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Skolnick v. Altheimer & Gray

3/23/2000

Agenda 18-November 1999.


JUSTICE McMORROW delivered the opinion of the court:


After plaintiffs Kenneth and Julia Skolnick filed a multicount complaint in the circuit court of Cook County against defendants Terry Robin Horwitz Kass and Altheimer & Gray, the trial court entered an agreed protective order that forbade dissemination of designated materials produced during discovery. Subsequently, Kass sought modification of the protective order and leave to file a counterclaim against the plaintiffs. Kass alleged that documents produced as discoverable materials revealed fraudulent conduct by Kenneth Skolnick. Kass argued that the newly revealed information triggered her ethical obligation to report suspected attorney misconduct to the Illinois Attorney and Registration Disciplinary Commission (ARDC), and therefore, that the information should no longer be subject to the restrictions of the protective order. Kass asserted as well that these same documents gave rise to the allegations of her counterclaim.


The trial court granted leave to file the counterclaim, but simultaneously ordered that the counterclaim remain under seal. The court also refused to modify the protective order. The appellate court affirmed the trial court's order placing the counterclaim under seal, and reversed that part of the order refusing to modify the protective order. 303 Ill. App. 3d 27. In this consolidated appeal, which is before the court pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315), we affirm in part and reverse in part.


BACKGROUND


In 1993, plaintiff Kenneth Skolnick (Skolnick), a lawyer, was employed by the defendant law firm of Altheimer & Gray (Altheimer) as an equity partner. Defendant Terry Robin Horwitz Kass (Kass), also a lawyer, was employed by Altheimer as an associate. In June 1993, Altheimer and Kass sent separate letters to the ARDC. The ARDC is an agency of this court which, inter alia, receives, investigates and prosecutes allegations of professional misconduct by attorneys licensed to practice in Illinois. 134 Ill. 2d R. 751 et seq. In their respective letters, Kass and Altheimer stated that the firm had inadvertently filed a forged document with the circuit court of Cook County and that an unknown person in the firm, possibly a lawyer, had created the bogus document. Neither letter asserted directly that Skolnick was responsible for the purported forgery, but each letter identified Skolnick as an individual who had been questioned concerning the creation of the forged document.


The Administrator of the ARDC filed a complaint against Skolnick, and charged him with several breaches of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.1 et seq.). The Administrator alleged that Skolnick had, among other things, caused a forged document to be filed with the circuit court and had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; engaged in conduct prejudicial to the administration of justice; and in the course of representing a client, knowingly made a misstatement of material fact to a third party. 134 Ill. 2d Rs. 4.1(a), 8.4(a)(4), (a)(5). The ARDC conducted an investigation regarding the allegations contained in the ARDC complaint, but later dismissed the action for lack of evidence.


On May 17, 1995, Skolnick and his wife, Julia Skolnick (collectively, plaintiffs), filed a nine-count complaint against Altheimer and Kass. Plaintiffs alleged that Kass and Altheimer accused Kenneth Skolnick of creating the forged document, and that defendants repeated these accusations to others within the firm, and to clients of the firm, even though Altheimer and Kass knew these accusations to be

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