Legal Ethics

Lawyer is accused of faking illness to avoid oral arguments; ethics complaint says he didn't vomit

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Updated: An Illinois lawyer is accused in an ethics complaint of faking illness to avoid oral arguments before the Chicago-based 7th U.S. Circuit Court of Appeals.

The Aug. 29 complaint by the Illinois Registration and Disciplinary Commission alleges that Michael Joseph Finn told a court clerk on April 14, 2011—the day of oral arguments—that he had vomited that morning and was too ill to come to court. In reality, the complaint alleges, Finn was not ill.

“He did not vomit and he was well enough to go to court,” the complaint alleges. “Respondent did not go to court because he felt unprepared.” The complaint does not cite the basis for that conclusion. It does say Finn had paid a brief writer $5,000 to prepare drafts of appeals briefs on behalf of his client, Kenneth Clark. Finn had accepted $15,000 to represent Clark.

According to the complaint, the clerk’s office told Finn to keep his phone nearby in case his appearance was required, but Finn did not answer or return phone messages left by the clerk.

The 7th Circuit panel held oral arguments without Finn, and Finn’s client lost the appeal. In an order to show cause, the appeals court said Finn should supply medical documentation of his illness, such as a certificate showing his admission to a hospital emergency room. Finn supplied no documentation, and the court fined him $1,000 in its Sept. 15, 2011 opinion, the complaint says.

The 7th Circuit opinion did not say anything about Finn’s report of illness, however. Instead, the opinion said he “has failed to offer any explanation—or even drop a hint—as to why he abandoned Clark at that critical moment.”

Finn offered this explanation after the disciplinary commission opened an investigation: “On the evening of April 13, 2011, I went to bed with a headache and with a queasy feeling in my stomach. During the night, I had cold sweats and had difficulty sleeping. On the morning of April 14, 2011, I got out of bed sometime around 5 a.m. I went to the bathroom and vomited. I went back to bed and got up again around 8:30 a.m. Although I felt much better at this time, I thought I was not well enough to go to court. After going back and forth about it, I decided to stay home. … I simply was ill on a critical day of court for my client. In retrospect, I believe I was medically able to participate in oral arguments, but it was a close call and at the time I thought that I was too ill.”

Finn also said in a sworn statement that he didn’t take phone calls because he went to bed. He did not go to the hospital, he said.

The Legal Profession Blog notes the complaint and poses a question: “How do you prove someone didn’t vomit at a particular date and time?”

Finn responded on Tuesday to messages left with his office. He tells the ABA Journal he doesn’t think he will contest the allegations, but he can’t comment further because he has not yet filed an answer to the complaint.

Updated on Sept. 24 to include comment by Finn.

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