Put Up or Throw Up: Did Atty Fake Illness to Avoid Oral Arguments?

Here's a question for you: How do you prove that you were ill? In the absence of proof, how do you prove that two years after the fact?

That's what attorney Michael Finn is wondering.

Background

Michael Finn represented Kenneth Clark in the appeal of his criminal conviction for possession with intent to distribute crack cocaine. Oral arguments were scheduled for April 14, 2011, and on that date, Finn didn't show up to oral arguments.

In a letter to counsel for the Administrator of the Attorney Registration and Disciplinary Commission ("ARDC"), the ABA Journal reports that Finn explained his failure to show up:

On the evening of April 13, 2011, I went to bed with a headache and with a queasy feeling in my stomach. During the night, I had cold sweats and had difficulty sleeping. On the morning of April 14, 2011, I got out of bed sometime around 5:00 AM. I went to the bathroom and vomited. I went back to bed and got up again around 8:30 AM. Although I felt much better at this time, I thought I was not well enough to go to court. After going back and forth about it, I decided to stay home ... I simply was ill on a critical day of court for my client. In retrospect, I believe I was medically able to participate in oral arguments, but it was a close call and at the time I thought that I was too ill.

Finn did call the Clerk's Office to let the court know he would not appear. He was instructed to leave his phone on, but he did not answer his phone, claiming that he went to bed. Finn's client lost his appeal.

Seventh Circuit Opinion

The Seventh Circuit, in its Clark opinion, addressed Finn's lack of conduct. The court stated that "despite numerous opportunities, [Finn] has failed to offer any explanation -- or even drop a hint -- as to why he abandoned Clark at that critical moment."

Because he failed to appear at oral arguments, and because he failed to attach a copy of the district court's ruling with the appellate brief, the court "conclude[d] that Finn has acted unprofessionally and that public censure is in order." Finn was fined $1,000 and was removed from the list of eligible lawyers under the Criminal Justice Act for two years.

The court also asked that a copy of the opinion be forwarded to the ARDC to see if further action was required.

Illinois ARDC Complaint

After various hearings and sworn statements, the ARDC formally filed a complaint against Michael Finn before the ARDC Hearing Board claiming violations of the Illinois Rules of Professional Conduct. It's not clear how the Administrator came to his conclusions, but the complaint alleges that Michael Finn was not ill on April 14, 2011, and instead "did not appear for oral arguments because he felt unprepared." In his complaint the Administrator is seeking a hearing to make findings of fact and law to determine the appropriate discipline, if any.

Lessons for Lawyers

It's a bit astonishing that Finn didn't back up his claim with any "evidence." Most people need a doctor's note to be excused from a lot less (i.e., the second grade) than appearing before a United States Circuit court. If anyone should know how a "prudent" person acts, and the importance of a paper trail, it should be an attorney. Whether he was sick or not, he should have built his case.

Related Resources:

• Attorney Schooled by 7th Cir in 1L Contracts, Fee Disputes (FindLaw's U.S. Seventh Circuit Blog)
• Save the Drama for Your Mama: 7th Cir Can't Hear Disbarment Appeal (FindLaw's U.S. Seventh Circuit Blog)
• Wisconsin Lawyer Slapped with Disbarment For Filing Failures (FindLaw's U.S. Seventh Circuit Blog)