david alannovoselsky, commissionno. 2015pr00007 … · l 000497 ("the first wrongful death...

BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

DAVID ALAN NOVOSELSKY, Commission No. 2015PR00007

Attorney-Respondent,

No. 2069881.

ANSWER

BACKGROUND COMMON TO COUNTS I-IV

1. In 2002, Claudia Zvunca ("Claudia") was traveling with her seven-year-olddaughter, CristinaZvunca ("Cristina"), on a Greyhoundbus back to Illinois from Las Vegas. Thebus stopped for gas at a rest stop in Colorado, and Claudiaand Cristina left the bus. Later, whenClaudia saw the bus pulling away, she began running after the bus holding Cristina's hand to tryand stop it from leaving them at the rest stop. As she ran, Claudia was knocked downby the bustire and crushed beneath the 37,000-pound bus. A bystander swept Cristina out of the way of thebus as she watched her mother die.

ANSWER: Respondent has insufficient knowledge of the truth or falsity of the

allegations of Paragraph 1 and therefore denies those allegations.

2. At the time of her death, Claudia was married to Tiberu Klein ("Klein"), who wasCristina's stepfather. Claudia was also survived by her parents, Maria and Vasile Zvunca ("thegrandparents"), who were living in Romania at the time of Claudia's death.

ANSWER: Admit.

3. Following Claudia's death, Klein hired the law firm of Cogan, McNabola &Dolan ("Cogan firm") in February 2003 to prosecute a wrongful death claim against Greyhoundand other defendants. In November 2003, Klein filed a petition in the probate division of theCircuit Court of Cook County to appoint an independent administrator for Claudia's estate inCook County, where Claudia had resided {In Re the Estate of Claudia Zvunca, case number 03 P8718 ("Claudia's estate case")). That petition requested that Greg Marshall, a paralegal in the

Cogan firm, be appointed to serve as independent administrator of Claudia's estate and wasgranted by the court.

ANSWER: Admit. Stating further, the Cogan firm was the third lawyer retained by

Tiberiu Klein in regard to prosecuting a wrongful death action, and at the time Klein

retained the Cogan firm, a case seeking damages against Greyhound for the wrongful

death of Claudia Zvunca was pending in the United States District Court for the District of

Colorado, having been filed by predecessor counsel to the Cogan firm in the Circuit Court

of Cook County in 2002 and then removed to federal court and transferred to Colorado.

4. On or about January 15, 2004, the Cogan firm filed a wrongful death case againstGreyhound, Motor Coach Industries and the driver of the bus. The matter was docketed as GregMarshall, Estate of Claudia Zvunca, and Cristina Zvunca v. Motor Coach IndustriesInternational, Inc., Greyhound Lines, Inc. and Wesley Jay Tatum, Cook County case number 04L 000497 ("the first wrongful death case"). In or about April 2004, the Cogan firm withdrewfrom Claudia's estate case and the first wrongful death case. Klein then hired the law firm ofClancy & Stevens to represent Marshall, who continued to serve as court-appointed independentadministrator of Claudia's estate in the first wrongful death case. Jeanine Stevens ("Stevens")was the attorney from Clancy & Stevens who handled that case. In May 2004, Stevensvoluntarily dismissed the first wrongful death case.

ANSWER: Respondent denies that the case docketed as Greg Marshall, Estate ofClaudia

Zvunca, and Cristina Zvunca v. Motor Coach Industries International, Inc., Greyhound

Lines, Inc. and Wesley Jay Tatum, Cook County case number 04 L 000497, was the first

wrongful death case filed in relation to the death of Claudia Zvunca. Respondent admits

the remaining allegations of Paragraph 4.

5. On or about September 14, 2004, Stevens refiled the wrongful death case againstGreyhound and other defendants. That case was captioned Greg Marshall, Administrator of theEstate ofClaudia Zvunca, deceased, and Cristina Zvunca, a minor by Paul Brent, as nextfriendv. Motor Coach Industries International, Inc., Greyhound Lines, Inc. and Wesley Jay Tatum,CookCounty case number04 L 10431 ("the secondwrongful death case").

ANSWER: Respondent denies that the case captioned Greg Marshall, Administrator of

the Estate of Claudia Zvunca, deceased, and Cristina Zvunca, a minor by Paul Brent, as next

friend v. Motor Coach Industries International, Inc., Greyhound Lines, Inc. and Wesley Jay

Tatum, Cook County case number 04 L 10431, was the second wrongful death case filed in

relation to the death of Claudia Zvunca. Respondent admits the remaining allegations of

Paragraph 5.

6. On May 13, 2005, the Honorable James Kennedy removed Greg Marshall asindependent administrator of Claudia's estate and appointed attorney F. John Cushing as theindependent administrator of Claudia's estate. On May 12, 2005, the Honorable Susan Zwickappointed Marina Ammendola ("Ammendola") as Cristina's guardian ad litem in the secondwrongful death case.

ANSWER: Admit. Stating further, both appointments were made on motion of Stevens..

7. On May 19, 2005, Stevens filed a motion to amend the complaint to reflect theappointments of Cushing and Ammendola. Stevens' motion was granted, and the secondwrongful death case was thereafter recaptioned as F. John Cushing, Administrator ofthe Estateof Claudia Zvunca, deceased, and Cristina Zvunca, a minor by Marina E. Ammendola, asguardian ad litem v. Motor Coach Industries International, Inc., Greyhound Lines, Inc. andWesley Jay Tatum. The Cook County docket number remained 04 L 10431.

ANSWER: Admit.

8. In August 2005, Cushing, as administrator of Claudia's estate, hired the law firmof Clancy & Stevens to continue to represent Claudia's estate in the second wrongful death case.In September 2005, pursuant to a motion filed by Klein, the probate court changed Cushing'sstatus from independent administrator to a supervised administrator.


allegations of the first sentence of Paragraph 8 and therefore denies those allegations.

Respondent admits the allegations of the second sentence of Paragraph8.

9. Between September 2005 and June 2006, the grandparents, who continued toreside in Romania, allowed Cristina to remain under Stevens' care and custody so that Cristinacould attend school in Illinois.


allegations of Paragraph 9 and therefore denies those allegations.

10. Sometime in 2006-2007, Klein and the grandparents became dissatisfied withCushing's, Stevens' and Ammendola's involvement in the second wrongful death case.

ANSWER: Admit.

11. Between September 11, 2007, and May 2008, Judge Zwick made at least tworequests that Cristina submit to a current mental health evaluation to assist the court indetermining whether Cristina should give a deposition in the second wrongful death case. Duringthis time, Klein and the grandparents began resisting Stevens' and Ammendola's efforts to haveCristina evaluated by a mental health professional, including failing to bring Cristina to twoscheduled appointments with a pediatric psychiatrist. Klein and the grandparents also attemptedto terminate the representation of Stevens and Ammendola and the administration of Cushing(including filing, in Claudia's estate case, a petition to remove Cushing as administrator ofClaudia's estate, which was later denied). Stevens and Ammendola did not agree to Klein and thegrandparents' requests that they withdraw from involvement in the second wrongful death case,because none of them had been retained by Klein or the grandparents: Ammendola had beenappointed by the court, Stevens had been hired by Cushing as attorney for Claudia's estate, andCushing had beenappointed administrator by the court in Claudia's estate case. Further, Cushingdid not represent, as an attorney,Cristina, Claudia'sestate, Klein or the grandparents.

ANSWER: Respondent admits that Klein and the grandparents filed a petition to

remove Cushing as administrator of Claudia's estate. Respondent has insufficient

knowledge of the truth or falsity of the remaining allegations of Paragraph 11 and

therefore denies those allegations.

12. In or about November 2007, Klein filed apro se petition for guardian of Cristina'sperson in the probate division of the Circuit Court of Cook County. The matter was docketedas In re the Estate ofCristina Zvunca, case number 07 P 7929 ("the guardianship case"). In thatpetition, Klein sought to be appointed Cristina's guardian.

ANSWER: Admit.

13. In or about February 2008, Respondent agreed with Klein and the grandparents torepresent them and Cristina in matters related to the guardianship case and their claims related toClaudia Zvunca's death. On or about March 27, 2008, Respondent filed an appearance in theguardianship case.

ANSWER: Admit. Stating further, at the same time, Klein and the grandparents also

retained attorney Louis Cairo as co-counsel to Respondent.

14. Between March 2008 and July 2008, Respondent represented Klein in Klein'sattempt to be appointed Cristina's guardian in the guardianship case. Ammendola opposedKlein's efforts to be appointed Cristina's guardian.

ANSWER: Admit.

15. On or about April 14, 2008, Respondent filed a motion to intervene as a matter ofright in the second wrongful death case. In his motion, he averred that he was representing onKlein and the grandparents. On May 6,2008, Respondent filed two motions, one for substitutionas a matter of right, and one for cause, seeking to remove Judge Zwick from presiding over thesecond wrongful death case.

ANSWER: Admit.

16. On or about June 5, 2008, Judge Zwick denied Respondent's motion to interveneand ruled that the substitution of judge motions were moot given her ruling on the motion tointervene. Judge Zwick denied the motion to interveneafter determining that the estate had beenaggressively represented in the litigation, that Klein's and Cristina's interests were potentiallyconflicting and because discovery had been concluded (but for Cristina's deposition) and thematter was ready for trial, therefore, allowing Klein to intervene might prejudice the originalparties. Judge Zwick also found that the grandparents were strangers to the lawsuit and thattheguardian ad litem had beenadequately protecting Cristina's rights in the lawsuit.

ANSWER: Respondent neither admits nor denies the legal conclusions recited in

Paragraph 16, and admits the facts aUeged.

17. On that same date, Judge Zwick ordered that Cristina be evaluated by a pediatricpsychiatrist. Respondent, on behalf of Klein and the grandparents, later opposed Ammendola'sefforts to comply with Judge Zwick's June 5, 2008 order to have Cristina evaluated bya pediatricpsychiatrist, by stating ina letter to Ammendola that she could not speak with Cristina, that shecould not physically take control of Cristina and that neither she nor Judge Zwick could orderthatCristina be taken anywhere otherthanby requesting that the personal guardian do so.

ANSWER: Admit.

18. Between May 2008 and July 2008, during the course of hearings in theguardianship case, the Honorable Kathleen McGury appointed Leonard Malkin ("Malkin") asguardian ad litem for Cristina in the guardianship case. In July 2008, Malkin interviewedCristina, Klein and the grandparents to determine if Cristina was being manipulated by Klein orthe grandparents. At this time, Judge McGury also spoke with Cristina in camera to discussCristina's wishes regarding the appointment of a guardian for her person. At no time did JudgeMcGury find or did Malkin report that Cristina, Klein or the grandparents had alleged thatStevens had physically or emotionally abused Cristina.

ANSWER: Respondent admits the allegations of the first three sentences of Paragraph

18. Respondent denies the allegations of the last sentence of Paragraph 18.

19. In July 2008 Malkin filed his report to the court regarding interviews heconducted of Cristina, Klein and the grandparents. The report recited that Cristina (who was 14at the time) expressed her wish that Klein be appointed to serve as her guardian and that she notbe required to submit to a mental health evaluation, as proposed by Ammendola (who was stillCristina's guardian ad litem in the second wrongful death case). During Judge McGury'sinterview of her, Cristina reiterated the same wishes as she had expressed to Malkin, i.e, thatKlein be appointed her guardian and that she not be required to submit to a mental healthevaluation.

ANSWER: Admit.

20. During her July 2008 interview with Malkin, Cristina also referred to the time in2005-2006 when Stevens was her temporary custodian, stating that she did not like living withStevens, that she had been left alone until 8:00 p.m., fed what she considered to be junk food,and that she did not like Stevens. Cristina reiterated those complaints about Stevens' care duringher in camera interview with Judge McGury. Respondent knew of Cristina's comments aboutStevens to Judge McGury and Malkin, because they werediscussed in courthearings during thistime, and because he received a copy ofMalkin's report.

ANSWER: Admit.

21. On or about July 18, 2008, Judge McGury entered an order in the guardianshipcase appointing Klein as guardian of Cristina's person. On that same date, Respondent filed asecond motion to intervene as a matter of right in the second wrongful death case on behalf ofCristina, Klein andthe grandparents, which was denied byJudge Elrod. Shortly thereafter, JudgeElrod denied Respondent's previously-filed second motion for substitution of Judge Zwick forcause and reassigned the matter back to Judge Zwick.

ANSWER. Admit.

22. On or about July 24, 2008, Judge Zwick denied a previously-filed motion byGreyhound to disqualify Stevens from further representation in the second wrongful death case.

ANSWER: Admit.

23. On or about July 28, 2008, the grandparents returned to their home in Romaniaand took Cristina with them to live. On or about July 31, 2008, Respondent filed, at Klein'sdirection, his substitute appearance as counsel for Cristina in the second wrongful death case. Onor about August 12, 2008, Respondent then filed a motion to remove Ammendola as Cristina'sguardian ad litem in the second wrongful death case.

ANSWER: Admit.

COUNTI

{Filingandmaintainingfrivolous litigation infederal court, re-filingfrivolous claimsandpursuing barredclaims in state court in the Zvunca matter)

24. The Administrator realleges paragraphs one through 23, above.

ANSWER: NO ANSWER REQUIRED.

25. On or about August 8, 2008, while the second wrongful death, Claudia's estateand Cristina's guardianship cases were pending in the Circuit Court of Cook County, Respondentfiled a complaint on behalf of the grandparents, as Cristina's next friend, in the United StatesDistrict Court for the Northern District of Illinois. The matter was docketed as Zvunca et al.v. Motor Coach Industries International, Inc., Greyhound Lines, Inc., Jeanine Stevens, MarinaAmmendola and F. John Cushing, case number 1:08-cv-04507 ("federal malpractice case").Respondent asserted in the complaint that the basis for federal court jurisdiction wasdiversity ofcitizenship, becausethe grandparents were Romaniancitizens.

ANSWER: Admit.

26. In counts three and four of the federal complaint, Respondent alleged fraud andlegal malpractice against Cushing, Stevens, Ammendola and the law firm of Clancy & Stevens.Respondent based his legal malpractice and fraud claims on the above-mentioned attorneys'refusal to withdraw upon being terminated by the grandparents and Cristina, as described inparagraph 11, above.

ANSWER: Admit.

27. Respondent's statements in counts three and four of the complaint, referred to inparagraph 26, above were false, lacked any factual basis and had no substantial purpose otherthan to embarrass, delay, or burden Stevens, Ammendola and Cushing. At the time he filed thecomplaint, Respondent knew that Cushing, who was the administrator of Claudia's estate, hadnot represented the grandparents and/or Cristina as their attorney. Respondent also knew, at thetime of filing the complaint, that Stevens had been appointed by the court to represent Claudia'sestate and that Ammendola had been appointed by the court as guardian ad litem for Cristina.Respondent knew that Stevens could only be removed by an order by the judge in Claudia'sestate case, that Ammendola could only be removed by an order by the judge in the secondwrongful death case, and that Cushing could only be removed as administrator by an order issuedby the judge in Claudia's estate case.

ANSWER: Deny.

28. In count five of the complaint, Respondent alleged that Stevens had fraudentlyinduced the grandparents to give Stevens temporary custody of Cristina in 2005. Respondentasserted a claim of intentional infliction of emotional distress against Stevens by further allegingthat Stevens had been "physically and emotionally abusive to the child, treated her harshly,abandoned her for long periods of times, and treated her with physical disdain by providing herwith inadequate and improper food and a complete and utter lack of care. As a result of thisvirtually [sic] kidnapping, and explicit and intentional emotional and physical abuse of the child,Cristina Zvunca has suffered great emotional distress and has been permanently damaged by herexperience under the control and custody of Ms. Stevens."

ANSWER: Admit.

29. Respondent's statements concerning Stevens in count five of the complaint,referred to in paragraph 28, above lacked any factual basis and had no substantial purpose otherthan to embarrass, delay, or burden Stevens because Respondent had received no information atthe time he filed the complaint to support his claims that Stevens had physicallyabused Cristina,that she had "provided her with complete and utter lack of care", that Stevens had "virtuallykidnapped" Cristina or that Cristina had been "permanently damaged by her experience underthecontrol and custody of Ms. Stevens."

ANSWER: Deny.

30. Respondent filed the complaint containing legal malpractice claims and abuseallegations in the federal malpractice case because he had been unsuccessful at that point inconvincing Judge Zwick to remove Stevens from representation of Claudia's estate in the secondwrongful death case, to allow Respondent's clients to intervene in the second wrongful deathcase and to abandon efforts to have Cristina submit to an evaluation.

ANSWER: Deny.

31. Respondent filed the complaint containing legal malpractice claims and abuseallegations in the federal malpractice case with the express purpose of creating a conflict of

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interest between the grandparents and/or Cristina and Cushing, Stevens and Ammendola, so as toforce the removal or withdrawal of Stevens, Cushing and Ammendola from the second wrongfuldeath case. Respondent had no basis for doing so that was not frivolous. Respondent alsointended his statements in the complaint to embarrass, delay, or burden Stevens, Ammendola andCushing so that they would be forced to seek removal by the state court from the secondwrongful death case.

ANSWER: Deny.

32. Between August 2008 and February 2009, Cushing, Ammendola and Stevensfiled various motions to dismiss the complaint in the federal malpractice case.

ANSWER: Admit.

33. On or about February 26, 2009, the Honorable Harry D. Leinenweber issued amemorandum opinion and order dismissing without prejudice all legal malpractice and fraudclaims againstCushing, Ammendola and Stevens (as described in paragraph 26, above) based onwhat Judge Leinenweber determined to be Respondent's failure to state a claim upon which reliefcould be granted, but retaining the purported claim of intentional infliction of emotional distressby Stevens on Cristina.

ANSWER: Admit.

34. On or about March 6, 2009, Respondent filed a second amended complaint in thefederal malpractice case, reasserting the same claims of legal malpractice, fraud and intentionalinfliction of emotional distress against Stevens and her law firm as had been contained in theoriginal malpractice complaint. Respondent did not allege any new or additional facts in thesecond amended complaint than had been contained in the previous filing found by JudgeLeinenweber to be insufficient to state a claim upon which relief could be granted.

ANSWER: Admit.

35. Respondent filed the second amended complaint containing legal malpracticeclaims andabuse allegations in the federal malpractice case because he had beenunsuccessful atthat point in convincing Judge Zwick to remove Stevens from representation of Claudia's estatein the second wrongful death case, to allow Respondent's clients to intervene in the secondwrongful death case andto abandon efforts to have Cristina submit to an evaluation.

ANSWER: Deny.

36. Respondent filed the second amended complaint with the express purpose ofcreating a conflict of interest between the grandparents and/or Cristina and Stevens, so as toforce the removal or withdrawal of Stevens from the second wrongful death case. Respondenthad no basis for doing so that was not frivolous. Respondent also intended his statements in the

second amended complaint to embarrass, delay, or burden Stevens so that she would seekremoval by the court from the second wrongful death case.

ANSWER: Deny.

37. On or about June 4, 2009, Judge Leinenweber issued a memorandum opinion andorder dismissing all counts of the second amended complaint in the federal malpractice caseagainst Stevens and her firm, except for count four, which alleged intentional infliction ofemotional distress of Cristina by Stevens. In his opinion, Judge Leinenweber dismissed themalpractice claims because the attorneys had been employed by the court-appointedadministrator of Claudia's estate and the court-appointed guardian ad litem for Cristina, that theycould only be discharged by the circuit court and that their "failure to withdraw in and of itselfcannot constitute malpractice." Judge Leinenweber also found that the malpractice claims werepremature because Respondent had not alleged any monetary loss or adverse judgment,settlement or dismissal. Further, Judge Leinenweber dismissed the fraud claims against Stevensand her law firm because he found that the circuit court had to determine if the appointments ofthe administrator and guardian ad litem had been procured by fraud, since that court made theappointments. Respondent received a copy of Judge Leinenweber's June 4, 2009 memorandumand order shortly after it was filed.

ANSWER: Admit.

38. On June 1, 2009, three days before the dismissal of the federal malpracticeallegations, but after Cushing, Ammendola and Stevens had filed motions to dismiss,Respondent filed a complaint alleging malpractice, fraud and intentional infliction of emotionaldistress againstCushing, Stevens and Ammendola in the CircuitCourtof Cook County on behalfof Klein and Cristina's estate. The matter was docketed as Estate of Cristina Zvunca, TiberiuKlein, etal. v. Cushing, Stevens andAmmendola, case number09 L 6397 ("the 2009 state case").

ANSWER: Admit.

39. Sometime between September and October 2009, Klein and the grandparentsbecame dissatisfied with Respondent's services and terminated him as counsel for Klein, Cristinaand the grandparents.

ANSWER: Respondent admits that on occasion, Klein expressed an intent to terminate

Respondent, and denies the remaining allegations of Paragraph 39.

40. On or about September 29, 2009, Respondent filed a first amended complaint inthe 2009 state case.

ANSWER: Admit.

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41. On or about October 8,2009 Respondent filed a motion to withdraw in the federalmalpractice case, which the court granted.

ANSWER: Admit.

42. On or about October 22, 2009, Judge Leinenweber dismissed the federalmalpractice case for want of prosecution when no new attorney appeared on behalf of thegrandparents and Cristina. At the time that Judge Leinenweber dismissed the federal case, thefindings and dismissal by the court constituted an adjudication on the merits for purposes ofresjudicata.

ANSWER: Respondent admits the allegations of the first sentence of Paragraph 42.

Respondent neither admits nor denies the legal argument pled in the second sentence of

Paragraph 42.

43. On or about January 21, 2010, Respondent filed a third amended complaint in the2009 state case.

ANSWER: Admit.

44. Respondent's allegations in the complaint, first amended complaint and thirdamended complaint that he filed in the 2009 state case against Cushing, sounding in malpracticeand fraud, were the same as those Respondent made in the federal malpractice case described inparagraph 26, above. At the time Respondent pled the legal malpractice and fraud allegations inthe complaint, first amended and third amended complaints, if not before, Respondent knew thatCushing did not represent anyone as an attorney in the second wrongful death case or Claudia'sestate case, that the federal court had dismissed the malpractice and fraud allegations on June 4,2009, because Respondent had failed to state a claim under the legal theories alleged, that themalpractice claims were premature because Respondent had not alleged any monetary loss oradverse judgment, settlement or dismissal and that the federal court had held that allegations ofmalpractice based on an alleged failure to withdraw were insufficient, as Cushing's and Steven'sremoval had to be ordered by the circuit court.

ANSWER: Deny.

45. Respondent's allegations in the complaint, first amended complaint and thirdamended complaint against Stevens sounding in legal malpractice and fraud, based on heralleged failure to withdraw when discharged by the grandparents, were the same as those thatRespondent made inthe federal court case described inparagraphs 26 and 34, above. Atthe timeRespondent pled the legal malpractice and fraud allegations in the first amended and thirdamended complaints, if not before, Respondent knew that the federal court had dismissed thosesame allegations on June 4, 2009, because they failed to state a claim under the legal theoriesalleged, and that the federal court had determined that allegations of malpractice based on

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Steven's alleged failure to withdraw were insufficient as her discharge was required to berequested by the administrator and guardian ad litem, and ordered by the court that had appointedthem.

ANSWER: Deny.

46. After the federal court dismissed the federal case for want of prosecution,Respondent continued (by filing pleadings, including the third amended complaint) to assert thesame claims in the 2009 state case that had been previously adjudicated by the federal court,although those claims were barred by resjudicata.

ANSWER: Deny.

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

a. bringing or defending a proceeding, or asserting or controverting an issue therein, with nobasis for doing so that is not frivolous, by conduct including, asserting fraud andmalpractice claims against Cushing, Stevens, and Ammendola in the federal case, thenasserting the same claims in the state case against Stevens and Cushing in the samemanner as he had in the federal litigation after being told by the federal court that he hadfailed to state a claim and asserting claims that had been previously adjudicated in thefederal litigation to create a conflict of interest so that Respondent could have theattorneysremoved from the second wrongful death case and he could take control of thatcase and obtain professional fees, in violation of Rule 3.1 of the Illinois Rules ofProfessional Conduct (1990);

b. making statements of material fact or law to a tribunalwhich the lawyerknows are false,by conduct including statingthat the attorneys failed to withdraw upon termination by thegrandparents and Cristina, in violation of Rule 3.3(a)(1) of the Illinois Rules ofProfessional Conduct (1990);

c. using means in representing a client that have no substantial purpose other than toembarrass, delay, or burden a third person, by asserting fraud and malpractice claimsagainst Cushing, Stevens, and Ammendola in the federal case, making the sameallegations in the same manner in state court that had previously been dismissed in thefederal court litigation, to create a conflict of interest to have attorneys removed from thestate court litigation and by making allegations that had no factual basis by stating thatStevens had physically abused, virtually kidnapped and provided no care to Cristina, inviolation ofRule 4.4 of the Illinois Rules ofProfessional Conduct (1990);

d. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct includingstating that the attorneys failed to withdraw upon termination by the grandparents andCristina, and by stating that Stevens had physically abused, virtually kidnapped andprovided no care to Cristina, in violation of Rule 8.4(a)(4) of the Illinois Rules ofProfessional Conduct (1990); and

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e. conduct that is prejudicial to the administration ofjustice, by conduct including filing andattempting to maintain frivolous litigation, in violation of Rule 8.4(a)(5) of the IllinoisRules of Professional Conduct (1990).

ANSWER: Deny.

COUNT II

{Failure to investigate claims in third amended complaint)



49. On or about May 7, 2009, during a court hearing in the guardianship case,Respondent informed Judge McGury that he had received information from Cristina and/or Kleinto the effect that Cristina had alleged she had been physically or sexually abused by Stevenswhen she lived with Stevens.

ANSWER: Admit.

50. At no time did Respondent take any steps to investigate Cristina's purportedclaims, such as contacting the Illinois Department of Children and Family Services to request aninvestigation, contacting law enforcement authorities, or having Cristina evaluated by a mentalhealth professional or expert.

ANSWER: Deny.

51. Respondent did not allege in the June 1, 2009 complaint or September 29, 2009first amendedcomplaint that he filed in the 2009 state case that Cristina had been physicallyandsexually abused by Stevens.

ANSWER: Admit.

52. In September 2009, Klein and the grandparents became dissatisfied withRespondent's services and terminated Respondent's representation of Klein, Cristina and thegrandparents. During that time, Respondent also became aware, at least through discussions inthe court proceedings in the second wrongful death case, that Cristina no longer wished to haveRespondent represent her interests.

ANSWER: Deny.

53. On or about October 6, 2009, Klein, in his capacity as guardian of Cristina'sestate, filed in the 2009 state case apro se emergency motion, in which he raised issues aboutRespondent's representation of the estate and alleged that he had not authorized the filing of the2009 state case.

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ANSWER: Admit.

54. By at least October 6, 2009, Respondent was aware that both Klein and Cristinano longer wanted him to represent them in the 2009 state case.

ANSWER: Deny.

55. Sometime between September 2009 and December 11, 2009, Respondentapproached M.B. Financial, N.A. ('the bank") about serving as the guardian of Cristina'sfinances in the second wrongful death case. During that time, representatives of the bank agreedto serve as guardian of Cristina's finances, and also that Respondent would represent M.B.Financial, N.A., in it's anticipated capacity as that guardian, in the second wrongful death caseand the 2009 state case.

ANSWER: Admit.

56. On or about December 11, 2009, the Honorable Daniel M. Locallo appointed thebank to serve as the guardian ofCristina's finances in the second wrongful death case.

ANSWER: Admit.

57. On or about January 21, 2010, Respondent filed a third amended complaint in the2009 state case. The amendments included, among other things, the addition of M. B. Financialas a plaintiff in the 2009 state court case.

ANSWER: Admit.

58. Respondent sought appointment of the bank to act as guardian of Cristina'sfinances after he became aware that Cristina, Klein and the grandparents wished to terminate himas their attorney, to maintain his involvement in the second wrongful death case and the 2009state case. Respondent had previouslyrepresented the bank in unrelatedmatters.

ANSWER: Deny.

59. In the third amended complaint that Respondent filed in the 2009 state case,Respondent re-alleged the intentional infliction of emotional distress claim against Stevens thathe had asserted in the federal court litigation referred to in Count I, above. In the third amendedcomplaint, Respondent made the following additional allegations, inter alia, that he had notpreviously pled in the federal litigation:

a. Stevens wanted to obtain control of Cristina and used Cristina as a "surrogate child";b. Stevens had acted in a similar manner with other minors on other occasions in the past;c. Stevens obtained control of Cristina to abuse her and supplement Stevens' own emotional

needs;d. Stevens threatened to place Cristina in "psychiatric confinement";

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e. Cristina had been struck by Stevens and "forced to engage in unwanted physical contact"with Stevens, who "shoved and slapped" Cristina and treated her as a "personal servant."

ANSWER: Admit.

60. Respondent's statements in the third amended complaint, referred to in paragraph59, above lacked any factual basis and had no substantial purpose other than to embarrass, delay,or burden Stevens. At the time he filed the complaint, Respondent had not taken any steps toinvestigate any of the claims, such as contacting the Illinois Department of Children and FamilyServices to request an investigation, contacting law enforcement authorities, or having Cristinaevaluated by a mental health professional or expert.

ANSWER: Deny.

61. On or about February 16, 2010, Cristina provided a letter to the HonorableWilliam Haddad (the judge then presiding over the 2009 state case) in which she recanted allclaims of abuse against Stevens. Respondent became aware of Cristina's recantation of theallegations against Stevens on or shortly after February 16,2010.

ANSWER: Respondent admits that a letter signed by Cristina was submitted to the Honorable

William Haddad on or about February 16, 2010, that the letter contained recantations of some of

the claims of abuse against Stevens, and that Respondent became aware of the letter shortly after

it was submitted. Respondent denies the remaining allegations ofParagraph 61.

62. Between February 16,2010 and July 2010, Respondent continued to prosecute theabuse allegations against Stevens in the 2009 state case by filing pleadings, although he knewthat Cristina had repudiated the claims.

ANSWER: Deny.


a. bringing or defending a proceeding, or asserting or controverting an issuetherein, withnobasis for doing so that is not frivolous, by conduct including, continuing to prosecute thethird amended complaint containing the allegations of abuse against Stevens for fivemonths after he learned Cristina had repudiated the charges in violation ofRule 3.1 of theIllinois Rules of Professional Conduct (2010);

b. using means in representing a client that have no substantial purpose other than toembarrass, delay, or burden a third person, by making allegations of abuse againstStevens without investigating those allegations, in violation of Rule 4.4(a) of the IllinoisRules ofProfessional Conduct (2010); and

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c. conduct that is prejudicial to the administration of justice, by conduct including,continuing to prosecute the third amended complaint containing the allegations of abuseagainst Stevens for five months after he learned Cristina had repudiated the charges inviolation ofRule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

ANSWER: DENY.

COUNT III

{Meritless removal tofederal court ofstate court action in Zvunca matter)



65. On or about July 13, 2010, at Respondent's request, the court dismissed the 2009state case.

ANSWER: Admit.

66. On or about August 11, 2010, defendants Cushing, Stevens and Ammendola fileda motion requesting sanctions against Respondent under Supreme Court Rule 137, based onRespondent's conduct in filing the amendedcomplaints in the 2009 state case without conductinga reasonable inquiry to the allegations and for an improper purpose. The matter was stayedpending appeals related to the second wrongful death case.

ANSWER: Admit.

67. On or about February 4, 2011, Respondent filed a notice of removal of the Rule137proceeding in the 2009 state court case to the U.S. DistrictCourt, Northern District, EasternDivision. The matter was docketed as MB Financial, as guardian of the estate of CristinaZvunca, minor, v. Jeanine Stevens, et al, case number l:ll-CV-00798.

ANSWER: Admit.

68. In the notice of removal, Respondent alleged as the basis for the removal thatCristina had filed a petition to intervene and was seeking damages from Respondent, her formercounsel, and for costs and attorneys fees in the 2009 state court case and that, therefore, diversityof citizenship (since Cristina resided in Romania) existed for thebasis of removal. At the time ofthe notice of removal, Respondent knew that the judge in the 2009 state court case had not yetruled on Cristina's petition to intervene, and that, therefore, no diversity of citizenship existed,because Cristina had not been allowed yet to intervene in the 2009 state case sanctions matter.


Respondent denies the allegations of the second sentence of Paragraph 68.

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69. At the time Respondent filed the notice of removal, Illinois Supreme Court Rule137(b) provided that:

"All proceedings under this rule shall be brought within the civil action in which thepleading, motion or other document referred to has been filed, and no violation or allegedviolation of this rule shall give rise to a separate civil suit, but shall be considered a claimwithin the same civil action."

ANSWER: Admit.

70. At the time he filed the notice of removal, Respondent knew that Rule 137(b)prohibited him from filing a civil suit separate from that giving rise to the Rule 137 sanctionsmotion in the 2009 state case.

ANSWER: Deny.

71. At the time Respondent filed the notice of removal, none of the parties hadconsented to removal of the 2009 state case to federal court and Respondent was not a party tothe 2009 state case.

ANSWER: Deny.

72. On February 18, 2011, Cristina, through counsel, filed a motion in case numberl:ll-CV-00798 to remand the matter to state court. On March 2, 2011, the court grantedCristina's motion, which Stevens had joined, as the court lacked subject matter jurisdictionbecause Respondent had previously dismissed the 2009 state case and there was no state courtcase to remove to federal court.

ANSWER: Admit.

73. On or about March 31,2011, Cristina and Stevens filed in case number 1:11-CV-00798 a motion for sanctions and attorneys' fees against Respondent.

ANSWER: Admit.

74. On or about July 5, 2011, Judge Leinenweber filed a memorandum opinion andorder in case number 1:1 l-CV-00798 remanding the case to state court and granting in part, anddenying in part, Stevens' and Cristina's motions for sanctions under 28 U.S.C. section 1927 and28 U.S.C. section 1447. Judge Leinenweber found that Respondent's attempt to remove the casehad been "meritless", that Respondent had cited no case law in support of his request to removethe case from state court because none existed, and that an "objectively reasonable attorney whoundertook a cursory review of case law and the facts of the case would have never attempted toremove the Rule 137 proceeding from state court." Judge Leinenweber also found thatRespondent had vexatiously multiplied the proceedings and found that Respondent waspersonally liable to Cristina for $10,155 and to Stevens for $2,424 for fees.

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ANSWER: Admit.

75. On or about July 15, 2011, Respondent filed a notice of appeal of JudgeLeinenweber's July 5, 2011 order in the United States Court of Appeals for the Seventh Circuit.The matter was docketed as MB Financial, N.A. v. Stevens, No. 11-2603.

ANSWER: Admit.

76. On April 24, 2012, the appellate court affirmed the district court's July 15, 2011order, finding, inter alia, that Respondent's removal was "worse than unreasonable; it waspreposterous" as Respondenthad not been a party to the state court action and only a party couldremove a state court case to federal court, that the filing of a sanctions motion did not makeRespondent a party; and that removal required consent of all defendants and the defendants hadnot consented to removal.

ANSWER: Admit.


a. bringingor defendinga proceeding, or assertingor controverting an issue therein, with nobasis for doing so that is not frivolous, by conduct including, improperremoval to federalcourt of the sanctions motion in violation of Rule 3.1 of the Illinois Rules of Professional

Conduct (2010);

b. using means in representing a client that have no substantial purpose other than toembarrass, delay, or burden a third person, by improperly removing the motion forsanctions to federal court and then appealing the remand order of the federal districtcourt, in violation ofRule 4.4(a) of the Illinois Rules ofProfessional Conduct (2010); and

c. conduct that is prejudicial to the administration of justice, by conduct including filingimproper removal and appeal of the remand order of the federal district court, in violationof Rule 8.4(d) of the Illinois Rules ofProfessional Conduct (2010).

ANSWER: Deny.

COUNT rv

{Misrepresentations to the court inRule 137sanctions proceedings)



79. On or about December 21, 2010, Respondent filed a response to the August 11,2010 motion for sanctions filed by Cushing, Stevens and Ammendola, referred to in paragraph66, above. Respondent signed his December 21, 2010 response and attached an affidavit

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reiterating many of the factual allegations in his response. In his response and affidavit,Respondent asserted that he filed the 2009 state case and the federal malpractice case because hehad been directed to do so by "a Judge of the Circuit Court" and that he was acting as "the court-appointed lawyer under instructions from the Probate Court to file these lawsuits" and "did so atthe direction of a judge." In his affidavit, Respondent asserted that "Judge McGury asked me toprepare filings to be filed initially in the federal court with regard to Ms. Stevens' conduct andlater before the Law Division" and that "I was given specific instructions by Judge McGury toprepare and file the lawsuits that were filed both in federal court and later before this Court.Judge McGury also instructed me to enter an order stating that these lawsuits could not bedismissed without her knowledge and consent."

ANSWER: Admit.

80. Respondent's statements in his response and affidavit referred to in paragraph 79,above, were false. At no time had Judge McGury, nor any other Circuit Court judge, orderedRespondent to file the 2009 state case or federal malpractice case.

ANSWER: Deny.

81. Respondent knew that the statements in his response and affidavit referred to inparagraph 79 above, were false, because he knew that neither Judge McGury, nor any otherCircuit Court judge, ordered Respondent to file the 2009 state case and federal malpractice case.

ANSWER: Deny.


a. bringing or defending a proceeding, or asserting or controverting an issue therein, whenthere is no basis for doing so that is not frivolous, by conduct including alleging that hehad been instructed by a judge to bring the 2009 state case and federal malpractice case,in violation ofRule 3.1 of the Illinois Rules ofProfessional Conduct (2010);

b. making statements of material fact or lawto a tribunal which the lawyer knows are false,by conduct including stating that he had been instructed by a judge to bringthe 2009statecase and federal malpractice case in violation of Rule 3.3(a)(1) of the Illinois Rules ofProfessional Conduct (2010);

c. using means in representing a client that have no substantial purpose other than toembarrass, delay or burden a thirdperson, by conduct including alleging that he had beeninstructed by a judge to bring the 2009 state case and federal malpractice case, inviolation ofRule 4.4(a) of the Illinois Rules of Professional Conduct (2010);

d. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct includingstating that he had been instructed by a judge to bring the 2009 state case and federal

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malpractice case in in violation of Rule 8.4(c) of the Illinois Rules of ProfessionalConduct (2010); and

e. conduct that is prejudicial to the administration of justice, by conduct including allegingthat he had been instructed by a judge to bring the 2009 state case and federal malpracticecase, in violation ofRule 8.4(d) of the Illinois Rules ofProfessional Conduct (2010).

ANSWER: Deny.

COUNTV

{Filing meritlesspleadings in guardianshipproceeding in Kuc matter)

83. In or about June 2008, Respondent and Dr. Eugune J. Kuc agreed that Respondentwould represent Dr. Kuc in matters related to Dr. Kuc petitioning the court to be appointedguardian of his mother, Daniela Kuc. On or about June 19, 2008, Respondent filed a petition forguardianship of a disabled person's estate on behalf of Dr. Kuc in the Probate Division of theCircuit Court of Cook County. The matter was docketed as In re the Estate ofDaniela Kuc, casenumber 2008 P 4108.

ANSWER: Admit.

84. On or about July 18, 2008, the Honorable Maureen Connors appointed Dr.Eugene J. Kuc as plenary guardian ofDaniela Kuc's estate and person.

ANSWER: Admit.

85. On or about February 13, 2009, Respondent, or someone at his direction, filed apetition in case number 2008 P 4108 requesting that an order of protection be issued againstRobert Kuc, Dr. Kuc's brother. In that petition, Dr. Kuc sought to bar Robert Kuc fromcontacting Daniela Kuc or appearing at her home. Judge Connors allowed the petition andentered the order ofprotection against Robert Kuc on February 13,2009.

ANSWER: Admit.

86. On or about April 1, 2009, Respondent, or someone at his direction, filed apetition for rule to show cause and request for sanctions in case number 2008 P 4108 againstRobertKuc and his attorney, Gus Santana, alleging that on March29,2009, Dr. Kuc had found anote on Daniela's night stand setting out Mr. Santana's office and cell phone numbers.Respondent attached to the rule to show cause phone records showing calls from Daniela's homephone to Mr. Santana's office and cell phones onMarch 26, 2009. Respondent requested that Mr.Santanabe held in indirect criminal contempt for discussing Daniela's her guardianship with herwithout notifiying either Respondent or the guardian ad litem who had been appointed forDaniela Respondent further alleged in the petition that, in the alternative, if the calls had beenmade by Robert Kuc from Daniela's phone, that the court find that Robert Kuc violated theFebruary 13,2009 order ofprotection.

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ANSWER: Deny. Stating further, the April 1, 2009 petition was prepared, signed and

filed by James Ayres, an associate in Respondent's firm who was related by marriage to

Dr. Kuc.

87. At no time prior to filing the April 1, 2009 petition, did Respondent conduct anyinvestigation into why Daniela had Mr. Santana's numbers on her night stand, whether Danielahad placed the calls herself, whether Daniela's caretaker had placed the calls, or if Mr. Santanahad actually spoken with Daniela. Prior to filing the motion for sanctions, Respondent neverspoke to nor attempted to contact Mr. Santana.

ANSWER: Admit.

88. On or about May 1, 2009, Robert Kuc and Mr. Santana each filed motions todismiss the April 1, 2009 petition. The bases of the motions to dismiss were that Respondent hadnot investigated the veracity of the allegations against Mr. Santana, that an indirect criminalproceeding must be brought as a petition for adjudication of criminal contempt, and that thepetition for rule to show cause was not sufficient to provide the alleged contemnor due process.Mr. Santana also filed a motion seeking Supreme Court Rule 137 sanctions against theNovoselsky Law Offices.

ANSWER: Admit.

89. On or about December 1, 2009, Respondent filed a motion for substitution ofjudge as a matter of right in case number 2008 P 4108. At the time Respondent filed theDecember 1,2009 motion for substitution ofjudge, Judge Connors had been hearing substantivematters in case number 2008 P 4108, including matters related to the appointment of Dr. Kuc asplenary guardian and the order ofprotection entered against Robert Kuc.


Respondent neither admits nor denies the legal conclusions pled in the second sentence of

Paragraph 89.

90. On December 2, 2009, Respondent filed a motion for substitution of judge forcauseand an emergency petitionto dismiss Mr. Santana's motionfor Rule 137 sanctions.

ANSWER: Respondent admits that on December2,2009, he filed an Emergency Petition

to Vacate This Court's Orders, Grant the Motion for Substitution of Judge for Cause, or in

the Alternative Grant Motion for Substitution of Judge for Cause and Transfer This

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Matter to the Presiding Judge of the Probate Division for Reassignment to the Chief Judge

to be Assigned to a Judge Outside of the Probate Division, to which was attached an

affidavit by James Ayres in support of the Emergency Petition for Substitution of Judge for

Cause, as well as an Emergency Motion to Dismiss Rule 137 Sanctions.

91. On or about September 2, 2010, Mr. Santana filed additional motions for Rule137 sanctions against the Novoselsky Law Offices, alleging that the motion for substitution ofjudge as a matter of right was untimely, that the motion for substitution of judge for cause didnot allege specific conduct by the trial judge showing bias or prejudice, and that Respondent hadnot complied with section 2-1001(a)(3)(ii) of the Code ofCivil Procedure, which provided that:

"Every application for substitution of judge for cause shall be made by petition, settingforth the specific cause for substitution and praying a substitution of judge. The petitionshall be verified by the affidavit of the applicant."

ANSWER: Admit.

92. On or about October 22, 2010, Judge Connors entered an order finding thatRespondent had violated Rule 137 because he "failed to conduct a reasonable inquiry into thefacts of the pleading filed on April 1, 2009 in the above titled action seeking a criminal contemptcitation against Attorney Gustavo Santana that the above mentioned pleading when filed was notwell-grounded in fact and that the filing of said pleading along with conduct on the part of theassociate, James Ayers, Sr. and the principal, David Novoselsky in pursuing said actionconstitutes a violation of Supreme Court Rule 137." Judge Connors entered judgment againstNovoselsky Law Offices in favor of Mr. Santana and his attorney, David Sotomayor, in theamount of $9,038.50.

ANSWER: Respondent admits that Judge Connors entered an order on October 22,

2010, reciting the above quoted findings as against "The Novoselsky Law Offices, including

David Novoselsky and James Ayres, Sr.

93. In her October22, 2010 order, Judge Connors further found that: 1) the December1, 2009 motion for substitution of judge as a matter of right was untimely, was not well-grounded in fact or law and had no good-faith basis, and violated Rule 137; 2) the December 2,2009 motion to dismissMr. Santana's May 1, 2009 motion for sanctions was not well-groundedin fact or law and had no good-faith basis, and violated Rule 137; and 3) that the December 2,2009 motion for substitution of judge for cause had no good-faith basis, was not well-groundedin fact or law in the absence of the requisite affidavit, and constituted a violation of Rule 137.

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Judge Connors entered judgment against Respondent individually and d/b/a Novoselsky LawOffices, in favor of Mr. Santana and his attorney, David Sotomayor, in the amount of $8,013.

ANSWER: Admit.


a. bringing or defending a proceeding, or asserting or controverting an issue therein, with nobasis for doing so that is not frivolous, by conduct including, filing a motion forsubstitution ofjudge as of right which was untimely, and filing a motion for substitutionofjudge for cause which had no good faith basis and did not attach the required affidavit,in violation ofRule 3.1 of the Illinois Rules ofProfessional Conduct (2010);

b. using means in representing a client that have no substantial purpose other than toembarrass, delay, or burden a third person, by making allegations that Santana spoke withDaniela about her guardianship without investigating those allegations, in violation ofRule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

c. conduct that is prejudicial to the administration of justice, by conduct including makingallegations of prejudice and bias against Judge Connors that were not made in good faithor well grounded in law or fact, and making allegations that Santanaspoke with Danielaabout her guardianship without investigating those allegations in violation of Rule 8.4(d)of the Illinois Rules ofProfessional Conduct (2010).

ANSWER: Deny.

RESPONDENT'S DISCLOSURE PURSUANT TO COMMISSION RULE 231

1. Respondent is admitted to practice law in the State of Illinois, the United

States Supreme Court, the United States Courts of Appeals for the Sixth and Seventh

Circuits, and the United States District Courts for the Northern District of Illinois, Central

District of Illinois and Eastern District of Wisconsin. He has not been admitted to practice

law before any other state court, federal court, or administrative agency.

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2. Respondent holds no professional licenses other than his license to practice

law.

Respectfullyjrtjbinitted,

DavidAlanNovpselsky, Respondent

Mary RobinsonRobinson Law Group, LLC333 W. Wacker Drive, Suite 450Chicago, IL 60606(312)676-9874

Joseph E. TigheAlan J. Mandel, Ltd.7520 N.Skokie Blvd.

Skokie, EL60077(847) 329-8450

BY: \ Mary Robinson

One of his Attorneys

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BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

DAVID ALAN NOVOSELSKY,

Attorney-Respondent,

No. 2069881.

AFFIDAVIT PURSUANT TO 735 ILCS 5/2-610

David Alasn Novoselsky, an attorney, hereby certifies, pursuant to the Illinois Code

of Civil Procedure, 735 ILCS 5/1-109 and 735 ILCS 5/2-610:

1. That he is the Attorney-Respondent named in the above-captioned matter.

2. That his Answer to the Administrator's Complaint, to which the instant

Affidavit is attached, contains certain statements of insufficient knowledge on which to

base a belief as to the truth or falsity of the allegations contained in the complaint.

3. That those allegations of insufficient knowledge are true and correct

FURTHER AFFIANT SAYETH NOUGHT.

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil

Procedure, the undersigned, an attorney, certifies that the statements set forth in this

Commission No. 2015PR0007

Affidavit Pursuant To 735 ILCS 5/2-610 are true and correct.

BY: David Alan Novoselsky

Respondent

david alannovoselsky, commissionno. 2015pr00007 … · l 000497 ("the first wrongful death...

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