Illinois Disciplinary Board Suggests Attorney Receive Three Year Suspension for Blogging About Misconduct in Probate Court

We will have to wait to see if the Illinois Supreme Court goes along, but you might be able to add that state's judicial officials to those who think they, unlike every other government official, are entitled to special rules shielding them from criticism.  The Report and Recommendation of the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission details the facts

Sketch of JoAnne Marie Denison

and blogging activity of attorney JoAnne Marie Denison that led to a suggested three year suspension:

The statements at issue concern an adult guardianship proceeding and persons involved in that proceeding. Mary G. Sykes (Mary) was the subject of the proceeding, in the Probate Division of the Circuit Court of Cook County. 

In July 2009, one of Mary’s daughters, Carolyn Toerpe, filed a petition seeking to be appointed guardian of Mary’s person and estate. Attorney Harvey Waller then represented Toerpe. In this petition, Toerpe alleged Mary, age 90, was disabled due to dementia and memory loss. (Adm. Ex. 1 at 1). Multiple doctors had diagnosed Mary with dementia and considered her incapable of making her own personal and financial decisions. 

Shortly after Toerpe’s petition was filed, the court appointed attorney Cynthia Farenga to act as guardian ad litem (GAL) for Mary. On August 26, 2009, the court appointed attorney Adam Stern special GAL. (Both Stern and Farenga acted as GALs for Mary thereafter.The role of the GAL is to provide information to the court, assist the court in making a proper decision in the case, and represent the alleged disabled person’s best interests. While the GAL does not advocate for the alleged disabled person’s wishes, the GAL does inform the court of the person’s wishes in relation to the guardianship.  Farenga testified Mary never told her Mary wanted a lawyer. 

There was significant controversy among Mary’s relatives, which played out in the probate proceedings and other litigation. Mary’s other daughter, Gloria Sykes (Gloria), filed counter-petitions which, while alleging Mary was disabled due to dementia, sought to have someone other than Toerpe appointed guardian. Numerous issues were raised in the probate proceedings. The court’s jurisdiction was challenged, multiple times, based on the sufficiency of the notice given to Mary and her sisters of the guardianship proceedings. Those challenges were unsuccessful, despite multiple appeals by Gloria. Gloria attended court on multiple occasions, as did other relatives. Disagreements over visitation with Mary began shortly after the probate case was filed. From the perspective of some relatives, Toerpe was isolating Mary against her will and improperly obstructing efforts to visit with Mary. 

In December 2009, the probate court found Mary incompetent and appointed Toerpe her guardian. Before this order was entered, the court heard evidence as to the respective plans of Toerpe and Gloria for Mary’s care and gave relatives, including Gloria, the opportunity to question Toerpe about her care plan. 

After the guardianship order was entered, disputes continued. Attorney Peter Schmiedel began representing Toerpe. Many of the disputes concerned emotionally charged issues. There were ongoing disagreements about the nature and quality of care Mary was receiving. Accusations were made that Toerpe and her husband abused and neglected Mary. Visitation remained an ongoing, contentious issue. Two incidents exemplify the situation. Mary’s 84-year-old sister, Yolanda Bakken (Yolanda), described going to Toerpe’s home to visit Mary and being shoved by Toerpe and Toerpe’s husband.  In a separate incident in June 2013, Naperville police were called, by Toerpe or at her request, when Gloria and other persons, including Respondent, went to the assisted living facility where Mary was residing.

As noted above, the family was involved in other litigation. That litigation included actions to partition a joint tenancy between Mary and Gloria as to one house and to evict Gloria from another house, owned by a trust of which Toerpe was trustee.  In addition, in June 2009, Mary had accused Toerpe of financially exploiting her and filed a petition for an order of protection. Some of Mary’s relatives believed Toerpe’s petition for guardianship was filed in response to the petition for order of protection.  

There was also controversy concerning another lawsuit (the Lumbermen’s case). The Lumbermen’s case involved the house Mary and Gloria owned in joint tenancy (the brown house). Gloria, who had been living in the brown house, alleged she contracted cancer due to conditions in the home. The brown house had been seriously damaged by mold. The trust owned Mary’s home (the white house). In August 2002, Gloria had moved into the white house and was living there with Mary. Gloria described a very close relationship between herself and Mary. 

The Lumbermen’s case settled in October 2008, for approximately $1.3 million. Of that amount, approximately $700,000 was to be paid to Mary and Gloria. In October 2008, Mary executed a document (the Apportionment Agreement), which purportedly relinquished her interests in the Lumbermen’s settlement to Gloria. Respondent notarized Mary’s signature on the Apportionment Agreement. Conflicting evidence was presented as to whether or not Respondent had any further involvement in the Lumbermen’s case or with the Apportionment Agreement.

In the probate proceedings, issues were raised as to Mary’s mental capacity to execute the Apportionment Agreement and what, if any, portion of the Lumbermen’s settlement proceeds might belong to Mary. In November 2009, the probate court entered an order freezing assets in an account held by Gloria, until these issues could be resolved. Additional issues were raised as to the manner in which Gloria had handled settlement proceeds, her compliance with court orders and whether Gloria owed Mary any additional sums for the mortgage. These matters became the subject of significant controversy. In 2013, after a contested evidentiary hearing, the probate court found Mary lacked the mental capacity to execute the Apportionment Agreement and set that agreement aside. However, the court still had to determine how much of the proceeds belonged to Mary.

Respondent had attempted to file her appearance for Gloria in the probate case, in November 2009. Prior counsel had withdrawn. (Tr. 1684; Adm. Ex. 1 at 5). The GALs objected, on the grounds Respondent might be called as a witness, particularly as to Mary’s mental capacity to execute the Apportionment Agreement. On December 7, 2009, the probate court issued an order disqualifying Respondent.  

Denison, who was not allowed to represent Mary Sykes, then began blogging about the case in November of 2011:

The Complaint identifies ten specific blog posts, made between April 19, 2012 and August 21, 2012, to support the allegations of misconduct. Respondent admitted the Complaint accurately stated these blog posts.  Posts on the blog from some of those dates include submissions attributed to persons other than Respondent. However, as to all of the specific language charged in the Complaint, either Respondent admitted authoring the language  or way the language appears on the blog, e.g. above Respondent’s name, indicates she did so. The posts specifically identified in the Complaint are set out below.  

The first post is from an entry on April 19, 2012, which suggests Mary had a large estate but “has been fleeced of her home, about a million in gold coins?as well as other property the family can and would verify if given a chance.”

The language at issue appears in the context of statements that Respondent and Ditkowsky have been working on the blog, in an effort to inform others of the situation involving Mary. The charged language reads those attorneys who will churn fees at hundreds of dollars per hour-want us silenced. They apparently have a lot of clout in Probate and even with the ARDC?

And I would like to note (JMD) that if you follow the money trail, it leads directly to the Plenary Guardian, the GAL’s [sic] Adam Stern and Cynthia Farenga, and the Guardian’s attorney’s [sic] Harvey Waller and Peter Schmeidel/Dorothy Soehlig!   

Schmiedel has a colleague named Deborah Soehlig. (Tr. 616). Respondent’s initials are JMD.  

The second post is an entry on April 25, 2012. After referencing a separate case which, allegedly, included circumstances like those in the Sykes case, the charged language stated: “(a)s in the Sykes case, currently the GAL is adding other attorneys to the case to outlawyer the daughter and churn the feeding frenzy [sic] – all with court connected lawyers.” 

The third post (the Black post) is dated April 28, 2012. This entry purports to be from a facsimile transmission to Lea Black, the attorney who initially represented the Administrator in these proceedings.  In the Black post, Respondent referred to the Sykes case and stated there was a clear pattern “to exclude, snub, snob and ignore any pleading that Gloria filed,” while granting, “anything offered either orally or by mere hint of suggestion by the tortfeasors,” Stern, Farenga and Schmiedel, “without findings, no hearing, no discussion, and often without any written Motion or Notice of Motion.”  The Black post continued with the following language:

Isn’t this the classic case of corruption?…   

The judge in the Probate Court declared in August of 2011 she did not have to follow court rules or Illinois Statutes pertaining to Civil Procedure in Court-she was exempt. Then she grants this privilege to the court officer miscreants-and now it is clear for the world to see this is a continuing pattern, ala Dorothy Brown who has finally provided some meager form of computerization to the Circuit Courts.

Why aren’t the Circuit Courts of Cook County computerized when the federal courts have been computerized since 200? 1) a thousand incompetent and computer illiterate patronage workers would have to be fired in a single day ? and 2) politically connected judges and their puppet attorneys (the GAL’s [sic]) would be exposed for what they are: money grubbing, family strife churning leeches that create nothing but pain and misery in a family while swiping free parking money out of a well funded estate.

The fourth post is dated May 24, 2012. To put the charged language in context, the blog post from that date began with the heading, authored by Respondent: “(f)rom Ken Ditkowsky – Reasons for a number of agencies to get involved and investigate.” (Tr. 1573; Adm. Ex. 23 at 7). Text followed, apparently authored by Ditkowsky, which complained of the manner in which Mary was found incompetent, called for an investigation and stated the determination Mary was incompetent was “a foregone conclusion orchestrated by an agreement” between the GALs and the guardian’s attorney. (Adm. Ex. 23 at 7). This theme continued in text posted by Respondent, which included comments that honest attorneys, “the ones not making a profit from corruption,” who report their suspicions of theft by “the court and the authorities,” become the subject of groundless complaints, while “the miscreants dance away with impunity.” The language charged in the Complaint was part of the text Respondent posted regarding the Sykes case. That language stated: “(a)gain, the entire case was railroaded, the file was peppered with packs of lies, and these lies were rubber stamped by (the GALs) and the Probate Court in a ?done deal.’ Scary.”    

The fifth post, from June 1, 2012, asserted a transcript, to which the blog provided a link, shows Judge Stuart side stepping the major issues in the case. The language at issue appeared in one of three postscripts, following Respondent’s name at the conclusion of the post. That language read:  

?from this transcript, it is clear the judge is talking to the miscreant attys in the hallway, Scott and Gloria always see them coming from behind the judge’s private areas, and it is clear that the court is being spoonfed BS law by atty miscreants rather than having to actually read cases and make decisions based upon briefing schedules. 

The sixth post, from July 7, 2012, consisted of a letter from Respondent to Kevin Connelly at the Office of the Sheriff, Circuit Court of Cook County. In this letter Respondent suggested corruption in the Sykes case for multiple reasons, including lack of jurisdiction, the court and GALs acting without authority and documents missing from the court file. Respondent also suggested corruption was the reason she was not permitted to use a laptop in probate court, particularly in relation to the Sykes case. The letter stated “(a)ny day now this will blow and it may well create a scandal more far reaching than Greylord.” (Adm. Ex. 25 at 2). Respondent’s letter included the statements at issue, i.e.:  

I am an attorney running a blog on http://www.marygsykes.com/, which appears to be a very corrupt case, with corruption reaching to the highest levels, including the ARDC?. 

So, just let me know if you are on the side of cleaning up the courts or if you are a SOP patronage worker that fears every day to be thrown under the bus for whistleblowing. You get a choice today. I think Judge Evans made his choice. Too bad it’s now permanently on the internet tagged under “corruption.”

The seventh post was language from the Table of Torts. The language charged is the language contained in the Table of Torts post, set out above. 

The eighth item charged involved a document posted on the blog which purported to be a motion by Farenga to dismiss the Sykes probate case for lack of jurisdiction (motion to dismiss post). The motion listed Farenga as the preparer. This post included a notice, suggesting Farenga intended to present the motion to the court. (Adm. Ex. 26 at 15-17). Farenga did not prepare these documents, which were contrary to her position in the Sykes case, or authorize their preparation. Respondent prepared these documents. 

The ninth post charged consisted of a facsimile transmission of correspondence from Respondent to Diane Saltoun, at the office of the Illinois Attorney General. The blog stated Respondent’s fax to Saltoun was accompanied by her “famous” Table of Torts. In her correspondence, Respondent stated: 

(w)hile the above case has a long, long history, much of which is documented on a blog to be found at http://www.marygsykes.com, the reality of the situation is that this probate proceeding boils down to garden variety theft, embezzlement, malpractice and malfeasance by attorneys and the court?

Please look at the attached and all the information I will fax you shortly. This is a case that could be bigger than Greylord-what is being done to deprive grandma and grandpa of their civil rights and how the Probate court (routinely) operates. 

The tenth post was an entry from August 21, 2012, entitled “(a)ltered court orders, fabricating attorneys, the sage continues.” After referring to orders in the probate case, with links to two of those orders, the language charged appeared. That language read:

(n)othing like the time honored true fashion of if you don’t like what the order said when the parties agreed, just get the judge behind closed doors and get her to alter it. And do it messily and have two ?entered’ stamps on it. 

Even a grammar school child can forge a parental note with more skill and care than the minimal amount which was taken in this matter to cover up the tracks of their torts by these bumbling miscreants!

The Hearing Board found that Denison had made statements concerning the integrity of the judges, knowing they were false or with reckless disregard for their truth or falsity, and engaged in dishonest conduct and conduct prejudicial to the administration of justice.   Once again, it appears that an attorney disciplinary board is taking the position that the judges are entitled to more protection from criticism than every other public official.  As discussed extensively on this blog, despite what state supreme courts would like to think, even attorney criticism is protected by the actual malice standard of New York Times v. Sullivan.