Ethics

Lawyer who exclaimed 'gadzooks' at trial delayed but didn't disrupt justice, ethics hearing board says

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Updated: A suburban Chicago lawyer who clashed with a judge in an effort to make a record and exclaimed “gadzooks” in response to her ruling should be reprimanded, according to a recommendation by an ethics hearing board.

Lawyer David C. Thollander, who has offices in Lombard, Illinois, should be reprimanded for conduct prejudicial to the administration of justice, according to a Sept. 8 report and recommendation by the hearing board of the Illinois Attorney Registration and Disciplinary Commission.

The Legal Profession Blog has highlights.

The hearing board said Thollander should be reprimanded for continuing efforts to make a record after the judge ruled on his objection. But it rejected allegations that he engaged in conduct intended to disrupt a tribunal and violated other ethics rules.

Thollander’s “initial refusal to accept the court’s evidentiary ruling caused the court to expend time urging him to move on, precipitated a five-minute recess, and ultimately created a tense situation that culminated in the court ending the proceedings early on May 23, which caused a delay in the trial,” the hearing board said.

Thollander made the “gadzooks” remark during a May 2018 bench trial in Cook County, Illinois, before Judge Anna Demacopoulos, according to the report. Thollander was representing a client alleging age discrimination that arose out of his attempt to purchase property.

Thollander said something that was inaudible, and Demacopoulos asked him to speak a little louder.

“Oh, gadzooks,” Thollander replied.

Demacopoulos called a five-minute recess. When proceedings resumed, Thollander interrupted questioning to ask whether he could make a record. The judge refused. This exchange ensued:

Demacopoulos: “Mr. Thollander, I’m warning you at this time. Please have a seat. Mr. Thollander, please have a seat.”

Thollander: “I want to make a record.”

Demacopoulos: “Have a seat.”

Thollander: “I still want to make a record.”

Demacopoulos: “Have a seat.”

Thollander: “I’m sitting down.”

Demacopoulos: “Thank you.”

Thollander: “I want to make a record.”

Demacopoulos (addressing Thollander’s opposing counsel, Kevin Besetzny): “Mr. Besetzny, please. You may ask another question.”

Thollander: “Your honor, I’m objecting to the court. I want to make a record as to the issue of the offer. [My client’s] complaint sought among other things enjoining the sale and having the property sold to him and the discussions and offer around the sale all pertained to settlement or partial settlement of this case.”

Demacopoulos: “Ask another question, Mr. Besetzny. Mr. Thollander, if you make one more comment under your breath.”

Thollander: “I said, ‘gadzooks.’”

Demacopoulos: “Mr. Thollander, if you make one more comment that’s offensive to this court, I will hold you in contempt of court.”

Thollander: “Gadzooks is offensive to the court?”

Demacopoulos: “You are now in contempt of court. I’m fining you $1,000. Ask another question, Mr. Besetzny.”

Thollander: “May I ask the court.”

Demacopoulos: “You are now [at] $2,000. Ask another question, Mr. Besetzny.”

Demacopoulos increased the fine to $3,000 after she said the witness was confused about an exhibit and asked Thollander what tab that he was looking at. Thollander replied, “25” in what Demacopoulos deemed to be a scream.

Demacopoulos later vacated the $3,000 sanction and held a sanction hearing. She found Thollander in direct criminal contempt and fined him $1,000.

Demacopoulos found that Thollander refused to comply with court orders, continually muttered under his breath during the trial, interrupted the court by yelling “gadzooks,” and “behaved in other rude, hostile and unbecoming manners.”

An Illinois appeals court affirmed the contempt judgment.

During the ethics hearing, Demacopoulos testified she didn’t know what “gadzooks” meant. But she considered it offensive, and it appeared to be a way to critique or undermine her ruling.

Thollander testified that he didn’t consider “gadzooks” to be offensive, and he said it out of frustration. He also said he did not yell, shout or scream “gadzooks” or “25.” When he did raise his voice, Thollander said, he did it so his 83-year-old client could hear him.

Besetzny said he heard Thollander mutter “gadzooks,” but he had no recollection of him yelling the word or screaming “25.”

The hearing board said its findings shouldn’t be construed as a comment on the judge’s contempt findings. Instead, the board said, it is examining a “snapshot of the events” and how they relate to ethics rules.

The board rejected allegations that Thollander engaged in conduct intended to interrupt a tribunal; represented a client in a way to embarrass, delay or burden a person; and committed a criminal act reflecting adversely on his fitness as a lawyer.

In mitigation, Thollander submitted testimony from three character witnesses, including a DuPage County, Illinois, judge he has appeared before. He has no prior discipline.

“By no means do we excuse [Thollander’s] misconduct, but neither do we find it particularly serious, given that it occurred on one afternoon of a four-day trial, caused no harm to the parties, and caused only a short delay in the proceedings,” the hearing board said. “We also find that [Thollander’s] misconduct is mitigated by the facts that he fully cooperated in his disciplinary proceeding, has an unblemished record in 33 years of practice, and presented impressive character testimony.”

Thollander told the ABA Journal that he doesn’t plan to oppose the recommendation for a reprimand. The ethics case has been an “albatross” that has been hanging over him for four years, and he is ready to put it behind him, he says.

Thollander says he was “delighted” that the hearing board saw that he didn’t yell and didn’t defy a court order.

“I was vindicated,” he says, “with the exception of the exchange concerning making a record. And that baffles me because at trial these things happen.”

Thollander expressed concern that the ethics case could discourage lawyers from pressing forward to make a record or raise other issues for their clients.

Thollander noted that he had filed a motion to disqualify the judge before trial, but she had denied it.

Updated Sept. 15 at 11:40 a.m. to include David C. Thollander’s comments.

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