961, was censured and ordered to complete the Professionalism
Seminar of the Illinois Professional Responsibility Institute. He aided a disbarred attorney in the
practice of law. He also failed to properly maintain client and third party funds in a client trust
account.

                     11.     Sexual Misconduct or Behavioral Issues
        In re Dennis R. Schumacher, M.R. 23634, 2007 PR 00020 (Ill. March 16, 2010). Mr.
Schumacher, who was licensed in Illinois in 1979, was suspended for one year. He engaged in
conduct involving battery when he made unsolicited and improper sexual advances toward both
a female client and the wife of a second client. He then breached a fiduciary duty to both women
clients and to a third client to whom he also made an unsolicited sexual advance over the
telephone. The suspension is effective on April 6, 2010.




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       III.   The Himmel Doctrine-IRPC Rule 8.3
       The full text of Illinois Rule 8.3 appears as follows:



               RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT

   (a) A lawyer who knows that another lawyer has committed a violation of Rule 8.4(b) or
Rule 8.4(c) shall inform the appropriate professional authority.

   (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial
conduct that raises a substantial question as to the judge‟s fitness for office shall inform the
appropriate authority.

    (c) This Rule does not require disclosure of information otherwise protected by the attorney-
client privilege or by law or information gained by a lawyer or judge while participating in an
approved lawyers‟ assistance program or an intermediary program approved by a circuit court in
which nondisciplinary complaints against judges or lawyers can be referred.

   (d) A lawyer who has been disciplined as a result of a lawyer disciplinary action brought
before any body other than the Illinois Attorney Registration and Disciplinary Commission shall
report that fact to the Commission.

                            Adopted July 1, 2009, effective January 1, 2010.



       Two subsequent decisions have reaffirmed the Supreme Court‟s Himmel ruling. In
Kenneth Skolnick et al. v. Altheimer & Gray, et al., 191 Ill.2d 214, 730 N.E.2d 4 (March 23,
2000), reh’g denied (May 30, 2000), the Illinois Supreme Court affirmed the Himmel doctrine,
holding that the reporting obligation is absolute. The Court defined the necessary degree of
knowledge that triggers a Rule 8.3 obligation, namely that a lawyer must have “more than a mere
suspicion” of another lawyer‟s misconduct, but that it need not amount to “absolute certainty.”




                                                                                              11
IV. New Rules of Professional Conduct
  Miscellaneous points

     New Rules will NOT affect the way vast majority lawyers conduct their practices.
     The proposed changes codify precedent, thus more notice to lawyers of conduct standards
      (e.g. 1.18 – Duty to Duties to Prospective Clients.)
     Contains Official Comments that provide helpful guidance to lawyers in interpreting
      Rules. There was some concern the comments would be viewed as “additional” rules we
      can charge as rule violations. The comments are NOT additional rules.
     Some rules moved. 1.2 scope of representation. It‟s now in 8.4.

                                Top Five Rules New to Illinois

     Rule 1.18: Duties to Prospective Clients. Defines prospective client, and excepts the
      client who communicates with the attorney unilaterally without any reasonable
      expectation of forming an attorney client relationship. Instructs that if you talk to a
      prospective client and do not accept the case, but you received confidential information,
      your firm can take the opposing case if screening is set up.

     Rule 2.4: Lawyer Serving as Third-Party Neutral – if you are a mediator or arbitrator, let
      the parties know you are not representing them. You could later represent one of the
      parties, with the consent of all. Your firm could represent one of the parties, if there was
      screening as set out in the referenced related rule 1.12.

     Rule 3.9: Duties in Non-Adjudicative Proceedings – lobbyists. If you are involved in
      lobbying, read the very short rule and the comments. It has already been changed once.

     Rule 4.4(b): Respect for Rights of Third Persons
         o Lawyer who receives documents relating to representation and knows that the
             document was inadvertently sent shall notify the sender .

     Rule 6.5: Nonprofit Limited Legal Services Programs. Advice clinics, “ask a lawyer”:
      conflicts are not a problem unless you KNOW it is a conflict. Get consent 1.2c

                        Five Items of Interest for Family Practitioners

                                         One - Fees
     Rule 1.5 Fees - now prohibits unreasonable expenses as well as unreasonable fees.

     Dowling- flat fee exception. The Dowling decision, referenced in the rules, stated flat or
      fixed fees had to go into the trust account. The new rule changed that ruling on that
      specific issue, and Rule 1.15(c) states fixed fees go into the attorneys operating account,
      not the trust account.



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                                            Two

   Rule 1.6 confidentiality p17. This is one rule I would read, and read the comments.

   Permits Illinois to join the world.         Gone: secret, confidences,       now just says
    “information”

   Lawyer impliedly authorized to reveal information necessary to carry out the
    representation

   Retains mandate to disclose information dealing with death or serious bodily harm but
    now, client not necessarily the actor. Example- factory discharging toxic waste (comment
    6) MAY reveal information to prevent the client from committing fraud that is
    reasonably certain to result in substantial injury to the financial interests or property of
    another and in furtherance of which the client has used or is using the lawyers services.
    1.6(b)(2).

   Retains permissive disclosure:
       o Where required by law or court order
       o To establish claim or defense on behalf of lawyer in controversy between lawyer
           or client

   Post Enron amendments expand areas of permissive disclosure:
       o client fraud resulting in financial injury where client has used or is using lawyer‟s
           services – could be very relevant in family law cases.
       o prevent mitigate or rectify substantial injury to financial interest or property of
           another that is reasonably certain to or has resulted from client‟s crime or fraud in
           furtherance of which client has used lawyer‟s services;
   Permits lawyer to obtain advice about compliance with the Rules
   LAP still protected

                                            Three

   Rule 1.8 Current Clients, Specific Conflicts

   Prohibits sexual relationship between lawyer and client unless relationship precedes
    representation. Rule 1.8(j). See Comments 7-19. Even if the dating/sexual relationship
    predates the representation, there could still be a conflict. For example, if the client chose
    to end the relationship, and the lawyer said he or she would not continue the
    representation unless the client continued in the sexual relationship. In a custody matter,
    if the lawyer were representing the wife, the relationship itself could interfere with the
    wife‟s attempts to get custody.




                                                                                               13
                                               Four

      Rule 3.3 Candor Toward the Tribunal
      Changes Emphasis of Rule
      Old Rule-Conduct; New Rule Candor
      Lawyer shall take reasonable remedial measures for client who intends to engage, is
       engaging or has engaged in criminal or fraudulent conduct
      See Comments 10 and 11 for remedial measures


                                             Five
      Rule 5.5 Multijurisdictional Practice
      Rule 5.5 specifies circumstances in which a non-Illinois lawyer may render temporary
       legal services in Illinois
      Circumstances include:
           o Work in conjunction with an Illinois lawyer
           o Reasonably related to pending or potential proceeding in this or another
               jurisdiction
           o Reasonably related to pending or potential arbitration, mediation or other ADR
               proceeding
           o Arise out of or are reasonably related to lawyer‟s practice in a jurisdiction where
               lawyer is admitted



       ISSUES OF ETHICS AND MALPRACTICE IN DIVORCE

                          I.     Examples One Through Four
        Example One. A lawyer with over forty years of experience represented a longstanding
client, Ira, in the preparation of Ira‟s prenuptial agreement. While doing so, he communicated
directly with the client‟s fiancée, Joan, without the knowledge or consent of Joan‟s lawyer.
Moreover, he convinced Joan to allow him to draft the agreement on behalf of both parties on
terms that favored Ira and that were not consistent with Joan‟s previously expressed wishes. He
later represented Ira in divorce proceedings against Joan, now his former client, where she
challenged the validity of the prenuptial agreement and where he knew or should have known
that he would be called as a witness on behalf of Ira. Several factors were considered in
aggravation: His lack of remorse, his failure to recognize the seriousness of his misconduct, the
harm he caused to both Ira and Joan in executing an invalid pre-nuptial agreement which resulted
in protracted litigation, the financial benefit gained by him in attorney‟s fees for the litigation,
and the particular physical, emotional and financial harm caused to Joan by his own conduct. In
re Gerard Charles Heldrich Jr., M.R. 19630, 02 CH 26 (Ill. Nov. 17, 2004). He was suspended
for nine months and until he completes an ethics course.




                                                                                                 14
        See also: In re Peters, M.R. 21252, 04 CH 127 (January 12, 2007), the Court
reprimanded an attorney who, in a dissolution of marriage action, caused her client, the husband,
to present a revised settlement agreement to the wife, after the wife's attorney had instructed
Peters not to contact the wife. As a result of Peters' action, the wife signed the revised settlement
agreement without the benefit of advice from her attorney, who would have advised her against
signing it.


        Example Two. A lawyer with over thirty years experience neglected a breach of contract
suit and signed his client‟s name, without authority, to answers to interrogatories in a dissolution
of marriage case after having his secretary notarize the document in blank. As to the latter
matter, he signed the client‟s name to the document as a “convenience.” He acknowledged
signing the client‟s name to the answer to interrogatories when the matter was brought to the
divorce court‟s attention during the client‟s testimony at trial. The judge then interrupted the trial
to ask the client each question in the written interrogatories, and she verified that the answers in
the written document were correct except for one mistake. He was censured and required to
complete the Professionalism Seminar conducted by the Illinois Professional Responsibility
Institute. In re Howard Lawrence Ward, M.R. 20110, 04 CH 98 (Ill. May 20, 2005).

        Example Three. A lawyer with twenty-five years experience wrote letters to members of
the judiciary in which he falsely impugned their integrity and qualifications to serve in office.
The letter writing campaign had its genesis in a long smoldering domestic relations dispute with
his ex-wife, who he would describe in pleadings as “the womb of my child.” In the most recent
instance, he ran at his wife in a courthouse hallway and had to be tackled by an assistant state‟s
attorney. Thereafter, the judge presiding over the criminal matter received a letter from Feldman
in her courthouse mailbox stating:

       …You imprisoned me when I was not guilty and set in motion a chain of events that
prevented me from proving my innocence and destroying my life…After what happened to
me…I do not believe that there is a god, however in the event that I am wrong, I pray to him that
you are cursed throughout your life. I curse you and wish for you a long and miserable,
unhappy, unfulfilling life. I hope that you regret waking every day and that you wish you were
dead…I pray that nothing good ever happens to you or anybody that is supportive of you. You
are a mean-spirited, evil demon, and I can only hope that what you did to me (and no doubt, to
countless others) comes back to haunt you for eternity…I fervently pray that what goes around
comes around and will revel in whatever misfortunes you encounter.

The judge was frightened by the letter. She gave it to the presiding judge, who called the state‟s
attorney‟s office. The state‟s attorney‟s office contacted the police, which stationed an officer
outside her home. Thereafter, she received another comparably themed letter from the lawyer. It
was later learned that he sent similar correspondence to four other judges. Interestingly, the
ARDC Review Board declined to recommend disbarment, suggesting that there was no evidence
concerning Feldman‟s mental health presented by the ARDC in a case where, “Respondent is in
need of medical treatment.” The Supreme Court disagreed and disbarred him. In re Michael R.
Feldman, M.R. 19684, 03 CH 23 (Ill. May 20, 2005). Feldman was suspended on an interim
basis on November 5, 2004.



                                                                                                   15
         Example Four. A lawyer with fifteen years experience concentrated his practice in
domestic relations and, at any given time, had approximately 50 to 100 open client files. It was
not his practice to preserve phone messages from clients and he rarely noted the substance of
conversations with clients on his files. He had no central system to monitor the progress of his
cases but did maintain a pocket diary to track court dates. Dates of service of process were
maintained on a separate legal pad kept in his law office. The dates of divorce prove-ups were
also maintained on a separate legal pad. After a prove-up hearing, he would wait for the court
reporter to call him with a ready transcript as a reminder for him to present the final judgment to
the court for approval and entry. This case management system was characterized by the
A.R.D.C. Hearing Board as the "court-reporter-diary-jiggle-my-memory-system." The lawyer
became the subject of seven different grievances, most of them filed by clients. The clients
generally alleged that the lawyer took several hundred dollars as a retainer to prosecute a divorce
and then failed to communicate with them about the status of the proceeding. The records of the
divorce proceedings revealed that there were long periods of inactivity, ranging from 8 to 14
months in each case. Ultimately, clients either retained other counsel or the lawyer finally
procured a dissolution on their behalf. No client was ultimately prejudiced by his conduct. The
Supreme Court suspended him for failing to communicate and his lack of diligence. It held that
months of unexplained delays cannot be excused merely because the clients eventually received
the legal services for which they had retained the lawyer. Further, the attorney's claim that the
clients did not suffer from the misconduct, "ignores the anguish that his inaction necessarily
inflicted upon his clients." He was suspended for seventeen months, with the condition that
twelve months would be stayed and he would be placed on probation if he successfully devised a
case management system, passed the M.P.R.E., and diligently returned all client phone calls and
letters. In re Douglas Wayne Smith, 168 Ill.2d 269, 659 N.E.2d 896 (Ill. Nov. 22, 1995).

       Other cases of interest

                      Dishonest or fraudulent behavior

        In re David Mark Laz, M.R. 22484, 05 CH 114 (Ill. Sept. 17, 2008). Mr. Laz, who was
licensed in Illinois in 1982, was suspended for two years, with the suspension stayed after one
year by probation with conditions. He created a fraudulent child support order to reduce the
amount of support his client was supposed to pay and submitted the order to a court as an agreed
matter. He also wrote a check on a closed bank account and deposited the check into another
bank account in an attempt to deceive a creditor, forged the signature of a client‟s wife on a
document, and elicited false testimony from the client as to the signature on the document.
Finally, he neglected a client‟s appeal in a child support and custody dispute and did not refund
his unearned fee. The suspension was effective on October 8, 2008.

       In a second case involving Laz, which is pending, 07 CH 121, in an acrimonious divorce,
an order was entered regarding visitation with the children. The Respondent later took another
order to the judge‟s chambers, with different terms, and told the judge it was “agreed”. This
statement was false, and he was found to have violated Rule 3.3. The hearing board accepted his
testimony that he thought the “agreed‟ order accurately reflected an agreement (which was hotly




                                                                                                16
disputed). He had prior discipline. The recommendation of a one year suspension is pending
before the Review Board.

        In re William Joseph Phelan, M.R. 22566, 07 CH 93 (Ill. Sept. 17, 2008). Mr. Phelan,
who was licensed to practice in 1973, was censured. He filed a contempt petition in which he
falsely stated that his client‟s wife had endorsed her husband‟s name to a check drawn on a joint
brokerage account to pay for the husband‟s interim attorney‟s fees, when it was Mr. Phelan who
had actually endorsed his client‟s name to that check.

        In re Amanda Kelton Bradley Verett, M.R. 22567, 07 SH 105 (Ill. Sept. 17, 2008). Ms.
Verett, who was licensed in 2003, was suspended for ninety days and ordered to complete the
professionalism seminar of the Illinois Professional Responsibility Institute. She represented the
father in a custody dispute. She was his third lawyer in the proceeding. After the court denied
her request for emergency relief regarding medical issues, she drove to Missouri and filed
substantially the same request in the form of a request for a temporary restraining order against
the child‟s doctor. She did not advise the Missouri court of all material facts in an ex parte
hearing, principally, the fact that she had just sought, and been denied, the same relief in Illinois.
She also made a false statement to the ARDC in an attempt to impede the disciplinary
investigation.

        In In re Hays, 05 SH 3 (Review Bd., June 6, 2006), recommendation adopted, No. M.R.
21050 (Sept. 21, 2006), the attorney was suspended for one year for forgery and fraud in
connection with his own divorce proceedings. He signed his wife‟s name to an appearance and a
marital settlement agreement, had a judgment entered, and then married another woman.


                             Sexual Misconduct or Behavioral Issues

         In re Burgrabe, 07 CH 9. (Pending) One of the counts was based on conduct that came
to light in one of the Respondent's divorce proceedings. Between 1991 and 1997, using an
electronic device he taped the audio and video of his sexual activities with five different women
in the bedroom of his home. These recordings were made without the consent or knowledge of
the five women involved. The Respondent refused to identify the women, but did state that three
were former clients and one was a secretary in his office. Respondent admitted that these
recordings constituted a Class 4 felony (720 ILCS 5/14-4) (eavesdropping)
        In re J. Anthony Clark, M.R. 22030, 07 CH 36 (Ill. January 23, 2008). Mr. Clark, who
was licensed in 1980, was suspended for five months. He engaged in sexual relations with a
client who suffered from a mental illness and whom he was representing in a domestic relations
matter. The suspension was effective on February 13, 2008.

        In re Scott Robert Erwin, M.R. 22401, 04 CH 114 (Ill. Sept. 16, 2008). Mr. Erwin, who
was licensed in 1980, was suspended for fifteen months. He arranged for a female client to
perform nude dances for him in his office after hours in return for credit on her legal fees,
fondled the client, and then made misrepresentations to police officers who subsequently
investigated the client‟s allegations. The suspension was effective on October 7, 2008.



                                                                                                   17
                    Commingling, Conversion, Trust Account and Property Issues

       In re Dodie Leann Junkert, M.R. 22476, 07 SH 123 (Ill. Sept. 17, 2008). Ms. Junkert,
who was licensed in 1998, was suspended for one year, with the suspension stayed after thirty
days by a one-year period of probation. She mishandled client funds when she closed her
personal checking account and used her client trust account for personal and client purposes. The
suspension was effective on October 8, 2008.

       In re Scott V. Kelley, M.R. 22649, 06 CH 63 (Ill. Nov. 18, 2008). Mr. Kelley, who was
licensed in 1997, was suspended for two years and until further order of the Court. He
misappropriated more than $10,000 that he received from clients to be held in escrow, engaged
in conflicts of interest, neglected several civil matters and failed to promptly refund unearned
fees.

        In re Louis L. Bertrand, 07 CH 30 (September 22, 2009). Mr. Bertrand, who had prior
discipline, was suspended for 60 days for neglecting a child support matter, making a
misrepresentation to his client, and converting $60.00 in filing fees.

                                      Harassing behavior

        In re Kurt Alexander Muller and Todd Adam Walters, 09 CH 47, 09 CH 48.
The attorneys were reprimanded for their comments to their client‟s husband, who was facing a
contempt petition. After the court adjourned, the attorneys had a discussion with the husband and
his attorney, and made inappropriate and unprofessional references to what they believed would
be the husband's experience should he be sent to jail, including references to body searches that
he would or would not endure and singing the song "Jail House Rock". See rule 4.4.

        In re Melvin H. Hoffman (pending before the Review Board). 08 SH 65. The attorney
told Judge Patrick Murphy on a telephone conference that he was a “narcissistic, maniacal
mental case” who should not be on the bench.         In a follow up letter, he stated that "I must
bluntly state that you appear to have serious mental issues involving extreme narcissism and
illusions of grandiosity which effectively interferes with your ability to act as a judge." The
Hearing Board found that the attorney also made an ethic slur towards his opposing counsel, who
was Jewish, in a collection case, and that in a third matter, made harassing comments to an
administrative law judge, including stating that she ran a “kangaroo court.” The Hearing Board
recommended a suspension of a period of three (3) years, with the last nineteen (19) months
stayed by a period of probation for twenty-four (24) months, subject to certain conditions.




                                                                                               18
                                  HYPOTHETICALS
           You represent wife/mother in a bitter custody battle. Your client says that her
            husband physically abuses her, and she does not think he should be trusted with their
            child. She is distraught when you fail to convince the judge that the husband‟s
            temporary visitation should be supervised, and she tells you she cannot handle the
            stress or the prospect of him hurting their child. She wants to move with the child to
            Israel, and she asks you to help her buy time to get out before the husband suspects
            anything.

            What do you do?

            a. Play along with the client, but then, immediately tell opposing counsel and the
               court so that steps can be taken to make sure that the child is secure.
            b. Try to talk her out of it.
            c. Carefully explain that there are several legitimate legal moves you can undertake
               that will use up some time and that she should not tell you anything more about
               her plans.


           You represent the husband in a divorce where the wife is alleging that your client is
            distorting the value of his business. Your client asks you to get his deposition
            rescheduled because of a business convention he suddenly needs to attend. When he
            returns, he shows you pictures of him and his new girlfriend enjoying the high life on
            the „company‟ tab. Your client‟s wife was suspicious when the deposition got
            continued. She knows he has not attended this particular convention in years and, in
            fact, he used to avoid it because it was expensive and useless. During the rescheduled
            deposition, your client is asked about the trip, and he answers that he decided to go
            because a new client wanted him to be there. He testifies that he traveled alone, he
            stayed alone, and he ate alone or with business clients.

            What do you do?

            a. Let the deposition proceed, concluding that the questions about the business trip
               are not material.
            b. Ask for a recess, advise your client to correct his testimony, and fake a sudden
               angina attack when he refuses.
            c. Let the deposition proceed, ask your client clarifying questions at your earliest
               opportunity, and surrender to the inevitable when he continues to lie.




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