Posted Dec 12, 2013 11:45 am CST
An attorney-ethics review board is recommending a censure for an Illinois lawyer accused of being “less than candid” about how he got a copy of a page from a judge’s personal appointment book.
The lawyer, Samuel Cahnman, is also a Springfield, Ill., alderman. The State Journal-Register reports. The Legal Profession Blog noted the report and recommendation by the Illinois Registration and Disciplinary Commission’s Review Board.
“This matter arises out of respondent’s conduct in taking a Sangamon County judge’s personal appointment book, making a copy of a page from the book and attaching it to a motion, and then being less than candid when asked by the judge how he obtained the appointment book page,” according to the review board report.
Cahnman made the copy after he was retained to represent a doctor who had been assessed $86,000 in past-due child support. The doctor said that when he was representing himself pro se, he believed he had a motion to reduce child support that was set for hearing on March 1, 2007, but that the hearing date was canceled because of an alleged ex parte communication between his ex-wife’s lawyer and the judge.
Cahnman found no notice of a hearing in the court file, then decided to investigate further by checking the judge’s appointment book, kept on the desk of a receptionist, according to the review board. He found the case name on the page for March 1, but it had a line drawn through it. He made a copy and attached it to a motion, the review board summary says.
Cahnman testified that he looked at the appointment book with the receptionist before he made a copy. He acknowledged it was possible the receptionist was on the phone or otherwise occupied when he copied the page. She maintains she never gave Cahnman permission to make the copy.
When questioned by the judge in a court hearing, Cahnman said “something to the effect that [the receptionist] gave it to me,” the judge testified at the ethics hearing. Cahnman also admitted the receptionist had given him a copy in an answer to the ethics complaint, the review board said. A hearing board concluded there was insufficient evidence that Cahnman made an affirmative false statement to the judge, since his exact words to the judge are not known, but his statement to the judge was intended to deceive.
The review board concluded that a censure was warranted, given Cahnman’s “misrepresentation to the court, and his attempt to suggest malfeasance by a court employee.”
Cahnman told the ABA Journal he is reviewing the opinion to determine whether he will ask the state supreme court to take the case. He notes there was no transcript of the hearing in which he told the judge how he got the copy, but his recollection, as he reported to the hearing board, was that he said “I got it through Shirley,” the receptionist, which was not misleading.
The exchange with the judge occurred at a status hearing, Cahnman told the ABA Journal in an email. “I had no idea of any problem or that I was going to be asked the question I was asked, so I had no time to fabricate,” he said. “Further, as is pointed out in the brief, at the time, it was my understanding that this was a public record (it is paid for with tax dollars) and there was nothing wrong with an attorney or a party getting a copy of a page.”
He notes the hearing board found he did not lie to the judge, though it determined his response was misleading and calculated to deceive. “If a statement is not false and not a lie,” Cahnman asks in the email, “how can it be misleading and calculated to deceive? As stated earlier, I had no time to calculate. … This was a spur-of-the-moment thing.”
He adds that a polygraph examination determined he did not lie to the judge, but the hearing board refused to admit the evidence. The review board refused to disturb that decision, saying there is no precedent for allowing such evidence in a disciplinary proceeding.
“The bottom line is that to find someone engaged in conduct involving dishonesty, fraud, deceit or misrepresentation by clear and convincing evidence, the evidence of such should be clear,” Cahnman said in the email. “The vague memories years later of what was asked and what was answered should not be relied on to impose the very serious and permanent sanction of attorney discipline, especially when my statement that I got it through Shirley was true.”