III. Clear and Convincing Proof Horwitz Affirmatively Misled the Court on September 7 and 23, 2011 as to the Creation of Real MCSO (Nos. 11-16) [continued]

Despite Horwitz’ effort to split hairs as to the quality of his knowledge and the presence of ethical constraints, there can be no real dispute that Horwitz violated his duty of candor to the Court in arguing on September 7 that Defendants’ motion should be denied based on Plaintiff’s affidavit, and in falsely answering the Court’s inquiry on September 23.

In that regard, Horwitz’ effort to analogize his role to a criminal defense lawyer fell flat.

In this civil case, in which the Court was attempting to get to the bottom of a violation of one of its orders, counsel were duty bound to candidly and fully respond to the Court’s inquiries and not mislead or misdirect the Court. See Cleveland Hair Clinic, Inc. v. Puig, 200 F.3d 1063, 1067 (7th Cir. 2000).

The fact that the discovery violation morphed into perjury with the submission of Plaintiff’s affidavit did not free Horwitz of his obligations in order to don his criminal defense lawyer hat.

Indeed, Horwitz’ attempt to excuse his misconduct with vague assertions of privileges, attorney-client confidences, and conflicts, was sophistry. [FN9]

To grasp just how vague those assertions were, the Court need only review Horwitz’ convoluted response to the Court’s request that he identify the conflict he was relying upon. (Tr. 912-18.)

Despite Horwitz’ contention that his duty was to protect Plaintiff (id. at 748), counsel’s duty to protect his client’s, let alone his client’s spouse’s, confidences did not trump his duty to be honest with the court. See Cleveland Hair Clinic, 200 F.3d at 1067.

Indeed, the comment to Rule 3.3 of the Northern District of Illinois Rules of Professional Conduct states a lawyer’s task of maintaining client confidence “is qualified by the advocate’s duty of candor to the tribunal.” Id. Additionally, counsel have a continuing duty to inform the Court of any development which may conceivably affect the outcome of litigation. Id.

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FN9 Plaintiff also testified he had no duty to come forward with this information. (Tr. 454.)

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In that regard, the Seventh Circuit has distinguished between zealous advocacy and misconduct.

“It is one  thing for a lawyer to advocate an unreasonable position to a court; usually the court can prevent any serious harm to anyone just by rejecting the position. It is another thing for a lawyer to defeat an opposing party’s claims by misleading the court, whether by a misrepresentation or by a pregnant omission. That is misconduct.” In re Lightfoot, 217 F.3d 914, 917 (7th Cir. 2000); see also Webb v. CBS Broad., No. 08 C 6241, 2011 WL 1743338, at *13 (N.D. Ill. May 6, 2011) (“Whether [] counsel’s misleading statements [] are characterized as falsehoods or half-truths is not material. ‘A half truth can be just as misleading, sometimes more misleading, than an absolutely false representation.”); see also United States v. Shaffer Equip.,11 F.3d 450, 457-58 (4th Cir. 1993) (“The system can provide no safe harbor for clever devices to divert the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end.”); Footman v. Cheung, 341 F. Supp. 2d 1218, 1228 (M.D. Fla. 2004) (finding counsel violated Rule 11 and § 1927, despite excuses, such as scrivener’s errors, typographical errors, mistakes in application of law, inexperience in ADA cases, and confusing clients).

In order to advance the “orderly and expeditious disposition of a case,” the court is empowered to sua sponte issue sanctions against attorneys under Rule 37(b)(2), § 1927, and the court’s inherent powers. U.S. Comm. Tr. Comm’n v. L.S. Asset Mgmt., No. 07 C 3598, 2007 WL 2915647, at *9 (N.D.Ill. Oct. 4, 2007) (citing Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962)). Courts can also use their discretion to impose sanctions beyond monetary. See, e.g.,

Bautista v. Star Cruises, 696 F. Supp. 2d 1274, 1281 (S.D. Fla. 2010) (sanctioning attorney under Rule 11 by submitting opinion to Federal Supplement, referring him to disciplinary commission, and imposing monetary sanctions). This Court should sanction Horwitz for his lack of candor with and attempts to mislead the Court during the pendency of Defendants’ motion for sanctions.

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Part 8 tomorrow.