appointed to ensure that grandchild received counseling ... · guardian ad litem for grandchild, the petitioner would need to allege neglect on the part ... Laura, who is totally

BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

CHERYL ANN POWELL, Commission No. 2018PR00031

Attorney-Respondent,

No. 6197333.

ANSWER TO AMENDED COMPLAINT

Now comes CHERYL ANN POWELL, by her attorney, SAMUEL J. MANELLA, and

for her Answer to the Amended Complaint, states as follows:

COUNT I

(Improperly revealing confidential information)

1. On April 13, 2016, Cody Richardson ("Cody") pled guilty to Criminal SexualAbuse, where the victim was his four-year-old daughter, in case 16CF23, JeffersonCounty, Illinois.

ANSWER:

Respondent neither admits nor denies the allegations contained in Paragraph 1 ofCount I of the Complaint due to lack of specific knowledge.

2. On May 26, 2016, Respondent and Laura Richardson ("Laura") met atRespondent's office. Laura, who was Cody's mother, was concerned for the well-being ofher four-year-old granddaughter ("grandchild") and Laura wanted guardian ad litemappointed to ensure that grandchild received counseling. Respondent and Laura agreedthat Respondent would represent Laura in seeking a guardian ad litem and court-orderedcounseling for her four-year-old granddaughter. Respondent and Laura agreed that Laurawould pay Respondent a $2,000 retainer and Respondent would bill against the retainerat $200 an hour.

ANSWER:

Respondent admits the allegations contained in Paragraph 2 of Count I of theComplaint and further answering, states that Respondent agreed that she wouldfirst investigate whether or not the State was filing a petition, and if so, then she

Andrea

Filed - ARDC Clerk - Today's Date

would not have to file one. Respondent explained exactly what a Petition forAdjudication was, and that abuse, or neglect would have to be alleged. It was notdiscussed at that time which allegations of abuse or neglect would be made, justthat it would likely be neglect. Respondent made it very clear that she would haveto talk to the State before she did anything else. A Petition for Adjudication ofWardship was the only way Respondent was going to be able to get a Guardian AdLitem appointed.

3. At no time did Respondent explain to Laura that in order to petition for aguardian ad litem for grandchild, the petitioner would need to allege neglect on the partof grandchild's mother, Heather Richardson ("Heather"), who was still married to Cody atthe time. At no time on May 26, 2016, did Respondent discuss with Laura the possibilityof filing a petition for adjudication of wardship, nor did Respondent explain the nature ofa petition for adjudication of wardship.

ANSWER:

Respondent denies the allegations contained in Paragraph 3 of Count I of theComplaint.

4. Laura, who is totally blind, was accompanied at the meeting withRespondent by her ex-husband, Dennis Richardson ("Dennis"). During the meeting,Laura repeatedly told Respondent that she did not want her son, Cody, or his wife,Heather, to learn that Laura had retained an attorney and was contemplating filing anaction concerning grandchild.

ANSWER:

Respondent admits the allegations contained in Paragraph 4 of Count I of theComplaint.

5. On or after May 26, 2016, Respondent communicated with Sonya Ligon("Ligon"), the Assistant State's Attorney in Jefferson County who was the prosecutorassigned to case number 16 CF 23, and Respondent disclosed the following information:

• she represented Laura in matters related to Laura's concern for grandchild'swell-being;

• Laura was worried about whether grandchild was attending counseling; and

• Respondent intended to file a petition for adjudication of wardship in regards tograndchild.

ANSWER:

Respondent admits the allegations contained in Paragraph 5 of Count I of theComplaint and further answering states that Sonya Ligon is the juvenileprosecutor, who would have filed the Petition for Adjudication if one was ever filedand was not the felony prosecutor of the criminal case. The felony prosecutor wasAssistant State's Attorney Rice. Ms. Ligon was heavily involved in that case andhad participated in several meetings regarding this case, including severalmeetings with Ms. Richardson. Ms. Ligon told Respondent that Ms. Richardsonwas vacillating about whether or not Ms. Richardson wanted them to file a Petition.She indicated that one time they were all set to file and Ms. Richardson changedher mind. Respondent does not recall all the details; Ms. Richardson on thecontrary, insisted that the State refused to help her and was sympathetic toHeather, so she needed to get her own lawyer.

6. At no time did Laura authorize Respondent to disclose the information setforth in paragraph 5, above.

ANSWER:


7. At no time did Respondent receive Laura's informed consent to disclose theinformation in paragraph 5, above.

ANSWER:


8. On or after May 26, 2016, Respondent communicated with Paige Strawn("Strawn"), who was Cody's defense attorney in case 16CF23 and disclosed the followinginformation:

• she represented Laura in matters related to Laura's concern for grandchild'swell-being; and

• Laura was worried that grandchild was not regularly attending counseling.

ANSWER:

Respondent admits the allegations contained in Paragraph 8 of Count I of theComplaint.


ANSWER:

Respondent admits the allegations contained in Paragraph 9 of Count I of theComplaint, and further answering Respondent did not seek authorization as shebelieved that the questions were merely procedural, and that Strawn would, asCody's lawyer already have been aware of whether or not a Petition forAdjudication of Wardship had been filed or would likely be filed in the near futureby the State.


ANSWER:

Respondent admits the allegations contained in Paragraph 10 of Count I of theComplaint, and further answering, states that Respondent contacted Paige asRespondent could not get an answer from Ms. Ligon. Respondent contacted Ms.Ligon at 4:47 p.m. At 4:54 p.m. Ms. Ligon replied, and Respondent could not get astraight answer out of her about what they were doing. Respondent wrote Paige at4:54 p.m. asking her. This was the typical communication about these matters.Respondent was not thinking about the confidentiality issue; Respondent wassimply trying to expedite the situation as all parties believed time was of theessence.

11. On June 28, 2016, Heather consulted with Respondent about a separatematter. After Respondent declined to represent Heather in the separate matter,Respondent initiated a conversation about grandchild and Laura. During theconversation, Respondent disclosed to Heather:

• she represented Laura in matters related to Laura's concern for grandchild'swell-being;

• Laura intended to file a petition for adjudication of wardship with respect tograndchild;

• Laura was entertaining the possibility of filing a grandparent visitation petition;and

• Laura was concerned about counseling for grandchild.

ANSWER:

Respondent denies the allegations contained in Paragraph 11 of Count I of theComplaint, and further answering, Respondent states she does not believe that sheinitiated the conversation with Heather. Respondent did not disclose any thing setforth in Paragraph 11 to Heather. Respondent indicated to Heather that she had aconflict of interest. Respondent did not tell Heather the rest of the allegations.However, Respondent had emails from Heather and Ms. Richardson back and forthabout that information over and over and over, so Respondent was aware therewas no confidential information involved. Respondent's recollection is thatHeather told Respondent her story and she listened. Respondent certainly did nottell Heather that Respondent intended to file a Petition for Adjudication of Wardshipand, Respondent was, in fact, leaning against doing so by that time. Respondentdid not discuss filing a grandparent visitation petition, as Respondent could nothave won one at that time and Respondent told Ms. Richardson that Respondentcould not file one.

12. At no time prior to speaking with Heather, did Respondent inform Laura thatshe intended to speak to Heather about her representation of Laura or Laura's intentionswith respect to grandchild.

ANSWER:

Respondent admits the allegations contained in Paragraph 12 of Count I of theComplaint, and further answering, states that it was not ever Respondent'sintention to speak with Heather about it.


ANSWER:

Respondent admits the allegations contained in Paragraph 13 of Count I of theComplaint, and further answering, states that Respondent did not inform her ofsame as stated above. Respondent did not disclose any confidential information.Further, the purpose for which the confidentiality was requested was because Ms.Richardson had hoped that Heather would give her visitation while she consideredthe pursuit of a Petition for Adjudication At the time of the conversation withHeather, Respondent did not believe that this was still an issue.


ANSWER:

Respondent denies disclosing the information, as stated above.

15. By reason of the conduct outlined above, Respondent has engaged in thefollowing misconduct:

a. improperly revealing information related to the representation of aclient without the informed consent of the client by revealing theinformation described in paragraphs 5, 8, and 11, above, to Ligon,Strawn and Heather in violation of Rule 1.6(a) of the Illinois Rules ofProfessional Conduct (2010);

b. failing to abide by the client's decisions concerning the objectives ofrepresentation by revealing the information described in paragraphs5, 8 and 11, above, to Ligon, Strawn and Heather, after beingspecifically instructed by Laura not to reveal any informationconcerning the representation of Laura, in violation of Rule 1.2(a) ofthe Illinois Rules of Professional Conduct (2010);

c. failing to reasonably consult with the client about the means by whichthe client's objectives are to be accomplished by revealing theinformation described in paragraphs 5, 8 and 11, above, to Ligon,Strawn and Heather, without consulting with Laura or obtaining herinformed consent, in violation of Rule 1.4(a)(2) of the Illinois Rules ofProfessional Conduct (2010);

d. failing to explain a matter to the extent reasonably necessary topermit the client to make informed decisions regarding therepresentation by not explaining to Laura the nature andconsequences of a guardian ad litem proceeding or a petition foradjudication of wardship proceeding in violation of Rule 1.4(b) of theIllinois Rule of Professional Conduct (2010); and

e. failing to promptly inform the client of any decisions of circumstanceswith respect to which the client's informed consent is required byconduct including the failure to obtain Laura's informed consentbefore meeting with and making disclosures to Heather about herrepresentation of Laura and Laura's objectives in violation of Rule1.4(a)(1) of the Illinois Rules of Professional Conduct (2010).

ANSWER:

Respondent denies the allegations contained in Paragraph 15 (a) through (e) ofParagraph 15 of Count I of the Complaint.

COUNT II

(False and improper billing and failure to return unearned fees)

16. The Administrator realleges and incorporates paragraphs 1 through 14 ofCount I, above.

ANSWER:

Respondent realleges and incorporates his answers to Paragraphs 1 through 20 ofCount I above.

17. At the end of July 2016, Laura called Respondent's office and requestedthat Respondent send her an itemized statement of the services rendered.

ANSWER:

Respondent admits the allegations contained in Paragraph 17 of Count II of theComplaint.

18. On August 2, 2016, Respondent mailed a statement of services to Laura whichcontained the following entries:

Laura

(address iredacted)Richardson August 2, 2016

File #3335/001

DATE DESCRIPTION HOURS AMOUNT

05/26/16 Consultation with Client 0.50 $25.00

05/26/16 Overage onConsultation

1.00 $200.00

06/02/16 Conference with Client 0.50 $100.00


06/29/16 Conference with Client, 1.70 $340.00and Review letter from

Family Foundation (sic)

Totals 4.70 $865.00

Disbursements & Fees

05/26/16 Consultation Fee $25.00

05/26/16 Retainer Fee $2,000.00

Unallocated General Retainer: $1,160.00

ANSWER:

Respondent denies that she mailed a statement of services as set forth inParagraph 18 and further answering, states that Ms. Richardson came into theoffice. Respondent's secretary allowed Ms. Richardson to see the incomplete billwithout the knowledge, consent, or permission of Respondent. This secretary nolonger works for Respondent and quit months later. Respondent does not recallwhat date Ms. Richardson reviewed the incomplete bill.

19. The statement of services described in paragraph 18, above, was falsebecause Respondent did not meet or speak with Laura on June 2, 2016, and Respondentdid not review the letter from Family Foundation (sic) with Laura on June 29, 2016, or atany time thereafter.

ANSWER:

Respondent admits that she did not meet or speak with Ms. Richardson on June 2,2016. Rather, on that date, further answering, Respondent conferenced with SonyaLigon. Respondent admits that she did not review the letter from FamilyFoundation (sic) with Ms. Richardson on June 29, 2016, or at any time thereafter.Further answering, Respondent did personally review the letter. Respondentdenies the Statement of Services was false and further answering states theStatement of Services was never mailed to Ms. Richardson.

20. Respondent knew that the statement of services described in paragraph 18,above, was false at the time she sent it to Laura.

ANSWER:

Respondent denies the allegation contained in Paragraph 20 of Count II of theComplaint, and further answering, states that Respondent never sent it to her, norauthorized it to be sent. When Respondent saw it, she noticed the inaccuraciesand corrected them.

21. On August 29, 2016, Laura spoke to an employee at Respondent's lawoffice. Laura indicated that she was terminating Respondent's services and Laurarequested the return of her unused retainer.

ANSWER:

Respondent admits the allegations contained in Paragraph 21 of Count II of theComplaint, and further answering, states that it was clear at the last meeting inJune that Respondent was no longer going to represent her in that proceeding.

22. At no time before Friday, October 21, 2016, did Respondent return anyportion of the unearned retainer.

ANSWER:


23. Between September 1, 2016 and October 21, 2016, Laura calledRespondent's office on at least eight occasions and spoke to support staff to inquire aboutthe return of her unearned retainer.

ANSWER:

Respondent neither admits nor denies the allegations contained in Paragraph 23of Count II of the Complaint due to lack of knowledge.

24. On October 24, 2016, Laura received a check from Respondent in theamount of $560 and a statement of services that contained the following entries:

Laura

(address redacted)Richardson October 20, 2(

File #3335/00'

)16

I

DATE DESCRIPTION HOURS AMOUN

05/26/16 Consultation with Client 0.50 $25.00

05/26/16 Overage onConsultation

1.00 $200.00

06/02/16 Conference with Client,Review Notes with

Client

2.50 $500.00


06/28/16 Consultation with 1.00 $200.00

Heather Richardson

06/29/16 Conference with Client, 1.70 $340.00and Review letter from

Family Foundation (sic)

Totals 7.70 $1,465.00

Disbursements & Fees

05/26/16 Consultation Fee $25.00

05/26/16 Retainer Fee $2,000.00

Unallocated General Retainer: $560.00

ANSWER:


25. The statement of services described in paragraph 24, above, was falsebecause Respondent did not meet with, speak, to or review notes with Laura on June 2,2016, and Respondent did not review the letter from Family Foundation (sic) with Lauraon June 29, 2016, or at any time thereafter.

ANSWER:

Respondent denies the allegation contained in Paragraph 25 of Count II of theComplaint for the reasons stated in the answer to Paragraph 19, and furtheranswering, states that her Statement of Services does not state that she reviewedthe letter from the Family Foundation with Ms. Richardson.

26. Respondent knew the statement of services described in paragraph 24,above, was false at the time she mailed it to Laura.

ANSWER:

Respondent denies the allegations contained in Paragraph 26 of Count II of theComplaint.

27. The statement of services dated October 20, 2016 was also false andimproper because Respondent added two hours of purported work to the entry dated

10

June 2, 2016, as compared to the August 2, 2016 statement of services, even thoughRespondent did not speak with or meet Laura on June 2, 2016.

ANSWER:

Respondent denies the allegations as alleged in Paragraph 27 of Count II of theComplaint.

28. Respondent also improperly billed Laura for a one-hour consultation withHeather, even though Laura specifically instructed Respondent not to disclose anyinformation to Heather and Respondent did not obtain Laura's authorization or informedconsent to consult with Heather.

ANSWER:

Respondent denies the allegation contained in Paragraph 28 of Count II of theComplaint, and further answering, states that Respondent did not consult withHeather. Respondent should have used better verbiage in her statement, but thefact remains that Respondent did meet with Heather. At that time, Respondentmerely listened to what Heather had to say. Respondent disclosed no confidentialinformation. Respondent informed Ms. Richardson of every single word said byHeather that Respondent could recall as soon as Respondent met with herafterwards.


a. failure to promptly pay or deliver funds to the client which the clientis entitled to receive by conduct including not sending Laura theunearned portion of her retainer to her until October 20, 2016, andby not remitting all of the unearned funds Laura was entitled toreceive including $500 for a conference purportedly on June 2, 2016with Laura that did not occur, and $200 for a conference with Heatherthat was not authorized, in violation of Rule 1.15(d) of the IllinoisRules of Professional Conduct (2010);

b. failure to refund payment of a fee that has not been earned upontermination, by conduct including the failure to refund $500 for aconference with Laura purportedly on June 2, 2016 which did notoccur, in violation of Rule 1.16(d) of the Illinois Rules of ProfessionalConduct (2010); and

c. conduct involving dishonesty, fraud, deceit, or misrepresentation byknowingly billing Laura for a conference purportedly on June 2, 2016that did not occur and by knowingly changing the October 20, 2016bill to add work and hours which Respondent knew didn't occur, in

li

ANSWER:

violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct(2010).

Respondent denies the allegations contained in Paragraph 29 (a) through (c) ofCount II of the Complaint.

COUNT III

(Failure to reasonably communicate with a client)

30. The Administrator realleges and incorporates paragraphs 1-14 and 16-28of Counts I and II, above.

ANSWER:

Respondent realleges and incorporates her answers to Paragraphs 1-14 and 16-28of Counts I and II above.

31. Respondent met with Laura on three occasions, May 26, 2016, June 10,2016, and June 29, 2016. At no time during the meetings, or at any other time, didRespondent inform Laura that she intended to file a petition for adjudication of wardshipnor did Respondent explain or describe to Laura the nature of a petition for adjudicationof wardship.

ANSWER:

Respondent denies the allegations contained in Paragraph 31 of Count III of theComplaint.

32. Between May 26, 2016 and October 24, 2016, Laura called Respondent'soffice on at least 10 occasions. Laura never spoke to Respondent although she did, onsome occasions, leave messages for Respondent to return her calls.

ANSWER:

Respondent admits the allegations contained in Paragraph 32 of Count III of theComplaint, and further answering, states the clients are typically told thatRespondent practices in a thirteen-county area, that Respondent's secretaries willcommunicate with Respondent while she is not available to them for which theywill not be charged and that if they need to speak to Respondent, they can have anappointment. Respondent vaguely recalls Ms. Richardson being a client that calledincessantly and was told to make a list and Respondent would meet with her abouther concerns.

12

33. At no time did Respondent return Laura's calls nor did Respondent speakwith Laura by telephone at any time during the representation.

ANSWER:

Respondent admits the allegations contained in Paragraph 33 of Count III of theComplaint.

34. In her response to Laura's request for investigation filed with the ARDC,Respondent claimed that Laura's blindness made it difficult to communicate with Lauraby telephone:

"Itwas difficult enough to communicate with her in person, as she was argumentative andseemed to have difficulty comprehending what I was saying. She is blind, although shefunctions well with her disability. However, since she cannot see, I believe that it is difficultfor her to comprehend what I tell her very well and I found myself having to repeat thingsover and over. As such, I did not want to have telephone calls with her and preferred tocommunicate with her in person."

ANSWER:

Respondent admits the allegations contained in Paragraph 34 of Count III of theComplaint and further answering, state she believed that it was easier tocommunicate with her in person and Ms. Richardson always came when anappointment was scheduled. If Ms. Richardson wanted more appointments, shecould have asked for them. Respondent's reference to Ms. Richardson being blindmerely related to the fact that Respondent cannot read body language over thephone.


a. failure to explain a matter to the extent reasonably necessary topermit the client to make informed decisions concerning therepresentation by conduct including failing to inform Laura about thenature of a petition for adjudication of wardship and that Respondentintended to file such a petition on Laura's behalf in violation of Rule1.4(b) of the Illinois Rules of Professional Conduct (2010); and

b. failure to promptly comply with reasonable requests for informationby conduct including not returning Laura's phone messages inviolation of Rule 1.4(a)(3) of the Illinois Rules of ProfessionalConduct (2010).

13

ANSWER:

Respondent denies the allegations contained in Paragraph 35 (a and (b) of CountIII of the Complaint.

COUNT IV

(False statement to ARDC)

36. The Administrator realleges and incorporates paragraphs 1-14, 16-28 and31-34 of Counts I, II, and III above.

ANSWER:

Respondent realleges and incorporates her answers to Paragraphs 1-14 and 16-28and 17-35 of Counts I and II and III above.

37. On January 3, 2018, Respondent appeared for a sworn statement at theAdministrator's Springfield office. Respondent was sworn to tell the truth at thebeginning of the statement.

ANSWER:

Respondent admits the allegations contained in Paragraph 37 of Count IV of theComplaint.

38. During the sworn statement, Respondent was shown a statement ofservices drawn on her letterhead, dated August 2, 2016 and addressed to LauraRichardson ("statement of services"). The statement of services is described in paragraph18 above. Respondent indicated that the statement of services:

"...was not sent to Laura in the mail. It was not approved byme. It was given to her by my former secretary when she[Laura] came into the office. It was not approved by me."

ANSWER:

Respondent admits the allegations contained in Paragraph 38 of Count IV of theComplaint.

39. Respondent's statement described in paragraph 38, above, was falsebecause Laura received the statement of services in the mail on or about August 3, 2016and Laura did not receive a bill from Respondent's secretary in August 2016.

14

ANSWER:

Respondent denies the allegations contained in Paragraph 39 of Count IV of theComplaint and further answering states that Respondent was as candid as shecould be in the sworn statement. She testified to the best of her knowledge. Herpractice is that when she sends out a statement in which money is owed to a client,a check is included with the bill. When Respondent gave her sworn statement, shewas not aware that the statement had been mailed out or is without sufficient

information to know what Laura did or did not receive.

40. Respondent knew that her statement under oath described in paragraph38, above, was false at the time she made it.

ANSWER:

Respondent denies the allegations contained in Paragraph 40 of Count IV of theComplaint.

41. By reason of conduct described above, Respondent has engaged in thefollowing misconduct:

a. conduct involving dishonesty, fraud, deceit or misrepresentation by conductincluding making the false statement described in paragraph 38, above, inviolation of Rule 8.4(c) of the Illinois Rules of Professional Conduct(2010);and

b. making a false statement of material fact in a disciplinary matter by conductincluding making the false statement described in paragraph 38, above, inviolation of Rule 8.1(a) of the Illinois Rules of Professional Conduct(2010).

ANSWER:

Respondent denies the allegations contained in Paragraph 41 (a) and (b) of CountIV of the Complaint.

COUNT V

(Failure to act with reasonable diligence and lack of communication -Jennifer Borton)

42. On or about March 1, 2016, Jennifer Borton ("Borton") and Respondentagreed that Respondent would represent Borton in a pending divorce case. The case hadbeen filed by Borton's husband on December 17, 2015 in Wayne County, Illinois. Thecase was docketed as Borton v. Borton, case number 2015D80. Borton paid Respondenta $2,000 retainer fee.

15

ANSWER:

Respondent admits the allegations contained in Paragraph 42 of Count V of theComplaint.

43. At no time did Respondent file an appearance in case number 2015D80,nor did Respondent pay the $115 entry of appearance fee.

ANSWER:

Respondent admits the allegations contained in Paragraph 43 of Count V of theComplaint, but further states that, in local practice, a responsive pleading is alsoconsidered to be an appearance and the fee is usually paid with a responsivepleading. In this case, Borton had been representing herself pro se prior to hiringMs. Powell and filed documents in the case, so, Ms. Powell believed the fee issue(paid or waived) had been taken care of as is customary. Ms. Powell does notrecall ever being asked for a fee by the Circuit Clerk and, had it been requested,which is also customary, it would have been paid.

44. On March 23, 2016, the court in case number 2015D80 set a casemanagement conference for May 11, 2016 at 9:30 a.m.

ANSWER:


45. At no time did Respondent appear for the case management conference onMay 11, 2016. Attorney Penelope Westwater ("Westwater") appeared for Borton'shusband. At no time did Respondent inform Borton about the May 11, 2016 casemanagement conference.

ANSWER:

Respondent admits the allegations contained in Paragraph 45 of Count V of theComplaint, but further states that Westwater appeared at a Case ManagementConference to inform the court of the status of mediation, which was that therehad been a partial agreement relating to holidays and parenting responsibilities.Respondent did not believe that it was necessary for her to appear.

46. On July 6, 2016, the court in case number 2015D80 set a status hearingfor August 10, 2016 at 9:30 a.m.

16

ANSWER:

Respondent admits the allegation contained in Paragraph 46 of Count V of theComplaint.

47. On August 9, 2016, Respondent faxed a document entitled "Motion toContinue" to Westwater in which she represented that she was counsel for Borton andthat she "has previously been scheduled to be in court in another county at the same dateand time." The Wayne County Circuit Clerk received the motion to continue on August12, 2016 and filed it that day.

ANSWER:

Respondent admits that she sent a Motion to Continue to Westwater as alleged inParagraph 47 of Count V of the Complaint, but further states that the Motion toContinue was also faxed to the Circuit Court on August 9, 2016. However, theCircuit Clerk does not actually file faxes (they are shown to the Judge typically), sothe actual filing was on the original document that was sent in the mail.

48. At no time did Respondent advise Borton of the August 10, 2016 hearing orthat she filed a motion to continue the hearing.

ANSWER:

Respondent denies the allegations contained in Paragraph 48 of Count V of theComplaint.

49. On August 10, 2016, Westwater appeared for the status hearing in casenumber 2015D80 and the court set a further status conference for October 12, 2016.

ANSWER:


50. At no time did Respondent inform Borton of the October 12, 2016 statusconference in case number 2015D80.

ANSWER:


51. On or about August 17, 2016, Westwater filed the following pleadings: Requestfor Production of Documents; Interrogatories; and Interrogatories Relative to Custody in

17

case number 2015D80. Westwater served Respondent with copies of all three pleadingson or about August 17, 2016.

ANSWER:

Respondent admits the allegations contained in Paragraph 51 of Count V of theComplaint, and further states that Respondent propounded a Request forProduction of Documents; Interrogatories and Interrogatories Relative to Custodyin said case as well on or about August 26, 2016.

52. At no time did Respondent respond to the three pleadings described inparagraph 51, above. At no time did Respondent discuss with Borton any of the pleadingsdescribed in paragraph 51, above.

ANSWER:

Respondent admits the allegations contained in Paragraph 52 of Count V of theComplaint, and further states that the documents listed above in Paragraph 51 weresent to Borton.

53. At no time did Respondent file a list of witnesses in case number 2015D80.

ANSWER:


54. On or about October 17, 2016, Respondent filed a motion to continue thestatus conference scheduled for October 27, 2016 in case number 2015D80. At no timedid Respondent inform Borton of the October 27, 2016 status conference or that she hadmoved to continue the status conference.

ANSWER:

Respondent admits the allegation contained in the first sentence of Paragraph 54of Count V of the Complaint. Respondent denies the allegation contained in thesecond sentence of Paragraph 54 of Count V of the Complaint.

55. On September 18, 2017, the court scheduled a case managementconference in case number 2015D80 for October 23, 2017 and a bench trial for November27, 2017.

ANSWER:


18

56. On November 17, 2017, Westwater filed a motion in limine requesting thatBorton be barred from presenting witnesses or documents at the bench trial due toRespondent's willful failure to comply with the discovery rules and the discovery requestsdescribed in paragraph 51, above. The hearing on the motion in limine was scheduled forNovember 27, 2017.

ANSWER:


57. At no time did Respondent inform Borton of the motion in limine describedin paragraph 56, above, or the scheduled hearing on November 27, 2017.

ANSWER:

Respondent admits the allegation contained in Paragraph 57 of Count V of theComplaint, and further answering, states that this is an "efiling" issue.Respondent's office received the efiling of the pleading, however, her office wasnot yet accustomed to the efiling system, and, as a result, the document was notsent to Borton.

58. On November 20, 2017, Respondent filed a motion to continue theNovember 27, 2017 hearing on the motion in limine. In Respondent's motion sherepresented:

1. Attorney Powell has been ill and has not worked much for the past several weeks.

2. As such, Attorney Powell has been unable to complete discovery in the mannershe previously expected and has not been able to prepare for trial.

3. As a result, Attorney Powell requests a continuance for this hearing.

ANSWER:


59. At no time did Respondent inform Borton of her motion to continue filed onNovember 20, 2017, nor did Respondent inform Borton of the contents of the motion.

ANSWER:


19

60. On or about November 20,2017, Respondent served the motion to continueon an attorney in New Baden, Illinois, who had no connection to case number 2015D80and Respondent did not serve Westwater with the motion.

ANSWER:

Respondent admits the allegation contained in Paragraph 60 of Count V of theComplaint, however Respondent states that Westwater was sent an email onNovember 17, 2017, requesting a continuance of the trial date, so she was aware ofsame.

61. On or about December 29, 2017, Respondent filed a motion to withdraw incase number 2015D80 stating "matters which are protected by the attorney-clientprivilege, lack of communication and due to her inability to pay attorney fees." At no timedid Respondent forward a copy of the motion to withdraw to Borton.

ANSWER:

Respondent admits the allegations in the first sentence of Paragraph 61 of CountV of the Complaint, and denies the allegations contained in the second sentenceof Paragraph 61 of Count V of the Complaint.

62. At no time did Respondent inform Borton that the motion to withdraw wasscheduled for a hearing on January 8, 2018.

ANSWER:

Respondent denies the allegations contained in Paragraph 62 of Count V of theComplaint.

63. On January 8, 2018, a hearing was held on Respondent's motion towithdraw. Westwater was present but neither Respondent nor Borton attended thehearing. The court allowed Respondent's motion to withdraw over Westwater's objection.

ANSWER:


64. At no time did Respondent forward to Borton the court's order allowing herto withdraw from case number 2015D80.

ANSWER:

Respondent admits the allegations contained in Paragraph 64 of Count V of theComplaint, and further states that the Notice of Motion for Leaveto Withdraw stated

20

as follows: "You are hereby notified that if the Court grants this Motion, you mustretain other counsel or file your own supplemental appearance with the Clerk ofthe Circuit court within twenty-one (21) days after the entry of an order allowing meto withdraw. Such written appearances shall give your name and completeaddress."

65. On February 14, 2018, the court in case number 2015D80 scheduled abench trial for April 4, 2018.

ANSWER:


66. On April 4, 2018, Westwater and Borton, acting pro se, appeared for thebench trial in case number 2015D80. The court granted the motion in limine described inparagraph 56, above. After the trial, the court granted the dissolution petition and foundin favor of Borton's husband on the custody issue awarding the majority of parenting timeto Borton's husband. Borton was awarded visitation on alternating weekends and eachWednesday from 3:00 p.m. to 7:00 p.m.

ANSWER:


67. On May 10, 2018, Borton, through new counsel David M. Williams, filed amotion to vacate the judgment in case number 2015D80 due to Respondent's conduct inthe case.

ANSWER:

Respondent admits the allegation contained in Paragraph 67 of Count V of theComplaint, and further answering, states that Respondent advised Williams thatshe was willing to assist him in any way to facilitate the interests of Borton.


a. failing to act with reasonable diligence and promptness in representing aclient by conduct including failure to properly enter an appearance in casenumber 2015D80; failing to respond to the request for production ofdocuments and interrogatories; and failing to appear at scheduled statusconferences and hearings in case number 2015D80, in violation of Rule 1.3of the Illinois Rules of Professional Conduct(2010);

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b. failure to promptly inform the client of any decisions or circumstances withrespect to which the client's informed consent is required by conductincluding failing to inform Borton about the discovery requests filed andserved by opposing counsel and the motion in limine; failing to notify Bortonabout scheduled hearings and the hearing on the motion to withdraw; failingto inform Borton about the motions to continue Respondent filed; and failingto appear for scheduled status conferences and hearings, in violation of Rule1.4(a)(1) of the Illinois Rules of Professional Conduct(2010);

c. failing to reasonably consult with the client about the means by which theclient's objectives are to be accomplished by conduct including failing toinform Borton about the discovery requests filed and served by opposingcounsel and the motion in limine; failing to notify Borton about scheduledhearings and the hearing on the motion to withdraw; failing to inform Bortonabout the motions to continue Respondent filed; and failing to appear forscheduled status conferences and hearings, in violation of Rule 1.4(a)(2) ofthe Illinois Rules of Professional Conduct (2010);

d. failing to explain a matter to the extent reasonably necessary to permit theclient to make informed decisions regarding the representation by conductincluding: failing to inform Borton about the discovery requests filed andserved by opposing counsel and the motion in limine; failing to notifyBorton about scheduled hearings and the hearing on the motion towithdraw; failing to inform Borton about the motions to continueRespondent filed; and failing to appear for scheduled status conferencesand hearings, in violation of Rule 1.4(a)(3) of the Illinois Rules ofProfessional Conduct (2010); and

e. failing to explain a matter to the extent reasonably necessary to permit theclient to make informed decisions regarding the representation by conductincluding failing to inform Borton about the discovery requests filed andserved by opposing counsel and the motion in limine; failing to notifyBorton about scheduled hearings and the hearing on the motion towithdraw; failing to inform Borton about the motions to continueRespondent filed; and failing to appear for scheduled status conferencesand hearings, in violation of Rule 1.4(b) of the Illinois Rules of ProfessionalConduct (2010).

ANSWER:

Respondent denies the allegations contained in Paragraph 68 (a) through (e) ofCount V of the Complaint.

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COUNT VI

(False statements to Jennifer Borton)

69. The Administrator realleges and incorporates paragraphs 42 through 67 inCount V, above.

ANSWER:

Respondent realleges and incorporates her answers to Paragraphs 42 through 67in Count V above.

70. On or about June 2017, Borton spoke to Respondent by telephone becauseBorton was concerned about the delay in resolving case number 2015D80. During theconversation, Respondent represented to Borton that her husband's lawyer, Westwater,had requested and received a number of continuances for scheduled hearings in thecase.

ANSWER:

Respondent neither admits nor denies the allegations contained in Paragraph 70of Count VI of the Complaint as she has no recollection of such a telephone call orof making such a representation.

71. Respondent's representation to Borton described in paragraph 70, above,was false because Westwater had not requested any continuances in case number2015D80 before June 2017, and Respondent had requested continuances on August 9,2016 and October 17, 2016.

ANSWER:

Respondent neither admits nor denies the allegations contained in Paragraph 71of Count VI of the Complaint as she has no recollection of such a telephone callas set forth in Paragraph 70, or of making such a representation.

72. Respondent knew her representation to Borton described in paragraph 70,above, was false at the time she made it.

ANSWER:

Respondent neither admits nor denies the allegations contained in Paragraph 72of Count VI of the Complaint as she has no recollection of such a telephone call orof making such a representation. Further answering, Respondent denies that shewould intentionally make a false representation.


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a. conduct involving dishonesty, fraud, deceit, or misrepresentation byconduct including making the false statement to Borton described inparagraph 70, above, in violation of Rule 8.4(c) of the Illinois Rules ofProfessional Conduct(2010).

ANSWER:

Respondent denies the allegations contained in Paragraph 73 (a) of Count VI of theComplaint.

COUNT VII

(Lack of diligence - Mount adoption)

74. On or about March 6, 2017, Respondent and Jeffrey and Annie Mount("Mounts") agreed that Respondent would represent the Mounts in an adoption of two oftheir foster children.

ANSWER:

Respondent admits the allegations contained in Paragraph 74 of Count VII of theComplaint.

75. On or about March 6, 2017, Respondent agreed to prepare documents forthe adoption and to meet with the Mounts on March 20, 2017. Respondent laterrescheduled the March 20, 2017 meeting to March 22, 2017.

ANSWER:


76. On March 22, 2017, the Mounts went to Respondent's office to meet withher but she was not present. Respondent's secretary presented documents for theMounts to sign.

ANSWER:


77. On January 17, 2018, DCFS approved the adoption.

ANSWER:

Respondent admits the allegation contained in Paragraph 77 of Count VII of theComplaint.

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78. Respondent scheduled the adoption hearing for March 6, 2018 at 9:30 a.m.in Marion County, Illinois. The case was docketed as case number 2018AD3.

ANSWER:

Respondent denies the allegation that her office scheduled the adoption hearingas alleged in the first sentence of Paragraph 78 of Count VII of the Complaint.Respondent admits the allegations in the second sentence of Paragraph 78 ofCount VII of the Complaint.

79. On March 6, 2018, Respondent failed to appear for the adoption in casenumber 2018AD3. Respondent did not file a motion to continue the adoption, nor did shenotify the court that she would not appear.

ANSWER:

Respondent admits the allegations contained in Paragraph 79 of Count VII of theComplaint, and further states that she informed her secretary to call the court bytext message, as Respondent was sick. Unfortunately, the secretary did not callthe court, so no one was aware that Respondent was not going to appear.

80. On March 6, 2018, the following parties were present for the adoptionhearing in case number 2018AD3: the Mounts, Lead Foster Care Manager at CARITASFamily Solutions Selena Owens ("Owens"), the Guardian Ad Litem, attorney MarshaHoltzhauer ("Holtzhauer") and attorney Jessica Hudspeth ("Hudspeth"), who was in thecourtroom on another matter. The Mounts had also invited family and friends to be presentfor the adoption.

ANSWER:

Respondent neither admits nor denies the allegations contained in Paragraph 80of Count VII of the Complaint, due to insufficient knowledge.

81. On March 6, 2018, Owens, Holtzhauer and/or Hudspeth attempted to calland text message Respondent to determine her whereabouts, but they did not receiveany response from Respondent.

ANSWER:

Respondent admits the allegation contained in Paragraph 81 of Count VII of theComplaint, which Respondent found out later after she woke up as she was sickand sleeping.

82. Because the Mounts were very upset by Respondent's failure to appear,Hudspeth agreed, with the court's approval, to enter her appearance for the Mounts and

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complete the adoption hearing. Hudspeth also met with the Mounts the following day tocomplete the certificates of adoption.

ANSWER:

Respondent neither admits nor denies she was not present as alleged in Paragraph82 of Count VII of the Complaint, due to insufficient knowledge. Further answering,Respondent was later advised by Hudspeth that she completed the adoptionhearing.

83. By reason of the conduct described above, Respondent has engaged inthe following misconduct:

a. failing to act with reasonable diligence and promptness by conductincluding failing to appear at the adoption hearing on March 6, 2018, incase number 2018AD3; failing to notify the court, her clients or the otherparticipants that she did not intend to appear on March 6, 2018 in casenumber 2018AD3; and by failing to appear for a scheduled meeting withthe Mounts on March 22, 2017, in violation of Rule 1.3 of the IllinoisRules of Professional Conduct (2010).

ANSWER:

Respondent denies the allegations contained in Paragraph 83 (a) of Count VII ofthe Complaint.

WHEREFORE, the Respondent requests that the Amended Complaint bedismissed.

RespectfuJJy^ubflri itte^

SAMUEL J. MANELLA

SAMUEL J. MANELLAATTORNEY FOR RESPONDENT77 WEST WASHINGTON STREET

SUITE 705

CHICAGO, ILLINOIS 60602(708) [email protected]

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