Ethics & Professional Responsibility FLASHPOINTS May 2024

Terrence P. McAvoy & Katherine G. Schnake
Lawyers for the Profession, Hinshaw & Culbertson LLP, Chicago
312-704-3000 | E-mail Terrence P. McAvoy | E-mail Katherine G. Schnake

Illinois Appellate Court Affirms Default Judgment Against Attorney After He Repeatedly Fabricated Expert Witness Disclosures “from Whole Cloth”

The First District Appellate Court in Illinois held that the trial court (Judge Patrick J. Sherlock) was correct to enter a default judgment against an attorney in a legal malpractice action after the attorney repeatedly fabricated his expert witness disclosures “from whole cloth.” Stoyanov v. Himont Law Group, Ltd., 2024 IL App (1st) 221434-U, ¶2.

Complete Summary

On February 22, 2019, the plaintiff filed a professional negligence action against the defendants. The plaintiff alleged he retained defendants in 2010 and “used defendants as his primary lawyer for several years.” 2024 IL App (1st) 221434-U at ¶4. In 2012, the defendants asked the plaintiff to invest in a company known as Credit Union Mortgage Utility Banc, Inc. (CUMU). The defendants proposed that the plaintiff deposit money into the defendants’ trust account to be held in escrow pending a valuation of the company and the drafting of corporate documents. Id.

The plaintiff then deposited $400,000 with the defendants, which the defendants allegedly misappropriated. As of July 2021, the plaintiff had not received any shares in CUMU, and the defendants refused to return his $400,000. The plaintiff thus filed an action against the defendants for professional negligence, breach of fiduciary duty, conversion, and spoliation of evidence.

On November 4, 2020, the defendants disclosed Mary Robinson as an expert witness. The defendants stated that Robinson “w[ould] testify that, based on Illinois Supreme Court Rules, and IARDC regulations, that Defendant did not commit any legal malpractice.” 2024 IL App (1st) 221434-U at ¶6. Discovery closed on September 30, 2021. On November 10, 2021, the plaintiff moved to bar Robinson from testifying, alleging that the “[d]efendants did not actually retain Ms. Robinson or even contact her about this case.” 2024 IL App (1st) 221434-U at ¶7.

The plaintiff attached an e-mail exchange between his counsel and Robinson, which confirmed that Robinson had not been retained. On February 8, 2022, the trial court struck the Robinson disclosure, finding that it was “woefully inadequate” and that it was unclear whether the defendants ever retained Robinson. 2024 IL App (1st) 221434-U at ¶8.

The defendants were given additional time to supplement their disclosures. Shortly after that, the defendants disclosed Michael Favia as their new expert. In the Favia disclosure, the defendants attested that Favia had reviewed a lengthy list of documents. The defendants further attested that Favia had reached certain opinions, including that the defendants did not breach their duty of professional care to the plaintiff.

On March 15, 2022, the plaintiff filed an emergency motion to strike the Favia disclosure. In response, Favia’s office contacted the plaintiff and told him that Favia had not been retained or received any documents. The defendant had contacted Favia about being retained as an expert, but “that was it.” 2024 IL App (1st) 221434-U at ¶10. The plaintiff requested that the court bar defendants from presenting any experts and impose sanctions. The defendants responded that Favia had initially agreed to be their expert but later “excused himself from the matter.” 2024 IL App (1st) 221434-U at ¶11. Within 48 hours of learning of this, the defendants retained a new expert witness, Michael Raiz. The defendants then filed a second amended expert disclosure.

At a March 22, 2022, evidentiary hearing on the plaintiff’s sanctions motion, the court heard testimony from Robinson, Favia, Raiz, Husain’s cocounsel James Pittacora, and Husain. Robinson testified that “she never spoke with either defendants or their counsel about offering expert testimony in the case, did not review any documents, has formed no opinions and defendants never retained her to offer opinions in this case.” 2024 IL App (1st) 221434-U at ¶14.

Favia testified that he spoke with the defendants about offering expert testimony, but he did not review any documents or form any opinions. Raiz testified he spoke with the defendants about being an expert and “if given time he would be able to offer opinion testimony.” 2024 IL App (1st) 221434-U at ¶16. Raiz testified he only “reviewed 5 documents and a string of emails, . . . not defendants’ entire document production,” and never formed any “opinions or conclusions.” Id.

Pittacora, Husain’s cocounsel, signed the interrogatory answers disclosing Robinson as the defendants’ expert but admitted that he “had never spoken with Robinson” and “relied upon Husain’s prior work product.” It was Husain, not Pittacora, who signed the Favia and Raiz disclosures.

Husain testified that he spoke with Robinson, and she agreed to give her opinions on the case. No corroborating evidence (e.g., e-mails, telephone call logs, notes, or draft reports) supported Husain’s testimony, which was “flatly contradicted” by Robinson’s “credible testimony.” Husain also testified that he spoke with Favia, who agreed to give opinions on the case. Husain’s testimony that Raiz agreed to provide opinions in the case was impeached by other evidence.

On March 29, 2022, the trial court issued a written order finding that “Husain’s testimony was, in a word, nonsense.” 2024 IL App (1st) 221434-U at ¶20. Concluding that the defendants’ conduct was “an abuse of the discovery process,” the trial court concluded that “Husain made up the disclosures from whole cloth — 3 times!” Id. The court found that Husain acted “outrageous[ly]” in “fabricat[ing] evidence to support his case.” The court barred the defendants’ experts, allowed the plaintiff to file a petition for the attorneys’ fees, struck the defendants’ answer, and entered judgment on the issue of liability in favor of the plaintiff.

The trial court subsequently granted the plaintiff’s motion for summary judgment on the issue of damages for $400,000 plus $160,219.18 in prejudgment interest. The court also awarded fees in the reduced amount of $23,831.05.

On appeal, the defendants argued that their conduct, which they characterized as an “error in presentation,” did not “rise to the level of sanctionability.” 2024 IL App (1st) 221434-U at ¶23. In the alternative, they argued that the sanctions imposed by the trial court were excessive.

The appellate court held that the record amply supported the trial court’s finding that the defendants violated Rule 213(f)(3) on three separate occasions by fabricating opinions. All three experts testified that the opinions attributed to them in the disclosures were not their opinions. The court agreed with the trial court that the defendants were obviously aware that their “experts” had not reached the opinions disclosed. The appellate court thus affirmed the trial court’s rulings.

Significance of Decision

This decision is significant because it demonstrates the ethical obligations attorneys must follow under the Illinois Supreme Court Rules and Rules of Professional Conduct and the potentially severe consequences of their failure to comply.

For more information about ethics and professional responsibility, see ELEMENTS OF ILLINOIS LAW: PRACTICING ETHICALLY (IICLE®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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