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]
The evidentiary hearing further established beyond any doubt that Horwitz fully understood the significance of the Google evidence well before September 7 and 23. Specifically, Plaintiff testified Horwitz angrily confronted him during a “heated” August conversation with the fact that the Google evidence made it appear Plaintiff posted the documents. (Tr. 294-95, 319, 334-36, 429-30.) Horwitz further testified that after reviewing the Google evidence, he grilled Plaintiff about the fact “it looks like the IP address is hooked into your home.” (Id. at 699-701.)
He also testified he asked Mrs. Seipler if she knew what happened, and she responded “I’ll go and testify. I don’t care. I’ll tell the judge anything.” (Id. at 703-04.)
After these discussions, Horwitz testified he “suspected” or “imagined” Mrs. Seipler had “something to do with” the creation of Real MCSO and had a “strong feeling” it was created from the Seiplers’ computer. (Id. At 716-17, 723-24.) [FN7]
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FN7 Horwitz testified he believed Eileen, the Seiplers’ babysitter, or Scott Milliman could have also been responsible for Real MCSO (see Tr. 716-17, 746-48), but his account that they had strong anti-Nygren feelings did not explain why he suspected they secretly accessed Plaintiff’s computer and created a blog. Horwitz testified he never asked Eileen since “his responsibility was to Zane.” (Id. at 721.)
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Horwitz essentially contends while this was enough for him to “suspect” Mrs. Seipler, he still had plausible deniability when addressing the Court in his September 7 pleading and at the September 23 hearing.
In support, Plaintiff testified that after Mrs. Seipler disclosed her role to him, he simply told Horwitz “we gotta get my wife an attorney,” and Horwitz told him not to say anymore. (Id. at 345-48, 643.)
Plaintiff explained he knew not to tell Horwitz anything further because, if he did, “as an officer of the court, you (Horwitz) were going to have to go and do your job.” (Id. at 443-44.)
In a surprising exchange with Horwitz, Plaintiff confirmed he understood Horwitz knew 3 adults were in the home (Eileen being the third), Plaintiff told Horwitz he was not the responsible party, and Plaintiff believed Horwitz had “the ability to reason and draw inferential reasoning.” (Id. at 444-45.)
And, Mrs. Seipler emphasized incredulously that, when Horwitz asked her “in a roundabout way” if she knew “who did this,” she responded “I’m not going to tell you whether I did this or not.” (Id. at 1495.)
Horwitz confirmed that when he asked Mrs. Seipler if she knew what happened, she was recalcitrant, at which point he suggested she obtain a lawyer. (Id. at 703-05.)
But, Horwitz later testified it was Mrs. Seipler who wanted a lawyer (id. at 734), all of which flatly contradicted Mrs. Seipler’s testimony that when she first revealed her conduct to Plaintiff, she thought it was no big deal and told her husband to disclose it. (Id. at 1668-69.)
Horwitz backed up his plausible deniability defense with a contention that legal ethics and conflicts prevented him from disclosing Mrs. Seipler’s information and required him to direct Mrs. Seipler to retain counsel to protect her from the Sotos Law Firm.
Horwitz further elicited testimony from John Nelson that some vague, unidentified conflict prohibited him from disclosing information he had obtained from Mrs. Seipler. (Id. At 848-51.) FN8]
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FN8 Interestingly, Horwitz did not think that a conflict prevented him from representing Mrs. Seipler at her August 2010 deposition (see Tr. 736-38; see also Dep. of Rosalinda Seipler, 1/20/12 (hereinafter “R.S. Dep.”) at 23), nor did it prevent him from filing a brief in support of her assertion of a 5th Amendment privilege after she was already represented by Nelson. (Tr. 880-82; Dkt. 114.) 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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Part 7 tomorrow.