onseptember 1, 2009, while a passenger onthe vessel, scot ... · the vandenbergsexecuted...

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BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

MARK EDWARD McNABOLA,

Attorney-Respondent,

No. 6189613.

ANSWER TO COMPLAINT

Respondent, Mark Edward McNabola ("McNabola"), through undersigned counsel,

answers the Complaint ("Complaint") of the Administrator of the Attorney Registration and

Disciplinary Commission ("Administrator) as follows:

ANSWER TO ALLEGATIONS COMMON TO COUNTS I-V

The Vandenberg Matter

Commission No. 2018PR00083

1. On September 1, 2009, Scot Vandenberg (hereinafter "Scot") chartered a yacht,Bad Influence II, (hereinafter "vessel") owned and chartered by RQM LLC andmanufactured by Brunswick Boat Group/Brunswick Corporation (hereinafter,"Brunswick") for a cruise beginning at 12:00 pm and ending at 5:00 pm on LakeMichigan in Chicago.

Answer:

2.

Admitted.

On September 1, 2009, while a passenger on the vessel, Scot was severely injuredwhen he fell from the top deckof the vessel to the bottom deck. As a result of hisinjuries, Scot became a quadriplegic. Scot was married to Patricia Vandenberg(hereinafter, "Patty") at the time of his injuries.

Answer: Admitted.

On September 22, 2009, Scot and Patty Vandenberg (hereinafter, "theVandenbergs") retained the law firm of Powers Rogers & Smith, P.C. and

RaquelT

Filed - ARDC Clerk - Today's Date

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[

attorney John B. Kralovec (hereinafter, "Kralovec"), to represent them in claimsrelated to Scot's injuries. On that day, the Vandenbergs and their attorney signeda fee contract which provided that Powers, Rogers & Smith and John Kralovecwere to be paid total attorneys' fees of one-third of the gross amount theVandenbergs received, whether by trial, settlement or otherwise. The fee contractalso provided in writing for a division of fees between Power Rogers & Smith andKralovec.

Answer: McNabola has no knowledge sufficient to form a belief as to the allegations of

paragraph 3, except he admits, upon information and belief, that the Vandenbergs had retained

the Power and Kralovec firms in 2009 after Scot's accident. Answering further, McNabola states

that in the Vandenberg litigation he asked Power and Kralovec to produce their fee contract(s)

with the Vandenbergs, which they refused to produce.

4. On March 12, 2010, Powers Rogers & Smith filed a lawsuit on behalf of theVandenbergs in the Circuit Court of Cook County, County Department, LawDivision. The clerk of the court docketed the matter as Scot and Patricia

Vandenberg, plaintiffs, v. RQM LLC, a Delaware Corporation; BrunswickCorporation; and Brunswick Boat Group, a division of Brunswick Corporation;Defendants, 10L3118 (hereinafter"Vandenbergv. Brunswick")

Answer: Admitted.

5. On August 31, 2010, attorneys for RQM caused a complaint to be filed in theUnited States District Court for the Northern District of Illinois Eastern Division

captioned, In the matter ofthe Complaint ofRQM LLC, Owner oftheMotor YachtBad Influence II, for Exoneration From or Limitation of Liability, 10CV5520,(hereinafter "the RQM federal admiralty action.") That matter was assigned toHon. Amy St. Eve. Under admiralty law, when there is a legal action involving avessel, which includes a yacht, the vessel owner can file a "Limit of LiabilityAction," to limit the vessel owner's liability in the legal action to the value of thevessel. Admiralty law requires that all related claims be litigated in the federalaction first, and, as a result, any state court actions are stayed until the federalclaim is resolved or the state claims are consolidated with the federal action.

ANSWER: The first two sentences are admitted. The remainder of paragraph 5 states legal

conclusions to which no answer is required. If and to the extent an answer is required, the legal

conclusions are denied to the extent they misstate the applicable law.

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6. On September 3, 2010, as a result of RQM's filing the federal admiralty actionreferenced in paragraph 5 above, Judge Amy St. Eve entered an injunction in thefederal admiralty action, enjoining and prohibiting "instituting or prosecuting anyaction in any Court or taking any legal proceedings whatsoever other than this[federal one], until the issues in [the federal action] were resolved." On or aboutSeptember 7, 2010, the injunction was published in the Chicago Daily LawBulletin, and served by notice by the Federal Court upon all parties assertingclaims with respect to the vessel including attorneys.

Answer: Admitted, upon information and belief.

7. Sometime in September of 2010 but prior to September 21, 2010, Dave Anders(hereinafter, "Anders"), a local attorney, friend, and lawyer for Scot on certainbusiness matters, met with the Vandenbergs about their legal claims resultingfrom the September 1 incident. Shortly after that meeting, Anders prepared aletter that the Vandenbergs sent to Powers Rogers & Smith, discharging that lawfirm.

Answer: McNabola has no knowledge sufficient to form a belief regarding meetings the

Vandenbergs had with Anders before September 2009. Upon information and belief, McNabola

believes that the Vandenbergs initiated communications with Anders, their personal attorney and

friend, about their legal claims resulting from the September 1, 2009 occurrence and their desire

to retain new counsel. After such communications with Anders, the Vandenbergs formally

discharged Power Rogers & Smith. McNabola otherwise denies paragraph 7, except he admits

upon information and belief that Anders prepared the letter at the direction and with the

participation of the Vandenbergs, and the Vandenbergs approved the letter that the Vandenbergs

sent to Power Rogers & Smith discharging that law firm. Answering further, McNabola states,

upon information and belief: that the Vandenbergs' letter that discharged Power Rogers & Smith

was dated June 28, 2010, not September 2010 as alleged; that the Vandenbergs discharged that

firm for a number of reasons including because Scot and Patricia Vandenberg believed that the

case was not being prosecuted aggressively; that on August 26, 2010, the Power firm delivered

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its file to Anders pursuant to the Vandenbergs' June 28, 2010 request; and Anders also filed on

that date a substitute appearance as counsel for the Vandenbergs in the Vandenberg v. Brunswick

case.

8. On July 13, 2012, Respondent changed his firm's name to McNabola Law Group,P.C.

Answer: Denied. The firm changed the firm's name.

ANSWER TO COUNT I

Alleged Unreasonable Fee, Conflict of Interest and Dishonesty in FeeAgreement

9. On September 21, 2010, Respondent and the Vandenbergs agreed thatRespondent of a law firm then known as, Cogan & McNabola, would representthe Vandenbergs in matters related to the incident which occurred on September1, 2009, described in paragraphs 1 through 7, above. On that day, Respondent andthe Vandenbergs executed Respondent's fee contract for "Adult-Personal Injury".

Answer: Denied, except that McNabola admits that he, as authorized agent of the firm then

known as Cogan & McNabola, P.C. (now known as McNabola Law Group, P.C. ("MLG")) and

the Vandenbergs entered into an engagement agreementtitled "Adult-Personal Injury" relating to

the occurrence on September 1, 2009 ("Engagement Agreement"). The Hearing Board is

respectfully referred to the Engagement Agreement for the contents thereof.

10. Pursuant to the terms of the September21, 2010 fee contract, Respondent agreedto represent the Vandenbergs in the "investigation, settlement, adjustment orprosecution of [the Vandenbergs'] cause of action against those persons or entitiesresponsible arising out of the occurrence on the day of September 1 [2009] at ornear 600 LSD [Lakeshore Drive]." Respondent was the attorney primarilyresponsible in handling the Vandenberg's claims, and no otherattorney's name orsignature appears on the contract.

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Answer: Regarding the first sentence, McNabola admits that the quoted language appears

in the Engagement Agreement, and the Hearing Board is respectfully referred to the agreement

• for the entire contents thereof. McNabola denies the remainder of paragraph 10, except he

admits that he was the only attorney of Cogan & McNabola, P.C. that signed the agreement and

that he had supervisory responsibility over the handling of the matter.

11. In Respondent's September 21, 2010 fee contract, Respondent set forth theE following terms for fees: "33 1/3% if the case is settled before a lawsuit is filed or

40% if a lawsuit is filed or case is sent to arbitration." Under Respondent'scontingent fee contract, in the event of no recovery, no fees are owed to

_ Respondent. Under the provision entitled "Contingency Fee," RespondentM provided that "[a]ttorneys' fees . . . shall be payable immediately upon the

conclusion of litigation." The September 21, 2010 fee contract also provided that:I "Any legal time spent on any appeal and/or post-trial issues will be billed on an

hourly basis pursuant to a separate negotiated written agreement." At no time didthe Vandenbergs sign a separate negotiated written agreement for appellate orpost-trial fees.

Answer: McNabola admits that the quoted language appears in the Engagement

Agreement, but restates it below in full context (italics added) and respectfullyrefers the Hearing

Board to the Agreement for the full contents thereof: Scot "agree[d] to pay Cogan & McNabola,

P.C, as compensation for their services and hereby assign[ed] to them money equal to the

following amounts: 33-1/3% if the case is settled before a lawsuit if filed or 40% if a lawsuit is

filed or case is sent to arbitration. Attorneys' fees equal to the present cash value of recoveries,

• per the foregoing ratios, shall be payable immediately upon the conclusion of litigation and not

as periodic payments. Any legal time spent on any appeal and/or post-trial issues will be billed

on an hourly basis pursuant to a separate negotiated fee agreement." McNabola has no

I knowledge sufficient to form abelief as to the last sentence of paragraph 11, but admits that no

such post-trial or appellatefee agreementwas signed with MLG.

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12. As a result of the fee provisions of Respondent's September 21 contract, ifRespondent retained any outside counsel to assist him in the Vandenbergs' matterhe was required to pay the fees at his own expense.

• Answer: Paragraph 12 states legal conclusions to which no answer is required. If and to

the extent an answer is required, McNabola denies paragraph 12, and states (i) that nowhere does

the Engagement Agreement state that the firm was required to pay at its own expense fees of

m specialized outside counsel necessary to the prosecution of the claim, and (ii) the "Case

Expense" paragraph authorized Cogan & McNabola to advance legal fees for lawyers with

specialized legal skills engaged "in connection with the investigation, settlement, adjustment, or

prosecution" of the matter.

K13. Respondent's September 21, 2010 fee contract contained a provision for "CaseExpense," which stated that the Vandenbergs authorized Respondent's firm to"incur reasonable expenses in connection with the investigation, settlement,adjustment or prosecution of said cause," and agreed they would reimburseRespondent's firm for "actual expenses incurred in the prosecution of said cause,regardless of the outcome of the cause."

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Answer: McNabola admits that the quoted language appears in the Case Expense section of

the Engagement Agreement, and respectfully refers the Hearing Board to the Agreement for the

full contents thereof.

14. At no time after September 21, 2010, did the Vandenbergs negotiate withRespondent to modify that fee contract, or execute a written fee contract, withanylawyer other than Respondent.

Answer: Denied. Answering further, McNabola states that in connection with the 2012

settlement with RQM, the Vandenbergs signed a Settlement Statement ("RQM Settlement

Statement") in which, among other things, McNabola agreed that MLG would reduce its fee to

charge the Vandenbergs one-third of that recovery asa fee, rather than the 40% to which the firm

was entitled under the Engagement Agreement; and in connection with that Settlement

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Statement, McNabola further agreed that MLG would defer $300,000 of the fee until after

resolution of the case against Brunswick, despite language in the Engagement Agreement

• entitling MLG to immediate payment of earned fees. The Settlement Statement was signed by

both Scot and Patricia Vandenberg. Additionally, the Vandenbergs authorized McNabola to

execute on their behalf a written fee contract with a necessary specialist in maritime law in

W connection with the litigation against RQM.

• 15. Under Respondent's September 21 fee contract, attorneys' fees are not defined ascase expenses and not recoverable as "case expenses."

• Answer: Paragraph 12 states legal conclusions to which no answer is required. If and to

the extent an answer is required, McNabola denies paragraph 12, and respectfully refers the

Hearing Board to the duly executed Engagement Agreement for the contents thereof.s

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16. As a result of his attorney-client relationship with the Vandenbergs, RespondentI stood in the position of a fiduciary and owed his clients the duty of good faith and

fair dealing which required Respondent at all times to place the interests of hisclients above his own personal interests, and to avoid exerting undue influence oroverreaching the attorney-client relationship.

I• Answer: McNabola admits that he owed fiduciary duties to the Vandenbergs, denies

1 paragraph 16 to the extent it misstates those duties, and further denies that he breached any

fiduciary duties to the Vandenbergs.

17. On October 8, 2010, Respondent filed his appearance on behalf of Scot and PattyI in the federal admiralty action, and a stipulation agreeing that the Vandenbergs• "concede the ship-owner's right to litigate all issues relating to limitation in the

federal limitation proceedings."

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Answer: Admitted.

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E18. On October 10, 2010, Respondent sent Anders a letter indicating that as the

referring attorney, Anders was to receive one-third of the fees recovered byRespondent in the Vandenberg matter as his referral fee. Respondent's

I September 21, 2010 fee contract with the Vandenbergs did not provide for adivision of fees between Anders and Respondent. At no time was a revised feeagreement executed providing for Anders' referral fee signed by Anders,

I Respondent and the Vandenbergs. The Vandenbergs did not sign a writingagreeing to the arrangement and the share of the fee that each lawyer wouldreceive.

W Answer: The first sentence isdenied, except McNabola admits that on October 1, 2010, he

sent Anders and Scot Vandenberg a letter memorializing and clarifying the shared legal

responsibility and referral fee arrangement. The letter stated in relevant part: "Let this letter

confirm that you are entitled to a referral fee in the amount of one-third of our one-third in return

for assuming equal legal responsibility." McNabola admits the second sentence. With regard to

( the third sentence, McNabola admits that "arevised fee agreement" providing for the referral fee

was not signed by Anders, McNabola and the Vandenbergs, but, answering further, denies that

such a signature is required by the Rules of Professional Conduct. In addition, any such notice

I was satisfied by the written confirmation to Scot in the October 1, 2010 letter, and the

reaffirmation of the fee division of one-third to Anders in the 2012 RQM Settlement Statement

signedby the Vandenbergs. In addition, the Vandenbergs have been aware at all times that David

I Anders was the referring attorney and participating actively to protect the Vandenbergs' legal

interests. An email of July 29, 2013 from Respondent to Scot Vandenberg and Dave Anders,

further confirms Scot Vandenbergs' knowledge and awareness of Dave Anders' role as the

referring attorney. The fourth sentence is deniedbecause of that Settlement Statement.

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EI 19. On October 12, 2010, Respondent filed a motion to dissolve the injunction• entered in the federal admiralty action to allow the Vandenbergs to proceed in the

state case, Vandenbergs v. Brunswick. The motion was briefed by both parties.

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Answer: Admitted that the motion was filed under McNabola's electronic signature and

that it was briefed. Answering further, McNabola denies that these allegations are relevant to

I this proceeding.

20. On January 12, 2011, Judge Amy St. Eve entered an order in the federal admiraltyaction, denying without prejudice, Respondent's motion to dissolve theinjunction. At no time between January 12, 2011 and August 3, 2011, did JudgeSt. Eve dissolve the federal injunction.

Answer: Admitted. Answering further, McNabola denies that these allegations are relevant

to this proceeding.

21. On August 31, 2011, Respondent caused to be filed a complaint in the CircuitCourt of Cook County against RQM and Rose Paving, the booking agent for thechartering of the vessel. The clerk docketed the matter as Vandenbergs v. RQM,Rose Paving, et. al. 11L9119 (hereinafter"Vandenbergs v. RQM."). The law firmof Williams and Montgomery represented the defendant Rose Paving.

Answer: Denied, except McNabola admits upon and information and belief that the

I complaint was filed without authorization by Cogan & McNabola associate, Jon Papin and

paralegal Lauren O'Keefe; that it was docketed as alleged; and that Williams and Montgomery

filed an appearance for defendant Rose Paving at a later date. Answering further, McNabola

denies that these allegations are relevant to this proceeding.

I 22. On November 11, 2011, in the federal case, RQM filed a motion to enforce theSeptember 3, 2010 injunction of other proceedings pursuant to the limitations act,

I alleging that Vandenbergs v. RQM was filed in an attempt to "avoid the reach ofthe federal court injunction." On December 22, 2011, Respondent responded onbehalf of the Vandenbergs to the motion to enforce the injunction of the statecourt proceedings.

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Answer: Denied, except McNabola admits that on November 22, 2011, RQM filed a

motion to enforce the September 3, 2010 injunction in the federal case and he e-signed a

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response, each of which the Hearing Board is respectfully referred to for the contents thereof.

Answering further, McNabola denies that these allegations are relevant to this proceeding.

23. On January 12, 2012, Judge St Eve entered a written opinion holding thatVandenbergs v. RQM, falls "squarely within the injunction's prohibition oninstituting or prosecuting any action in any Court or taking any legal proceedingswhatsoever other than this one," and ordered Respondent to "immediately ceaseany actions in furtherance of their prosecution of any claims arising out of theSeptember 1, 2009 accident."

Answer: Admitted. Answering further, McNabola denies that these allegations are relevant

to this proceeding.

24. On January 4, 2012, SmithAmundson LLC filed a complaint for declaratoryjudgment on behalf of Westfield Insurance against the Vandenbergs and RosePaving Company relating to the insurance coverage for Scott's [sic] September 1,2009 accident. The complaint alleged that Westfield, had issued an insurancepolicy to named insureds, including Rose Paving that was effective betweenJanuary 1, 2009 and January 1, 2010, but that Westfield owed neither a duty todefend nor a duty to indemnify Rose Paving because the charter yacht fallsoutside the scope of risks and liabilities for which the Westfield policy providesinsurance. The matter was docketed as Westfield Insurance Company v. RosePaving Company and Scott and Patty Vandenberg, 12CV00040 in the UnitedStates District Court for the Northern District of Illinois (hereinafter "the federaldeclaratory matter.") On January 16, 2012, Peter Morse (hereinafter "Morse")filed his appearance for the defendants the Vandenbergs.

Answer: Admitted upon information and belief, exceptRespondent denies Paragraph 24 to

the extent it is inconsistent with the allegations in the Westfield complaint, to which the Hearing

Board is respectfully referred for the contents thereof.

25. On or about August 31, 2012, Respondent filed his appearance in Vandenbergs v.Brusnwick [sic]. John W. Patton Jr. and John A. Ouska of Patton and Ryan LLCrepresented the defendant Brunswick.

Answer: Denied, except McNabola admits that MLG filed an appearance in the

Vandenberg v. Brunswick matter on August 31, 2012 after the federal action was resolved and

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the case was remanded to the Circuit Court of Cook County. Answering further, McNabola

states that in August 2012, Brunswick was represented by David Rammelt and Caroline Plater of

Reed Smith. Upon information and belief, John W. Patton, Jr. and John A. Ouska of Patton and

Ryan, LLC did not appear on behalf of the defendant Brunswick until on or about March 17,

2015.

26. On March 26, 2014, Respondent filed his appearance as lead attorney for theVandenbergs in the declaratory matter. At no time between January 2012 andMarch 2014, did the Vandenbergs give informed consent to pay the Morse firmadditional attorneys' fees to represent them in this matter.

Answer: Admitted as to the first sentence. Denied as to sentence two.

27. On October 10, 2012, the court entered an order dismissing by agreement theVandenbergs claims in Vandenbergs v RQM.

Answer: Admitted that the matter was dismissed pursuant to the settlement reached with

RQM for $2,365 million in cash and other valuable consideration.

28. Between July 2011 and October 12, 2012, Respondent contacted and engagedfour law firms to assist him in prosecuting matters relating to the Vandenbergs'claims, including Seiden, Alder & Matthewman, Peter Morse of Morse, Bolduc &Dinos, Kozacky & Weitzel, and Michael Rathsack. During that time, Respondentpaid those four firms the fallowings fees for the work they performed:

Seiden, Alder & Matthewman $94,599.01

Morse, Bolduc & Dinos $35,881.00

Kozacky & Weitzel $11,730.50

Michael Rathsack $46,074.02

Answer: Denied, except McNabola admits that MLG contacted and engaged these firms to

provide specialized and necessary consultation to assist MLG's representation of the

Vandenbergs, and advanced the fees charged by those firms. Answering further, McNabola

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states that he reasonably believed that the other lawyers' services were necessary and would

contribute to the competent and ethical representation of the client, and, accordingly, engaging

these firms was consistent with Rule of Professional Conduct 1.1 and Comments [6] and [7] to

that Rule, which state in relevant part:

[6] Before a lawyer retains or contracts with other lawyers outside thelawyer's own firm to provide or assist in the provision of legal services to a client,the lawyer should ordinarily obtain informed consent from the client and mustreasonably believe that the other lawyers' services will contribute to thecompetent and ethical representation of the client. See also Rules 1.2(e) andComment [15], 1.4, 1.5(e), 1.6, and 5.5(a). The reasonableness of the decision toretain or contract with other lawyers outside the lawyer's own firm will dependupon the circumstances, including the education, experience and reputation of thenonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; andthe legal protections, professional conduct rules, and ethical environments of thejurisdictions in which the services will be performed, particularly relating toconfidential information.

[7] When lawyers from more than one law firm are providing legalservices to the client on a particular matter, the lawyers ordinarily should consultwith each other and the client about the scope of their respective representationsand the allocation of responsibility among them. See Rule 1.2.

To the extent the Administrator alleges that the Vandenbergs' informed consent was mandatory

under the Rules before MLG engaged the other firms, McNabola denies the allegation, and

further denies that the Vandenbergs were unaware of or failed to provide informed consent.

29. At no time did the Vandenbergs sign a separate negotiated written fee agreementor give informed consent to pay additional attorneys' fees to any of the four lawfirms referenced in paragraph 28 above.

Answer: Denied, except McNabola admits that the Vandenbergs did not personally sign a

written fee agreement with the four firms. Answering further, McNabola states that he made Scot

fully aware pursuant to oral and written communications of the retention of these firms and that

the fees for their consultation would be treated as case expense. In addition, with regard to the

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Seiden law firm, the retainer agreement was provided to the Vandenbergs by the Seiden firm and

Scot authorized McNabola to hire that firm and to sign the retainer agreement on his behalf.

30. As a result of Respondent's September 21, 2010 fee agreement, Respondent wasobligated to perform all legal services related to the Vandenbergs' cause(s) ofaction related to Scot's September 1 injury without charging them fees above hiscontingent fee, unless the Vandenbergs gave informed consent to the additionalattorneys' fees and were afforded an opportunity for independent advice ofcounsel.

Answer: Paragraph 30 states legal conclusions to which no response is required. If and to

the extent a response it required, McNabola denies paragraph 30. Answering further, McNabola

states that, contrary to paragraph 30, the Engagement Agreement did not "obligate" Cogan &

McNabola to perform "all" legal services related to the Vandenbergs' claims, and by its terms

capped the "compensation for their services," i.e., the services of Cogan & McNabola, at 40%

(emphasis added), but did not preclude the engagement of other lawyers in specialized areas for

the benefit of the Vandenbergs. Furthermore, any agreement purporting to obligate a firm to

perform "all" legal services in a matter on behalf of a client and excluding the possibility of

engaging other counsel on specialized subject matter pursuant to Rule of Professional Conduct

1.1 would be improper and unenforceable. At no time has McNabola sought more than 33 1/3%

in legal fees as compensation for the services provided by the firm in this matter. In addition, the

Vandenbergs' personal attorney, David Anders, provided independent legal advice to the

Vandenbergs throughout the litigation concerning many matters including, upon information and

belief, the ongoing case expense obligations from which these specialized consulting attorneys

had been paid.

31. At no time after September 21 did Respondent explain to the Vandenbergs therelevant information required to have them consent to paying attorneys' fees in

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addition to Respondent's contingent fee out of the Vandenberg's portion of anysettlement or recovery obtained in the as a result of the September 1 incident, thatpursuant to custom and practice in the legal community other plaintiffs personalinjury lawyers would only charge the contingent fee; or explain other relevantfactors related to the fairness of his fee.


the extent a response it required, McNabola denies paragraph 31. To the extent paragraph 31

alleges a fact regarding purported custom and practice among personal injury attorneys,

McNabola denies the allegation.

32. [1] On October 14, 2012, the federal admiralty action was dismissed based upon asettlement between RQM and the Vandenbergs. [2] Under Respondent'sdirection, the Vandenbergs settled the federal admiralty action with RQM for theamount of $2,365,000.00. [3] Respondent caused a settlement statement to beprepared itemizing the disbursement of the settlement. [4] That settlementstatement provided that the McNabola Law Group was to receive fees one-third ofthe settlement proceeds for a total amount of $788,333.33 with $300,000 of thosefees deferred until the Vandenbergs reached a settlement with Brunswick. [5] Perthat settlement statement, Respondent received fees totaling $325,555.56($200,000 deferred) and Anders received referral fees totaling $162,777.77($100,000 deferred). [6] Respondent's settlement statement also provided that theVandenbergs were to reimburse the McNabola Law Group for "case expenses"totaling $379,940.21. [7] Almost half of those "case expenses," $188,284.53,included the following items:

8/12/2011 Seiden & Alder & Matthewman

Admiralty consultation$25,414.80

11/7/2011 Sedien [sic] & Alder & MatthewmanAdmiralty consultation

$11,102.75






Admiralty consultation$715.00

2/17/2012 Morse Bolduc & Dinos

Dec action counsel

$4,682.50

2/29/2012 Seiden Alder & McLeod Goodman


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4/17/2012 Kozakcy & Weitzel, PCAdmiralty consultation

$5,000.00




Dec action counsel

$2,590.00


Dec action counsel

$9,912.50

5/16/2012 Seiden Alder McLeod Goodman


5/30/2012 Kozacky & Weitzel, PCAdmiralty consultation

$6,730.50

6/15/2012 Seiden Alder McLeod Goodman

Admiralty consultation$202,98




Dec action counsel

$6,428.50


Dec action counsel

$7,108.50


Dec action counsel

$5,159.00



10/12/2012 Law Offices of Michael W. Rathsack

Appellate consultation$46,074.02

Answer: Sentence [1] is admitted. Sentence [2] is admitted, except that McNabola denies

that it accurately states the consideration for the settlement, which is described further below,

and further denies that the Vandenbergs settled the RQM matter "at his direction"; rather, the

matter settled after a day-long mediation with a retired judge, who recommended the settlement,

and McNabola and Morse and other members of the team also recommended the settlement to

Scot and Patricia Vandenberg. Both Vandenbergs, Peter Morse, Mark McNabola and other

members of the team were physically present at MLG offices for the mediation. Sentences [3]

through [7] are admitted. Answering further, the deduction for reasonable case expenses was

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made in good faith pursuant to terms of the duly executed written Engagement Agreement with

Scot Vandenberg and Patricia Vandenberg that provides for their responsibility for repayment of

case expenses, as ratified in the RQM Settlement Statement, and, as stated in the answer to

Paragraph 37 below, the Vandenbergs have not actually paid those expenses and will not be

charged for them. McNabola further states that the consideration for the RQM settlement

exceeded the cash payment of $2,365,000, which in itself exceeded the insurance policy limits

and included cash payments from the individual members of RQM. Mr. Morse, the coverage

counsel McNabola had engaged on behalf of and for the benefit of the Vandenbergs, with their

consent and knowledge, attended the mediation with Scot and McNabola, and had secured an

important benefit in the RQM Settlement that had huge potential upside for the Vandenbergs:

the individual principals of RQM agreed to an additional settlement amount of $25 million and

assigned to the Vandenbergs their rights to sue for coverage for the Vandenbergs' claims against

them. The coverage case Mr. Morse argued in the Seventh Circuit on behalf of and with full

knowledge and participation of Scot and Patricia Vandenberg, who attended the argument with

Mr. Morse, could have generated a potential $10 million payment to the Vandenbergs. After the

RQM settlement, MLG advanced and risked over $200,000 on behalf of the Vandenbergs to pay

for Morse's services. McNabola emailed Scot Vandenberg and his personal attorney, Anders, on

July 29, 2013, attaching Morse's summary judgment brief in the district court, and advising that

this case had a 30-50% chances of success but was "certainly worth the risk" to recover $10

million. On September 12, 2014, McNabola emailed Scot that Morse "expects to receive a

ruling whether the $10 million in insurance coverage applies sometime in 2015. His bill to date

totals $173,105.30." Significantly, that email also attached the reimbursable case expenses,

which the McNabola firm had already paid on behalf of Scot and Patricia Vandenberg as case

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expenses, accruing after the RQM settlement, which included Morse's fees, remaining fees of

admiralty counsel and those of other experts.

33. Pursuant to Respondent's September 21 fee agreement attorneys' fees are not caseexpenses. At no time between September 21, 2010 and October 28, 2012, didRespondent explain to the Vandenbergs that his contingent fee set out in the feeagreement did not include all attorneys' fees that the Vandenbergs would becharged for the litigation matters, or that the Vandenbergs were entitled toindependent counsel before agreeing to pay the attorneys' fees designated as"case expenses" totaling $188,284.53 which had been incurred by Respondent.


the extent a response it required, McNabola denies paragraph 33. To the extent paragraph

alleges argument regarding McNabola not "explaining" certain things to the Vandenbergs,

McNabola denies that he had any obligation to explain to the Vandenbergs inaccurate

interpretations of the fee agreement or incorrect statements of the law. Moreover, as stated

previously, McNabola communicated orally and in writing with the Vandenbergs regarding the

need for payment of these necessary case expense to include these consultants. In addition, the

Vandenbergs were also represented at all relevant times by their personal attorney, David

Anders.

34. At the time he was incurring the attorneys' fees for the other lawyers' services,Respondent did not explain to the Vandenbergs that the "case expenses" listed onthe RQM settlement statement totaling $188,284.53 were attorneys' fees and not"case expenses," as Respondent indicated on the settlement statement.


the extent a response it required, McNabola denies paragraph 34. To the extent paragraph 34



17

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interpretations of the fee agreement or incorrect statements of the law. Moreover, as stated

previously, McNabola communicated orally and in writing with the Vandenbergs regarding the

need for payment of these necessary case expenses to include these consultants, and the

Vandenbergs were also represented at all relevant times by their personal attorney, David

Anders.

35. At the time Respondent provided the Vandenbergs' [sic] his settlement statement,Respondent did not explain to the Vandenbergs that his interests in having thempay the outside attorneys' fees as "case expenses" were in conflict with theVandenbergs' interests in having the outside attorneys' fees deducted fromRespondent's contigent [sic] fee nor did Respondent obtain their informedconsent to pay the outside attorneys' fees in addition to Respondent's contingencyfee.


the extent a response it required, McNabola denies paragraph 35. To the extent paragraph



interpretations of the fee agreement or incorrect statements of the law.

36. Respondent's conduct in engaging other attorneys and agreeing that theVandenbergs would pay their fees out of the Vandenbergs [sic] portion of anysettlement or recovery overreached the attorney-client relationship.

ANSWER: Paragraph 36 states legal conclusions to which no response is required. If and to

the extent a response it required, McNabola denies paragraph 36.

37. The attorneys' fees which Respondent deducted from the Vandenberg's RQMsettlement of $976,617.86, which included Respondent's fee from his feecontract, Anders [sic] referral fees and the outside attorneys' fees as set out inparagraph 32 above, were unreasonable, excessive and contrary to the range offees provided for in Respondent's fee agreement with the Vandenbergs and above

18

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the fees customarily charged in the locality for similar legal services.Respondent's proposed contingency fee of 40% was also excessive.

Answer: Denied. Answering further, McNabola states thata contingency fee of 40% is not

only notexcessive in a risky case such as the oneat issue, it is not an uncommon rate charged by

attorneys in Cook County for similar legal services. Moreover, as stated above, McNabola,

without request from the Vandenbergs, caused MLG to voluntarily waive its contractual right to

be paid 40%, agreeing instead to charge 33 1/3%, and fiirther voluntarily agreed to defer

$300,000 of that reduced fee until conclusion of the Brunswick matter. As a result, the

Vandenbergs received $269,382.14 ($546,637.71 minus 277,255.57) more in cash from the

RQM Settlement than if McNabola had caused MLG to take the full contractual fee to which it

was entitled and to absorb the third-party attorneys' fees taken as case expenses, as the

Administrator alleges was required:

Settlement

Medical/WC Liens

Expenses

Att'y Specialists

Contingent Fee

Vandenberg Net

Actual Payoutto Vandenbergs

$ 2,365,000.00

($ 950,088.75)

($ 191,655.68)

($ 188,284.53)

($ 488.333.33)

$ 546,637.71

Payout if Full 1/3 FeeTaken With Credit

$ 2,365,000.00

($ 950,088.75)

($ 191,655.68)

($ 0)

f$ 788.333.33)

$ 434,922.24

Payout if 40%Fee Taken

$ 2,365,000.00

($ 950,088.75)

($ 191,655.68)

($ 0)

f$ 946.000.00)

$ 277,255.57

MLG has never been paid the $300,000 in deferred fees, and in the pending fee dispute in the

Vandenberg v. Brunswick matter, MLG has voluntarily agreed to deduct from any fee recovery

the $188,284.53 in disputed case expenses MLG paid to the admiralty, coverage and appellate

legal specialists. Accordingly, the Vandenbergs have never in fact paid those case expenses and

will never do so.

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

a. After accepting employment on behalf of a client,delegating to another lawyer not in the lawyer's firm theresponsibility for performing or completing thatemployment without the client's consent, in violation ofRule 1.2(e) of the Illinois Rule of Professional Conduct(2010);

b. Failure to promptly inform the client of any decision orcircumstance with respect to which the client's informedconsent is required, by conduct including failing to tell hisclients about his decision to retain assistance from outside

counsel and billing those attorneys' fees he incurred to hisclients as "case expenses" without having his clients sign aseparate negotiated written fee agreement, as required byhis own fee agreement with the Vandenbergs, in violationof Rule 1.4(a)(1) of the Illinois Rule of ProfessionalConduct (2010);

c. Failure to reasonably consult with the client about themeans by which the client's objectives are to beaccomplished, by conduct including failing to advise hisclients about his decision to retain outside counsel and

billing those attorneys' fees he incurred to his clients as"case expenses" without having his clients sign a separatenegotiated written fee agreement as required by his ownSeptember 21, 2010 fee agreement, in violation of Rule1.4(a)(2) of the Illinois Rule of Professional Conduct(2010);

d. Charging or collecting an unreasonable fee, by conductincluding, charging as "case expenses" outside lawyer feestotaling $188,284.53 in addition to his contingent fee, andin violation of the terms of his own contract, in violationof Rule 1.5(a) of the Illinois Rule of Professional Conduct(2010);

e. Entering into an arrangement for, charging, or collecting adivision of a fee between lawyers who are not in the samefirm without the client's written agreement, by conductincluding dividing the Vandenbergs' fee with attorneyDave Anders, without the Vandenbergs' knowledge of theshare of the fee that each lawyer would receive and their

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ANSWER:

f.

g.

written consent, in violation of Rule 1.5( e) of the Illinois Rules of Professional Conduct (2010);

Representing a client when there is a significant risk that the representation of the client will be materially limited by the lawyer's personal interests, by conduct including failing to explain to his clients that Respondent's financial incentives in having the Vandenbergs pay the outside attorneys' fees from their portion of any recovery or settlement was in conflict with the Vandenbergs' interest in deducting those additional fees from Respondent's contingency fee and overreaching the attorney-client relationship by changing the fee agreement after he was retained without informed consent of the Vandenbergs, in violation of Rule l.7(a)(2) of the Illinois Rules of Professional Conduct (201 O);

Entering into a business transaction with a client by changing his signed fee agreement with the Vandenbergs without transmitting the change in the fee agreement in writing in a manner that can be reasonably understood by the client and without informing the client in writing that the client may seek the advice of independent legal counsel on the transaction or affording the client a reasonable opportunity to do so and without obtaining informed consent to the terms of the transaction, in violation Rule 1.8(a) of the Illinois Rules of Professional Conduct (2010); and,

h. Conduct involving dishonesty, fraud deceit or misrepresentation, by conduct including billing the V andenbergs for outside attorneys' fees totaling $188,243.86 as "case expenses" when as expenses when those monies were attorneys' fees and not described in his fee contract as case expenses, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Denied, including each and every sub-paragraph (a)-(h) inclusive.

ANSWER TO COUNT II

Alleged Unreasonable Fee, Conflict of Interest and Dishonesty in Fee Agreement

39. The Administrator repeats and re-alleges paragraphs 1through37 of Count I.

21


ANSWER:

40.

ANSWER:

McNabola realleges his answers to paragraphs 1 through 37 of Count I.

After the federal admiralty action concluded, the court lifted its stay in the state court matter, Vandenbergs v. Brunswick which could then proceed. Between December 2012 and August 2015, Respondent continued to consult and seek assistance from the law firm of Morse Bolduc & Dinos on insurance coverage issues and paid that firm additional fees totaling $244, 182.16 relating to the declaratory action, intending to deduct those fees from the Vandenbergs' portion of recovery, rather than from his own share of proceeds he recovered for the Vandenbergs as a "case expense."

Denied, except that McNabola admits the first sentence; that MLG, with the full

knowledge and consent of Scot and Patricia Vandenberg, continued to consult with Peter Morse

in person and in writing and MLG continued to advance the fees of the Morse firm of

$244, 182.16 to pursue the potential $10 million recovery for the Vandenbergs as stated earlier;

and that McNabola viewed such fees as case expenses to which MLG had a right to deduct from

a future recovery.

41.

ANSWER:

Sometime on or before August 11, 2015, Respondent asked attorney Barry Montgomery (hereinafter, "Montgomery") of Williams Montgomery & John, formerly "Williams & Montgomery,") the same firm that had represented Rose Paving in the litigation matter filed by the V andenbergs against RQM and Rose Paving in state court, to perform legal work on issues in Vandenbergs v. Brunswick. At no time did the Vandenbergs sign a separate negotiated written fee agreement or give informed consent to pay additional attorneys' fees to Montgomery or his law firm, nor did they consent to paying those attorneys' fees as "case expenses" related to their matter. At no time did the V andenbergs waive any conflict that had arisen between them and Montgomery as a result of his laws firm's prior representation of the defendant Rose Paving in Vandenbergs v. RQM, nor did Respondent advise them that a conflict existed or have them sign an informed consent to representation by Montgomery.

Denied (including the allegation that Montgomery's law firm's pnor

representation of Rose Paving created a conflict for Montgomery, because pursuant to Rule

l.9(a), a conflict with a former client arises only where the interests of the current client are

"materially adverse" to the interests of the former client, which was not the case in 2015), except

22


as follows. McNabola admits that he did not advise the Vandenbergs that Montgomery's

representation of them was conflicted, but because there was no such conflict, he denies that he

had any obligation to render such advice or any other incorrect statements of the law. McNabola

further admits that, with the Vandenbergs' consent, he asked Montgomery to represent the

Vandenbergs in connection with Brunswick's attempts to renege upon and vacate the $25 million

settlement McNabola had negotiated with Brunswick on June 9, 2015; and that, upon

information and belief, the Vandenbergs did not sign a separate fee agreement with Montgomery

or his firm. Answering further, McNabola states that MLG paid all of Montgomery's legal fees

on behalf of the Vandenbergs and has agreed to absorb those costs. To the extent Paragraph 41

states legal conclusions, no response is required. If and to the extent a response it required,

McNabola denies such legal conclusions.

42.

ANSWER:

Between August 11, 2015 and March 1, 2016, Respondent paid attorneys' fees to Williams Montgomery & John totaling $456,995.73 for the work Montgomery performed in matter Vandenbergs v. Brunswick, largely in connection with postsettlement issues that arose as a result of Respondent's conduct described in Count III below.

Admitted, except McNabola denies that the post-settlement issues "arose as a

result of Respondent's conduct," and denies that the fees were paid by him, as opposed to MLG.

Answering further, McNabola states that MLG's engagement of Montgomery as additional

counsel for the Vandenbergs was appropriate, reasonable and in the best interest of the

Vandenbergs. Additionally, the post-settlement issues did not arise out of McNabola's conduct,

but as a result of a wholly unforeseeable and unique series of events, including (i) a rogue clerk

who, unbeknownst to McNabola, did not communicate information to both sides of the case; (ii)

judicial error by a judge allowing a jury to engage in moot deliberations after a case had been

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dismissed pursuant to a settlement; and (iii) judicial error by a biased judge whose rulings were

vacated by his successor, whose vacatur was in tum unanimously upheld by the Appellate Court.

43.

ANSWER:

At no time did Respondent have the Vandenbergs sign a separate negotiated fee agreement with Morse Bolduc & Dinos, or William[s] Montgomery & John, nor did Respondent obtain the Vandenbergs' informed consent to pay additional attorneys' fees above Respondent's contingent fee to any other lawyer.

Denied, except McNabola admits that the Vandenbergs did not sign separate fee

agreements with the Morse or Williams firms (neither of which sought to enter into a separate

fee agreement with the Vandenbergs), but denies any implication that the Vandenbergs did not

know about or consent to their representation by each of those firms and the advancement of

their fees by MLG, as stated above. Answering further, McNabola states that MLG paid the fees

because it determined that the services were necessary to protect the Vandenbergs' interests and

the bills were reasonable. To the extent paragraph 43 states legal conclusions, no response is

required. If and to the extent a response it required, McNabola denies paragraph 43

44. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a.

b.

After accepting employment on behalf of a client, delegating to another lawyer not in the lawyer's firm the responsibility for performing or completing that employment without the client's consent, in violation of Rule l.2{e) of the Illinois Rule of Professional Conduct (2010);

Failure to promptly inform the client of any decision or circumstance with respect to which the client's informed consent is required, by conduct including failing to tell his clients about his decision to retain assistance from outside counsel and billing those attorneys' fees he incurred to his clients as "case expenses" without having his clients sign a separate negotiated written fee agreement, as required by his own fee agreement with the Vandenbergs, in violation

24


c.

d.

e.

f.

g.

of Rule 1.4(a)(l) of the Illinois Rule of Professional Conduct (2010);

Failure to reasonably consult with the client about the means by which the client's objectives are to be accomplished, by conduct including failing to advise his clients about his decision to retain outside counsel and billing those attorneys' fees he incurred to his clients as "case expenses" without having his clients sign a separate negotiated written fee agreement as required by his own September 21, 2010 fee agreement, in violation of Rule l.4(a)(2) of the Illinois Rule of Professional Conduct (2010);

Charging or collecting an unreasonable fee by conduct including charging as case expenses outside lawyer fees totaling $681,179.89 in addition to his contingent fee, in violation of Rule 1.5(a) of the Illinois Rule of Professional Conduct (201 O);

Entering into an arrangement for, charging, or collecting a division of a fee between lawyers who are not in the same firm without the client's written agreement, by conduct including dividing the Vandenbergs' fee with attorney Dave Anders, without the Vandenbergs' knowledge of the share of the fee that each lawyer would receive and their written consent, in violation of Rule l.5(e) of the Illinois Rules of Professional Conduct (201 O);

Representing a client when there is a significant risk that the representation of the client will be materially limited by the lawyer's personal interests, by conduct including failing to explain to his clients that Respondent's financial incentives in having the V andenbergs pay the outside attorneys' fees from their portion of any recovery or settlement was in conflict with the Vandenbergs' interest in deducting those additional fees from Respondent's contingency fee and overreaching the attorney-client relationship by changing the fee agreement after he was retained without informed consent of the Vandenbergs, in violation of Rule 1. 7(a)(2) of the Illinois Rules of Professional Conduct (201 O);

Entering into a business transaction with a client by changing his signed fee agreement with the Vandenbergs without transmitting the change in the fee agreement in writing in a manner that can be reasonably understood by

25


ANSWER:

45.

ANSWER:

46.

ANSWER:

47.

the client and without informing the client in writing that the client may seek the advice of independent legal counsel on the transaction or affording the client a reasonable opportunity to do so and without obtaining informed consent to the terms of the transaction, in violation Rule l.8(a) of the Illinois Rules of Professional Conduct (201 O); and,

h. Conduct involving dishonesty, fraud deceit or misrepresentation by conduct including billing the outside attorneys fees totaling $681,174.89 as expenses when those monies were attorneys' fees and not described in his fee contract as case expenses, in violation oflRPC 8.4(c)

Denied, including each and every sub-paragraph (a)-(h) inclusive.

ANSWER TO COUNT III

Alleged Dishonesty to the Court, Material Omissions during Settlement Negotiations, Ex-parte Communications with a Court Official and Failure

to Communicate with his Clients

The Administrator repeats and re-alleges paragraphs 1-43, above.

McNabola realleges his answers to paragraphs 1-43 above.

After the federal case RQM settlement, the litigation proceeded against Brunswick et al, in the Vandenbergs v. Brunswick state court matter.

Admitted.

On April 6, 2015, the parties participated in a mediation led by former Cook County Circuit Court Judge Donald P. O'Connell. The day-long mediation culminated in an offer of $3,000,000 by Brunswick's insurer, American International Group (hereinafter, "AIG"), and a demand of $39,000,000 by the Vandenbergs. Charles Patitucci, Senior Complex Director of Excess Casualty Claims of AIG Property Casualty, (hereinafter "Patitucci,") participated in the mediation for AIG, and Respondent participated on behalf of the Vandenbergs. Attorneys for Brunswick were not present and did not participate in the mediation.

26


ANSWER: Denied. Answering further, McNabola states that the offer of $3,000,000 was the

self-insured retention from Brunswick; accordingly, AIG, Brunswick's excess carrier, made a

smaller lump-sum cash contribution. There were a number of other parties present. In addition,

Patitucci announced and mandated that he alone would negotiate on behalf of Brunswick from

that point forward and that plaintiffs should not engage in any settlement discussions with any of

the attorneys for Brunswick.

48. On or before April 6, 2015, the Vandenbergs had given Respondent authority to settle their claims against Brunswick for $17 million.

ANSWER: Denied. Answering further, McNabola states that on April 6, 2015, the

Vandenbergs agreed with MLG's evaluation that if Brunswick offered close to $17 million, that

MLG would recommend that the offer be accepted. Before April 6, 2015, the demand on behalf

of the Vandenbergs was $45 million. McNabola denies any implication that such authority

continued beyond the mediation, and states further that Scot testified in October 2015 that

McNabola did not have $17 million of settlement authority after the mediation ended ..

49.

ANSWER:

On or about April 6, 2015, Judge O'Connell assessed the liability portion of the Vandenbergs' case against Brunswick as weak, and informed Respondent of his assessment.

Denied. On April 1, 2015, MLG submitted extensive mediation submissions to

Judge O'Connell. On April 6, 2015, at the conclusion of the day, Judge O'Connell expressed his

disappointment and extended his apologies to the Vandenbergs, stating that Brunswick/AIG was

not prepared to negotiate even though the mediation was initiated by them. Answering further,

McNabola states that communications by Judge O'Connell regarding the merits of case are

irrelevant.

27


50.

ANSWER:

Sometime, between April and May 2015, Respondent engaged DecisionQuest, a trial consulting firm, to mock try the Vandenbergs' case against Brunswick twice. DecisionQuest's jury consultant, like Judge O'Connell, assessed the liability in the Vandenbergs' case as weak.

Denied, including the allegation that DecisionQuest and Judge O'Connell

informed MLG that it or he had concluded or assessed the V andenbergs' case as weak, except

that McNabola admits that MLG engaged DecisionQuest to mock try the case.

51.

ANSWER:

Vandenbergs v. Bnmswick did not settle at the mediation and, therefore, proceeded to trial before the Honorable Elizabeth Budzinski.

Admitted. Answering further, McNabola states that enormous effort and costs

were expended to prepare the case for trial, and Patitucci and McNabola on behalf of the

Vandenbergs agreed that settlement discussions would remain open.

52.

ANSWER:

Between May 10, 2015 and June 9, 2015, the trial proceeded with respect to Brunswick's liability to the Vandenbergs. Although RQM remained a named defendant in the case, the issue of RQM's liability had been resolved and RQM had been released in the federal admiralty action. Respondent and his colleague Ruth Degnan (hereinafter, "Degnan") represented the Vandenbergs. Attorneys John Patton and John Ouska of Patton & Ryan represented Brunswick.

The first sentence is admitted. The second sentence is denied. The third sentence

is admitted, except McNabola denies any implication that the named attorneys were the only

attorneys participating in the trial. McNabola and Degnan were assisted by Attorneys Terry

Nofsinger, Attorney Ted Jennings and MLG paralegals and other staff. Patton and Ouska were

assisted by a team of lawyers from Patton and Ryan as well as Kimberly Kearney, an admiralty

specialist from Clausen Miller and Kelly Kaiser, corporate counsel for Brunswick. Brunswick

also employed a team of six to eight mock jurors who were present in the gallery and took notes

each day of trial. Answering further, McNabola states that RQM was not a named defendant

28


after October 10, 2012, but due to the application of maritime law, its relative fault would be an

issue for the jury to assess.

53.

ANSWER:

The events described in paragraphs 54 to 77 below, take [sic] place on June 9, 2015 in the trial relating to Vandenbergs v. Brunswick.

McNabola incorporates his answers to paragraphs 54 to 77 below as to whether

the events took place as described.

54. On June 9, 2015, the parties presented closing arguments. Respondent requested a verdict in favor of Plaintiffs for $103 million. The court instructed the jury that "[i]f you fmd for Brunswick on the question of liability, you will have no occasion to consider the question of damages." At 2:30 p.m. jurors began their deliberations.

ANSWER: Admitted. Answering further, McNabola states that the court gave the jury

detailed instructions on all of the legal issues and did not highlight the instruction quoted in

paragraph 54 over any other instruction, and the quoted instruction is from a pattern instruction

given m any case.

55.

ANSWER:

Sometime between 2:45 p.m. and 3:00 p.m., while the jury deliberated, Patitucci, extended to Respondent a high-low settlement offer as follows: $41.5 million for the high end and 7 .5 million for the low end.

Denied, except McNabola admits that at approximately 3:00 p.m., outside the

elevators of the 21st floor of the Daley Center, Patitucci approached McNabola and substantially

increased Brunswick's last settlement offer to $25 million and added the alternative high-low

option at the amounts alleged.

56. Respondent, without communicating the high-low settlement offer described in paragraph 55 above to the Vandenbergs, immediately rejected the offer and told Patitucci "We have nothing to talk about."

29


ANSWER: Denied. Further answering, McNabola states that he told Patitucci that he would

discuss the offers with the Vandenbergs.

57.

ANSWER:

Immediately after Respondent rejected the high-low settlement offer, Patitucci extended a lump sum settlement offer of $25 million. Respondent did not immediately accept this offer.

Denied, except McNabola admits that Patitucci extended the lump sum settlement

offer of $25 million at the same time he extended the high-low alternative offer, and that

McNabola did not immediately accept or reject either offer. Answering further, McNabola states

that he told Patitucci that he would discuss the alternative offer with his clients. Patitucci told

McNabola that he could be reached at the offices of Patton and Ryan. McNabola did not accept

or reject any offer at that time because he had no authority to do so. The last offer was a result of

the exhaustive and excellent trial work of MLG and its five years of investment in the case. AIG

had increased the settlement proposal by a factor of eight over the preceding four days,

increasing Brunswick's $3 million offer at the April mediation to, successively, $7.5 million and

$12.5 million, culminating in an offer of $25 million or a high-low offer of $41.5 million for the

high end and 7.5 million for the low end. McNabola discussed each offer with the Vandenbergs

and the response to each offer was authorized by the V andenbergs.

58.

ANSWER:

After rejecting the high-low and receiving the $25 million offer, Respondent met the Vandenbergs on the ground floor of the courthouse, spoke with them briefly, and informed them of the offers. Scot and Patty directed Respondent to accept the $25 million offer. At that time, Respondent declined to follow his clients' direction, but instead suggested that they all return to his office to discuss Patitucci's offer.

Denied, including the allegation that the Vandenbergs directed McNabola to

accept the $25 million offer at or outside the courthouse, except that McNabola admits that after

30


receiving the offers from Patitucci, he met the V andenbergs, as planned, outside the courthouse

near the comer of Randolph and Dearborn, informed them that there had been a serious offer of

$25 million and an alternative high-low offer, and recommended that they return to his office to

discuss the offers.

59.

ANSWER:

Around 3:15 p.m. on June 9, 2015, Respondent and the Vandenbergs arrived at Respondent's office. At about 3:40 p.m., following further discussion with Respondent, the Vandenbergs again directed Respondent to accept Patitucci's $25 million offer. As of 3:50 that afternoon, Respondent had not accepted the offer.

Denied, except that McNabola admits that (i) he and the Vandenbergs arrived at

McNabola Law Group's offices at or later than 3:15 p.m. on June 9, 2015; (ii) Patricia

Vandenberg left the office to buy a soft drink for Scot at Scot's request; (iii) while waiting for

Patricia Vandenberg's return, McNabola discussed Brunswick's new alternative offers for

several minutes with his co-counsel to obtain their input and recommendation, and they agreed

with McNabola's conclusion to recommend acceptance of the $25 million offer to the

Vandenbergs and rejection of the high-low alternative; (iv) he next met with the Vandenbergs to

discuss the new terms relayed by Patitucci (including the high-low option) and other aspects of

the structure, including consideration of the potential $103 million verdict which would result in

a potential loss to the Vandenbergs of $78 million as compared with the $25 million offer, but

unequivocally advised the Vandenbergs to give him authority to accept the $25 million lump-

sum option that was offered; (v) at or near 3:50, after their discussions with McNabola, the

Vandenbergs, for the first time, agreed with McNabola's recommendation to grant him authority

to reject the high-low offer, to explore Patitucci's authority to settle between $25-$30 Million

and to accept the $25 million offer if there was no additional settlement authority from AIG; and

(vi) as of 3:50 p.m. McNabola had not relayed the Vandenberg's acceptance to Brunswick

31


because he had only just received the authority to do so. McNabola further denies any

implication or suggestion that he failed to follow his clients' directions regarding settlement or

delayed in relaying their acceptance or was distracted by any other matters, and notes that the

entire time between receiving Patitucci's new alternative offers in the hallway, meeting the

Vandenbergs on the street, returning to the MLG office, discussing the offer with his colleagues,

discussing the offer with the Vandenbergs and obtaining their agreement with his professional

recommendation to accept, took no more than approximately fifty minutes, all without any

knowledge of a jury question or its content.

60.

ANSWER:

61.

ANSWER:

At approximately 3:50 PM, the jury sent a note to Judge Budzinski. The jury note asked, in full: "Can we find fault with RQM without finding fault with Brunswick?" After looking at the jury note, Judge Budzinski directed her clerk, Tatiana Agee, (hereinafter "Agee") to call both parties' lawyers to come to chambers.

Admitted, upon information and belief, but not direct knowledge.

At 3:52 PM, Agee contacted Respondent by telephone. Agee advised Respondent that the jury had a note, as well as the content of that note.

Admitted. Answering further, McNabola states that at the conclusion of the trial

both he and defense counsel had given their telephone numbers to Ms. Agee, per the court's

instruction, which commonly occurs when a jury begins deliberations, so that the clerk could

contact both sides as needed.

62. When Agee advised Respondent of the content of the jury's question, Respondent considered that the jury was contemplating a verdict in favor of Brunswick and that if that verdict was returned, the V andenbergs would not be awarded any damages against Brunswick. Respondent told Agee to "hold off, don't do anything yet, I'm going to try to settle this." Respondent also suggested to Agee that the answer to the jury's question should be "No."

32


ANSWER: Denied in its entirety, and McNabola further denies the allegation that the content

of the question influenced McNabola's request to the Judge for some time before coming to

court. Answering further, McNabola states that he asked Agee to inform the Judge that the

parties were about to settle the case and asked her to ask the Judge if they could hold off on

coming over to court for a few minutes, after which McNabola was on hold for a few seconds

and Agee returned to the phone and replied that his request was approved by the Judge. This is

consistent with the account provided by Brooke Reynolds: that the Court's answer to Agee

regarding McNabola's request for some time was "that's fine" as long as Mr. Patton is aware.

63. At approximately 3:55 PM, Respondent called Patton's office looking for Patitucci. Respondent left a message stating only that "the jury is out." At 3:56 PM, Respondent called Patitucci's cell phone and left another message. Neither message indicated that the Vandenbergs had accepted Brunwick's [sic] settlement offer.

ANSWER: Denied, except McNabola admits that he called Patton's office at approximately

3:55 looking for Patitucci as instructed by Patitucci, and his messages did not relay the

Vandenbergs' acceptance on voicemail or to the receptionist at Patton's office.

64.

ANSWER:

At 4:01 pm Respondent spoke with Agee and told her he could not reach the person he needed to speak to about the settlement. He asked for further instructions. Agee told Respondent that Judge Budzinksi wanted the parties to return to court.

Denied, except McNabola admits that he asked Agee to inform the Judge that he

could not reach Patitucci and to ask the Judge for further instructions.

65. At 4:03 PM Respondent reached Patitucci by phone. Instead of advising Patitucci that the Vandenbergs had accepted the $25 million offer, Respondent demanded $30 million to settle the Vandenbergs' claims. Patitucci rejected Respondent's counter demand and Respondent then requested $27.5 million to settle the claim. When Patitucci advised Respondent that his authority was limited to $25 million,

33


ANSWER:

and that it would take days or weeks to obtain the authority required to increase Brunswick's settlement offer, Respondent finally accepted Brunswick's $25 million dollar offer.

Denied, except that McNabola admits that he reached Patitucci by phone at 4:03

p.m., that with the Vandenbergs' full knowledge and authority, and without rejecting the offer,

he explored whether AIG would pay $30 million and then $27.5 million. When Patitucci

confirmed that he did not have authority above $25 million, McNabola conveyed the

V andenbergs' acceptance of the $25 million settlement offer. The Circuit Court of Cook County

and a unanimous panel of the Illinois Appellate Court held that McNabola's acceptance created a

binding and enforceable settlement agreement as of June 9, 2015 that ultimately resulted in the

net payment of nearly $20 million to the V andenbergs, with the balance held in escrow pending a

dispute between MLG and the Power and Kralovec firms as to the allocation of the one-third

contingent fee among the law firms, which is currently pending before Judge O'Hara.

66.

ANSWER:

At the time that Respondent advised Patitucci that his clients accepted Brunswick's $25 million settlement offer, Respondent did not inform Patitucci that there was a jury note, or that Respondent was aware of the contents of that jury note.

Admitted, but McNabola denies any implication that he had any duty to inform

Patitucci of the existence or content of the jury note. The Illinois Appellate Court held that he

had no duty to inform Brunswick (his opponent). McNabola further denies any suggestion that

the existence or content of the jury note was material to the settlement, an implication belied by

the conduct of the parties and the holdings of the Circuit and Appellate Courts, as it is undisputed

that:

34


a. After closing arguments, at about 3 p.m., before there was any jury question, Brunswick

made an unconditional offer to settle the case for $25 million.

b. After closing arguments, at approximately 3:50 p.m., before there was any jury question,

the Vandenbergs authorized McNabola to accept Brunswick's unconditional $25 million

offer.

c. After learning the jury's question, at about 3:55 p.m., McNabola contacted Brunswick to

relay the Vandenberg's acceptance of the unconditional $25 million offer, and conveyed

the acceptance at about 4:03 p.m.

d. After learning the jury's question at about 4:30 to 4:40 p.m., analyzing the question and

discussing it among at least three attorneys for Brunswick, Charlies Patitucci and his out-

of-state superiors, Brunswick still chose to settle the case for $25 million and formally

consented on the record to the settlement and to the dismissal of the case pursuant to the

settlement.

In sum, both parties chose to settle (a) when they did not know what the question said, and (b)

when they did know what the question said. The question was immaterial to the parties' decision

to settle, as the Illinois Circuit and unanimous Appellate Courts held.

67. At 4:11 PM, Patitucci called Patton, the lead attorney for Brunswick, and informed him of the settlement but not of the fact of the jury note or its contents because Patitucci was unaware of the same.

ANSWER: McNabola has no knowledge sufficient to form a belief as to the allegation of

paragraph 67.

68. Between 4:10 and 4:15 PM, Respondent talked to Agee, who called him back at Judge Budzinksi's request. Respondent asked to speak to Judge Budzinski.

35


ANSWER:

Respondent told Judge Budzinski that the case had settled and that neither Respondent nor defense counsel were interested in the contents of the jury's note or anything more about the trial. Judge Budzinski told Respondent that the parties still needed to appear in her chambers. Respondent did not tell Judge Budzinski that Agee had already advised him of the contents of the jury note.

Denied, including the allegation that McNabola said that "neither side" was

interested in the content of the question, except that McNabola admits that he spoke with Agee

between approximately 4: 10 and 4: 15 when she had called him back, that he asked to speak to

Judge Budzinski and directly informed the Judge that the case had settled. When the Judge said

that she wanted counsel to come to court to discuss the question, McNabola responded to her by

stating that the note was irrelevant in light of the settlement. The Judge nevertheless said she

wanted counsel for the parties to return to chambers. McNabola, having no reason to believe that

Brunswick had not been provided with the same information he had received from the Court,

neither told the Judge that Agee had read him the jury question nor said or implied anything to

the contrary.

69. Respondent's statement to Judge Budzinski that neither counsel was interested in the content of the note was false and misleading because Respondent implied that he did not know the note's content when, in fact, he already knew the content of the note and had not spoken to defense counsel about the note therefore he was not aware whether defense counsel knew of the note or its contents.

ANSWER: Denied. Answering further, McNabola states that he did not say that

"neither counsel was interested in the content of the note," and that he had no reason to believe

that Brunswick had not been provided with the same information he had received from the Court.

He said nothing to imply that he did not know the note's content.

36


70. Respondent knew that his statements to Judge Budzinski described in paragraph 69 above were false and misleading at the time he made them.

ANSWER: Denied.

71. After her conversation with Respondent, described in paragraph 68 above, Judge Budzinski instructed Agee to call Patton and advise Patton that the court had been informed of the settlement, but because there was an unpublished jury note, Patton needed to appear in chambers.

ANSWER: McNabola has no knowledge sufficient to form a belief as to the allegations of

paragraph 71.

72. Between 4:15 p.m. and 4:19 p.m., Respondent called Patton and told him that the case had settled. During that conversation the attorneys discussed Patton's request to have the jury continue to deliberate. Respondent's [sic] objected to that request. At no time during his conversation with Patton did Respondent inquire as to whether Patton knew of the jury note and its content.

ANSWER: Denied, except McNabola admits that he returned a missed call from Patton at

approximately 4: 18, and admits that the jury note was not discussed. Answering further,

McNabola admits that the attorneys discussed Patton's request to have the jury continue to

deliberate and admits further that McNabola objected to Patton's request. McNabola denies any

implication that he deliberately did not inquire as to the content of the note or that he had any

duty to inquire. McNabola had no reason to believe that Brunswick had not been provided with

the same information he had received from the Court.

73. At 4: 19 PM, Agee called Patton and told him about the jury's note.


paragraph 73.

37


74.

ANSWER:

At 4:40 p.m., attorneys for both parties went to Judge Budzinski's chambers. Judge Budzinski expressed her surprise at the time counsel took to return to court after being notified of the jury note. The contents of the jury note were then read to both sides lawyers. Defense counsel requested that the jury be allowed to deliberate to verdict. Judge Budzinski granted that request over plaintiffs counsel's objections and sent a note to the jury, in which Judge Budzinski answered the jury's question, instructing them to "continue to deliberate."

Admitted upon information and belief, except McNabola denies that the

conference began at 4:40 p.m. In fact, all counsel had gathered in chambers by approximately

4:30 p.m. Cell phone records confirm that Degnan called McNabola at approximately 4:35 p.m.

on a speaker phone, in the presence of the Judge and all counsel, to respond and to inform the

Court that Patton was falsely asserting to Judge Budzinski (relayed through Ouska) that

McNabola had agreed to allow the jury to continue deliberating despite the settlement.

McNabola and Degnan (who had heard the conversation with Patton on McNabola's speaker)

confirmed that they had not agreed to Patton's request and that the Vandenbergs objected to the

jury continuing deliberations in light of the settlement agreement.

75.

ANSWER:

At 4:50 PM, the judge entered an order dismissing Vandenberg v. Braunswick [sic] which read as follows: "This matter is dismissed pursuant to the settlement of the parties. The court to retain jurisdiction to enforce the settlement and adjudicate liens." Counsel for both parties were present at the time the order of dismissal was entered.

Admitted, except, upon information and belief, the settlement recorded at 4:50

p.m. was recorded orally on the record with a court reporter in Judge Budzinski's chambers in

the presence of the Judge and all counsel. The written order, quoted above, was entered several

minutes later after the Judge conferred with the jury and informed the jury of the settlement and

dismissal of the case.

38


76.

ANSWER:

At the time the order of dismissal was entered, neither Judge Budzinski nor counsel for Brunswick knew that Respondent had been aware of the contents of the jury note when he agreed to the $25 million settlement.

McNabola has no knowledge sufficient to form a belief as to the state of

knowledge of Judge Budzinski or Brunswick's counsel, and denies that he agreed to the $25

million settlement; as stated above, he recommended to the V andenbergs that they accept the $25

million offer and they authorized him to do so, without any knowledge of a jury question or its

content, and he relayed that acceptance at 4:03 p.m. pursuant to his clients' instructions.

Answering further, McNabola states that he did not supervise or monitor the Court's or Agee's

performance of their jobs and had no reason to believe that the Court or Agee would not do their

jobs in a timely manner. McNabola did not (and had no reason to) ask Judge Budzinski or

Brunswick's counsel whether Agee had read the content of the note to Brunswick, and he did not

state or imply to the Judge or counsel for Brunswick that Agee had not read him the content of

the note before he relayed the Vandenbergs' acceptance to Brunswick. McNabola had no reason

to believe that Brunswick had not been provided with the same information he had received from

the Court. Answering further, McNabola denies any implication that he knew or believed that

Agee or the Court had not made a similar to call to Brunswick's counsel immediately before or

after calling him, that he had a duty to perform due diligence on whether Agee or the Court was

performing their jobs adequately by calling both sides, or that he had a duty to discuss with

Brunswick the content of Agee's unsolicited call to him. The Illinois Appellate Court confirmed

that he had no such duty.

77. At 5 :00 PM the jury returned a verdict in favor of Brunswick.

39


ANSWER: Denied, as the case had been dismissed and no "verdict" was rendered or entered.

Answering further, McNabola states, upon information and belief, that Judge Budzinski and

Agee entered the jury room and informed the jury of the settlement and the dismissal of the case

and, without polling the jury, dismissed the jurors without accepting any verdict. Upon

information and belief, the Court also failed to take possession of the verdict form signed by the

jurors John Patton, counsel for Brunswick, without the knowledge of the Court or MLG, took the

original verdict form from the courthouse. MLG learned that Brunswick's counsel had taken

possession of the original verdict form approximately a week later when the Court asked counsel

for Brunswick to return the original form to the Court after she read about counsel's possession

of the verdict form in the Chicago Daily Law Bulletin.

78.

ANSWER:

On June 12, 2015, Brunswick filed a motion to vacate the settlement and for entry of a judgment on the jury's verdict on the grounds of fraud and mistake.

Admitted that such a motion was filed, but denied that the motion had merit or

was filed in good faith (and the grounds of the motion were ultimately rejected by Judge O'Hara

and the unanimous Appellate Court affirmance ), that there was ever a jury verdict, and that there

was any fraud or mistake. Answering further, McNabola states that Brunswick was attempting

to renege on the settlement in light of the fictional "verdict," and because the only basis for

vacating the settlement under Illinois law would be to prove fraud or mistake, Brunswick was

hoping through this motion, to build such a claim.

79. On June 15, 2015, Judge Budzinski filed a memorandum of the court detailing her understanding and recollection of the events of June 9, 2015.

40


ANSWER: Admitted that such a memorandum was filed, but McNabola denies the accuracy

and admissibility of the memorandum. Further, upon information and belief, the memorandum

was created several days after the events described therein.

80.

ANSWER:

On June 26, 2015, Brunswick filed a motion to vacate the settlement agreement and enter judgment on the jury's verdict. The basis for defendant's motion to vacate was that Brunswick did not know the existence of a jury note, or its contents, at any time before Respondent and Patitucci agreed on a settlement amount, and that Respondent induced the court clerk, Agee, to delay informing Brunswick's counsel of the jury note so that Respondent could negotiate a settlement before Brunswick's counsel learned of the contents of the jury's note.

McNabola admits that on June 26, 2015, Brunswick filed a Motion to Vacate the

Order of Dismissal Pursuant to 735 ILCS 5/2-1301(e), but denies that Motion (as opposed to the

June 12, 2015 motion) sought to vacate the settlement agreement and enter judgment on the

jury's verdict. McNabola denies that the Motion had merit or was filed in good faith. McNabola

denies that he induced Agee in any way to delay informing Brunswick's counsel of the jury note.

Specifically, and contrary to the claims and hopes in Brunswick's motion to vacate, both

Brunswick's attorneys and Patitucci were fully aware of the jury note and its contents before

they agreed to the settlement on the record and before they agreed to dismiss the case pursuant to

the settlement. In addition, the settlement amount was based upon an unconditional offer of $25

million made by Brunswick and agreed to by the Vandenbergs (with instructions to McNabola to

accept) before the jury question existed.

81. On or about June 26, 2015, Respondent, without consulting his clients or obtaining informed consent, advised the Vandenbergs that Montgomery would represent them in Vandenbergs v. Brunswick. Respondent did not explain to the Vandenbergs that issues had arisen in Vandenbergs v. Brunswick as a result of Respondent's conduct in reaching the settlement agreement because he was the only lawyer who was aware of the content of the jury's note or that Montgomery

41


ANSWER:

had a conflict about which they were unaware. Respondent did not withdraw from his representation of the Vandenbergs in Vandenbergs v. Brunswick.

Denied, except that McNabola admits that he fully informed the Vandenbergs of

his recommendation to engage Montgomery and his team as additional counsel for them, that he

fully explained to them the reasons for his recommendation, that they consented to the

engagement, and that he did not withdraw from his representation of the Vandenbergs (but

denies any suggestion that he had a duty to withdraw at that time). McNabola further fully

informed the Vandenbergs that Brunswick had filed a motion to vacate the settlement based on

its claim that Brunswick was unaware of the jury note, and claims of fraud and mistake.

82.

ANSWER:

Between June 26, 2015 and February 2016, Montgomery and lawyers at his firm provided legal advice to Respondent regarding the post-settlement issues that arose in Vandenbergs v. Brunswick.

Denied. Answering further, McNabola states that Montgomery represented the

Vandenbergs, not McNabola or MLG, regarding the post-settlement issues. Answering further,

McNabola states that communications between MLG and Montgomery were pursuant to their

joint representation of the Vandenbergs, and in part involved MLG providing necessary factual

background to Montgomery based on its five-year and continuing representation of the

V andenbergs.

83. On February 20, 2016, Scot emailed Respondent and terminated Respondent's representation.

ANSWER: Admitted, and the Hearing Board is respectfully referred to the email for the

contents thereof, which stated:

42


Mark,

This is definitely the hardest thing I've had to do in the last six and Half years. I am turning the case over to somebody new. Can you please prepare a statement of finances to date. And can I send somebody in your office to get a copy of my file?

Scot Vandenberg

Answering further, McNabola states that he had informed Scot in late January 2016 that Scot

should obtain substitute counsel, that McNabola and Anders flew to Naples, Florida on or about

February 2, 2016 to meet with Scot Vandenberg, at his home to discuss potential substitute

counsel, and that McNabola interviewed candidates for successor counsel.

84.

ANSWER:

At no time prior to March 2016 did Respondent explain to the Vandenbergs that a conflict of interest existed when Montgomery represented both the Vandenbergs and provided legal advice to Respondent in Vandenbergs v. Brunswick because the issues post settlement arose due to allegations relating to Respondent's conduct in his representation of the Vandenbergs, nor did Respondent advise them of the conflict due to Montgomery's prior representation of Rose Paving.

Denied. Answering further, McNabola denies that Montgomery had the alleged

conflict, and states that Montgomery did not represent McNabola or McNabola Law Group in

this matter and represented only Scot and Patricia Vandenberg; that McNabola and MLG had no

counsel in the proceedings prior to March 2016; that Judge Lynch had excluded McNabola from

the evidentiary hearing; and that McNabola ultimately retained separate counsel (Richard

Devine) to attempt to intervene in the matter, but his intervention motion was denied.

85.

ANSWER:

On February 20, 2016, about an hour and a half after being discharged, Respondent emailed Scot and claimed that the Vandenbergs owed Respondent's firm "approximately $900,000" in "case expenses."

Denied, except McNabola admits that in response to Scot's request, quoted in the

answer to paragraph 83 above, that McNabola "prepare a statement of finances to date" on the

43


case, McNabola replied by email in relevant part that "I will send you a copy of our written

contract and an approximation of the current case expense. It goes without saying that I will do

whatever is reasonable to protect you and your family." McNabola further admits that shortly

thereafter, in response to Scot's request for a tally of case "finances," McNabola wrote another

email stating: "The current case expense for which we have written checks on your behalf is

approximately $900,000. In addition, you owe our firm $200,000 in fees we deferred from the

first [RQM] settlement. Lastly, pursuant to our written agreement, you owe us payment for

uncompensated legal work by our legal team for over 5 years either by contingency or hours

dedicated to you[r] case at $450 per hour ... I am always available to talk whenever you want."

The previous sentence referred to a provision of the Engagement Agreement that said: "In the

event that I request [MLG] to withdraw as my attorney prior to the resolution of my claim, suit,

settlement, or otherwise, I hereby agree to pay [MLG] at the rate of four hundred fifty ($450.00)

per hour or their customary hourly rate for the time which they have spent in connection with my

claim, or thirty-three and one-third percent (33 1/3%) of the amount being offered by parti(es)

responsible and/or their insurers at the time of the request to withdraw which ever is greater."

86.

ANSWER:

As a result of Brunswick's motion to vacate the settlement agreement and enter judgment on the verdict, on July 27, 2015, Judge Budzinski recused herself from the Vandenbergs v. Brunswick case. Judge Daniel J. Lynch was assigned to the case.

McNabola admits that Judge Budzinski recused herself and that Judge Daniel

Lynch was assigned to the case. McNabola has no knowledge sufficient to form a belief as to

the reasons for Judge Budzinski' s recusal, except he states on information and belief that she did

so because she might be called as a witness to testify if an evidentiary hearing was to be held.

44

I I I I I [

I I I I I I I I I I I I I

87.

ANSWER:

Between October 15, 2017 and October 27, 2017, Judge Lynch held evidentiary hearings on Brunswick's motion to vacate. Respondent, Degnan, Patitucci, Patton, Kearney (appellate counsel for Brunswick,) Agee, Reynolds and the Vandenbergs testified at the hearings.

Admitted, except McNabola states that the year was 2015, not 2017, an additional

witness testified at the hearing, and Kearney was a maritime specialist and admiralty counsel for

Brunswick, not appellate counsel.

88.

ANSWER:

On January 19, 2016, Judge Lynch issued an oral opinion in Vandenbergs v. Brunswick rescinding the purported settlement agreement. In his ruling, Judge Lynch determined that, based upon the evidence he had received during the hearing, Patitucci had the authority to reject the settlement and would have done so "if he knew any one of the following: The existence of the note, the contents of the note, or that [Respondent] knew of both."

McNabola admits that on January 19, 2016, Judge Lynch issued an oral opinion

that made erroneous factual findings and unsupported legal conclusions, that was later vacated

by Judge O'Hara's order of December 20, 2016, and is, therefore, a nullity. McNabola denies

the Administrator's characterizations of the vacated opinion to the extent they are inconsistent

with the opinion itself, and denies the quoted finding by Judge Lynch, which was not only

erroneous and vacated, but was contradicted by the rulings of Judge O'Hara and the Appellate

Court, which held that the content of the jury question was immaterial to the settlement.

89.

ANSWER:

On May 19, 2016, Judge Lynch entered an order in Vandenbergs v. Brunswick finding in favor of Brunswick and against the Vandenbergs. As a result of this order, the Vandenbergs would have received nothing for their claims for damages against Brunswick.

Denied, except McNabola admits the first sentence and admits that Judge Lynch's

ruling was erroneous, was later vacated by Judge O'Hara's final order of December 20, 2016,

which was affirmed by the First District Appellate Court. The Vandenberg case ultimately

45


settled for $29.4 million, consisting of the $25 million settlement negotiated by McNabola and

upheld by the Courts, plus interest.

90.

ANSWER:

91.

ANSWER:

Respondent's conduct in Vandenbergs v. Brunswick in failing to advise the court, opposing counsel or Patitucci that he was aware of the contents of the jury noted [sic], delayed his client's receipt of their settlement funds.

Denied.

On June 24, 2016, the Vandenbergs through their again retained counsel, Kralovec, Jambois & Schwartz filed a motion to have Judge Lynch recuse himself in the matter or to have him disqualified. The motion cited Judge Lynch's alleged bias against the plaintiffs due to the conduct of their former counsel, Respondent, and the court's failure to ensure they received adequate representation. Judge Lynch recused himself from further proceedings and the case was reassigned to the Honorable James O'Hara.

Denied, except McNabola admits that the Vandenbergs, through new counsel,

filed the recusal motion, that the recusal motion correctly stated that Judge Lynch was biased

against McNabola, who had been excluded from the evidentiary hearing along with his trial

team, barred from reviewing transcripts, and had been unrepresented by counsel. The recusal

motion contained inaccurate assertions as well, including that the Vandenbergs had not been

adequately represented. McNabola admits that Judge Lynch denied the recusal motion but

recused himself anyway from any further involvement in the case, after which the case was

reassigned to Judge O'Hara.

92. On October 25, 2016, the Vandenbergs filed a motion to vacate the court's January 19, 2016 oral opinion and its May 26, 2016 orders.

46


ANSWER: Admitted, except that the motion was filed October 21, 2016, not October 25, and

that on June 27, 2016, the Vandenbergs had filed a detailed post-trial motion that sought, inter

alia, to vacate Judge Lynch's erroneous rulings and reinstate the settlement.

93.

ANSWER:

On December 20, 2016, after briefing and oral argument on the motion to vacate described in paragraph 97 [sic] above, Judge O'Hara entered an order vacating the judgment entered in favor of Brunswick and all orders entered after June 9, 2015 that were inconsistent with the court's December 20, 2016 order, and reinstated · the settlement agreement.

Admitted, except the cross reference should be paragraph 92, and the Hearing

Board is respectfully referred to Judge O'Hara's order for the full contents thereof.

94.

ANSWER:

95.

ANSWER:

96.

ANSWER:

97.

ANSWER:

On January 18, 2017 Brunswick filed a motion to vacate the court's order or in the alternative for clarification.

Admitted.

On February 14, 2017, the court entered an order denying Brunswick's January 18, 201 7 motion.

Admitted, except that the order was entered February 15, 2017, not February 14.

On February 15, 2017 the court entered final judgment m favor of the Vandenbergs in Vandenbergs v. Brunswick.

Admitted.

On March 1, 2017, Brunswick appealed the court's February 15, 2017 order entering judgment for the Vandenbergs referred to in paragraph 95 above.

Admitted, except that the cross-reference should be to paragraph 96.

47

I I I I. I I I I I I I I I I I I I I I

98. On November 17, 2017, the First District, First Division Appellate Court issued its opinion in the appeal from Vandenberg v Brunswick affirming the judgment in favor of the Vandenbergs entered by the Circuit Court and referred to in paragraph 95 [sic] above and determined that:

[R]escission of the settlement would do an injustice to plaintiffs ... who had 'clean hands' in the jury note matter and formed their intent to accept the settlement offer prior to Agee's 3:52 p.m. call to McNabola. In fact, had McNabola relayed acceptance of Brunswick's offer immediately after plaintiffs informed him of it at 3:40 p.m., the parties would have entered into a valid settlement prior to the court receiving the jury note at approximately 3:50 p.m. with no mistake as grounds for rescission.

ANSWER: Admitted, except the cross reference should be paragraph 96. Answering further,

the foundation for Judge Lynch's erroneous rulings and biased commentary against McNabola

was developed during the evidentiary hearing. Judge Lynch barred McNabola and his trial team

from being present or reviewing transcripts during the evidentiary hearing thereby preventing

McNabola from actively representing the Vandenbergs during the hearing. Answering further,

McNabola notes that the 3:40 time referenced by the Appellate Court was supplied by Power and

Kralovec, and was based on Scot's erroneous estimate. The actual time, as noted in the answer

to paragraph 59, was at or near 3:50 p.m. McNabola also respectfully refers the Hearing Board

to the opinion of the Appellate Court for the full contents thereof, including the holding of the

Court in relevant part that:

• "the rules of professional conduct cannot give rise to McNabola's duty to speak, the

violation of which served as the basis of Brunswick's fraudulent concealment claim.

Without establishing that duty, Brunswick cannot prove fraudulent concealment as a

means to vacate the parties' settlement agreement." i\34.

48


• "In summary, we find that under the facts of this case McNabola did not have a duty to

inform Brunswick about the jury note." if40.

99. By reason of the conduct described above, Respondent has engaged m the following misconduct:

a. Failure to provide competent representation to a client by conduct including, rejecting the high-low settlement offer without conveying it to his clients, and not promptly accepting the $25 million settlement offer made by the defense to settle the case, in violation of Rule 1.1 of the Illinois Rules of Professional Conduct (2010);

b. Failure to abide by his client's decision to settle a matter by conduct including, failing to timely accept the $25 million settlement offer, rejecting the high-low offer without talking to his clients, and by delaying the settlement of the case by waiting to talk to Patitucci to request a $30 million settlement without his clients' permission to do so, in violation of Rule l.2(a) of the Illinois Rules of Professional Conduct (2010);

c. Failure to promptly inform his client of any decision or circumstance with respect to which the clients' informed consent as defmed in Rule 1.0( e) is required by conduct including rejecting the high-low settlement without talking to his clients, failing to timely explain to his clients that his conduct in failing to timely disclose his knowledge of the jury note caused issues in their case including Brunswick's contest of the settlement, in violation of Rule l.4(a)(l) of the Illinois Rules of Professional Conduct (2010);

d. Failure to reasonably consult with the client about the means by which the clients' objectives are to be accomplished, by conduct including, failing to tell his clients immediately about the high-low settlement offer before he rejected it, failing to timely explain to his clients that his conduct in failing to timely disclose his knowledge of the jury note caused issues in their case including Brunswick's contest of the settlement, in violation of Rule 1.4 (a)(2) of the Illinois Rules of Professional Conduct (2010);

e. Failure to keep the client reasonably informed about the status of the matter, by conduct including, failing to timely explain to his clients that his conduct in failing to timely disclose his knowledge of the jury note caused issues in their case including Brunswick's contest of the settlement, in violation of Rule l .4(a)(3) of the Illinois Rules of Professional Conduct (201 O);

49


ANSWER:

f.

g.

h.

1.

Failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, by conduct including, failing to request his client's authority to request a settlement in excess of the $25 million settlement that his clients' had directed him to accept, and his conduct in failing to timely disclose his knowledge of the jury note caused issues in their case including Brunswick's contest of the settlement, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (201 O);

Communicating ex parte with a judicial official, by means prohibited by law without authorization of the court, by conduct including inducing Agee to read Respondent the content of the jury note without all parties' present and without the judge's consent and without disclosures to all parties, in violation of Rule 3 .5(b) of the Illinois Rules of Professional Conduct (201 O);

Knowingly making material omissions of fact, by conduct including failing to disclose to Patitucci, Patton, and the Court Respondent's knowledge of the content of the jury note, both before and after settlement negotiations and before the order dismissing the case was entered, in violation of Rule 4.1 of the Illinois Rules of Professional Conduct (201 O); and,

Conduct involving dishonest, fraud, deceit, or misrepresentation, by the conduct including, failing to apprise Patitucci, Patton and the court of his advance notice of the content of the jury note in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Denied, including each and every sub-paragraph (a)-(i) inclusive. Answering

further, McNabola states that the Administrator's allegation of violations of the Rules rest on

numerous facts and conclusions that are false, unsupported by evidence, and/or contrary the

rulings of the Circuit Court and the Appellate Court, including the following false premises: (i)

that McNabola knew that Agee had not done her job and informed Brunswick of the note or its

contents; (ii) that McNabola believed that the content was material to Brunswick's willingness to

settle; (iii) that McNabola pretended he was unaware of the content in order to somehow prevent

the note from being revealed to Brunswick; and (iv) that McNabola believed he could thereby

stop the Judge from informing Brunswick of note's content before the case was dismissed per the

50


Settlement. Not only are these facts false and implausible, they are rebutted by the findings of

the Circuit Court and the Appellate Court that the note's content was immaterial. Both sides

viewed the note as immaterial to the settlement. Accordingly, McNabola's duty was to explore

the limits of Patitucci's settlement authority and convey his clients' acceptance of the $25

million offer, which he discharged faithfully, resulting in an enforceable $25 million settlement

on June 9, 2015, and a net payment of nearly $20 million to the Vandenbergs

ANSWER TO COUNT IV

Alleged False Statements to the Tribunal in case number 10L3l18 Vandenberg v. Brunswick

100. The Administrator repeats and re-alleges paragraphs 45 through 98 of Count III.

ANSWER: McNabola realleges his answers to paragraphs 45 through 98.

101. On June 15, 2015, Respondent filed a pleading entitled "plaintiffs response to defendant's motion to vacate settlement agreement." In that pleading, Respondent stated the following:

ANSWER:

Even if we assume the clerk did inform Mr. McNabola about the content of the jury's note, that did not create any duty on his part to inform Brunswick's representatives of that information ...

Given the mere existence of a question of unknown content had no particular significance and that Mr. McNabola did not tell the clerk not to call Patton or that she did not need to do anything further. ..

McNabola admits that on June 16, 2015 (not June 15, as alleged), his firm filed a

pleading entitled "Plaintiffs' Response to Defendants' Motion to Vacate the Settlement

Agreement," and that the quoted language appears in the pleading. McNabola respectfully refers

the Hearing Board to the pleading for the entire contents thereof. Answering further, McNabola

states that the pleading nowhere asserted or implied that Agee had not read McNabola the note.

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Rather, the thrust of the pleading was that no evidentiary hearing was necessary because it did

not matter whether or not Agee had read McNabola the note, because the note was immaterial to

the validity of the settlement, since Brunswick made the offer and the Vandenbergs decided to

accept before and without knowledge of the note, and Brunswick voluntarily agreed to the

settlement after learning of the content of the note. That is precisely what Judge O'Hara and the

Appellate Court ultimately held. The quotations quoted above are lifted out of context.

Accordingly, in contending that the note was immaterial and no hearing was warranted, the

pleading argued that if the note had not been read to McNabola, the settlement was valid, and if

it had been read to McNabola, the settlement was valid.

102. Respondent's statements in the responsive pleading referenced in paragraph 101 above and filed with the Court, were false and misleading because the jury note did not pose a question of "unknown content" and "no assumption" needed to be made about Respondent's knowledge of the content of that note as Respondent knew what the jury note said when he filed the motion referred to in paragraph 101.

ANSWER: Denied. Answering further, McNabola states that Judge Budzinksi's

memorandum of June 15, 2015 had been provided to the parties the day before the response brief

was filed, and the memorandum stated that Brooke Reynolds had informed the Judge on June 10,

2015 that she had overheard Agee read the question to McNabola. In that context, the statements

in the brief were not and could not have been false or misleading to anyone.

103. Respondent knew the statements he made on June 15, 2015 were false and misleading at the time he made them because he knew that he had not told the court or opposing counsel that he knew the notes' contents prior to settlement and dismissal of the case.

ANSWER: Denied.

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104.

ANSWER:

By reason of the conduct described above, Respondent has engaged m the following misconduct:

a. Knowingly making a false statement of fact to a tribunal, by conduct including, signing and filing the pleading titled "plaintiff's response to defendant's motion to vacate settlement agreement," in which Respondent claimed not to have known the contents of the jury note at the time the settlement agreement was entered into the court, in violation of Rule 3.3(a)(l) of the Illinois Rules of Professional Conduct (201 O); and

b. Conduct involving dishonest, fraud, deceit, or misrepresentation, by conduct including filing a false responsive pleading in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Denied, including each and every sub-paragraph (a)-(b) inclusive.

ANSWER TO COUNT V

Allegedly Knowingly Assisting Another to Violate the Rules of Professional Conduct by Facilitating Financial Assistance from his Father to his Client, Kinally

Conflict of Interest by Suing his Former Client, Kinally, to Recover Monies Paid to her as Financial Assistance by his Father

105. On March 3, 2003, Carol Kinally (hereinafter "Kinally") sustained injuries when while she was working, the vehicle she was driving collided with another vehicle at the intersection of Addison Street and Normandy Avenue in Chicago. On April 23, 2003, Respondent and Kinally agreed that Respondent would represent Kinally in her personal injury claim against the driver of the other vehicle, John Bader (hereinafter "Bader") and in an underinsured motorist claim through Hartford Insurance (hereinafter "Hartford"), her employers' insurance policy. Respondent and Kinally agreed that Respondent would receive 33 113% of any amount recovered as his attorney's fee if the case was settled before a lawsuit was filed or 40% if a lawsuit was filed or the case was sent to arbitration, and that Respondent would be reimbursed for costs he incurred in representing Kinally in connection with the Bader personal injury litigation.

ANSWER: Admitted, except for the repeated misspellings of "Kinnally" here and elsewhere

in the Complaint and McNabola denies that the fee terms were payable to him. Kinnally

engaged the firm and agreed to pay a contingent fee to the firm. Answering further, McNabola

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states that most of the alleged events concerning Kinnally occurred between twelve and fifteen

years ago, and McNabola has made a good faith effort to reconstruct events in order to respond.

While there is no statute of limitations applicable to disciplinary complaints, he notes that Illinois

law imposes a two-year statute of limitations on civil claims against lawyers, in part because of

the prejudice that the passage of time exerts on a party's ability to defend a case. It is unfair and

inappropriate for the Administrator to present charges on alleged events that allegedly occurred

so long ago.

106. In addition to her personal injury claim and underinsured motorist claim, as a result of the fact that the injuries occurred during the course of her employment, Kinally also had a workers compensation claim, which Respondent referred to attorney Marc Stookal (hereinafter "Stookal"). Stookal proceeded to pursue a workers' compensation matter on Kinally's behalf. Stookal and Kinally entered into a separate fee agreement, governed by the provisions of workers compensation law. The workers compensation case was captioned Kinally v. MCL Development and was assigned case number 04WC016966 (hereinafter the workers' compensation matter").

ANSWER: McNabola has no knowledge sufficient to form a belief as to the truth of the

allegations of paragraph 106, as the alleged events took place about fifteen years ago, except he

admits that Cogan & McNabola, P.C. often referred workers compensation matters to Stookal,

and that Stookal represented Kinnally in her workers compensation matter.

107. On August 18, 2003, Respondent filed a complaint on Kinally's behalf in the Circuit Court of Cook County against Bader. The matter was captioned Kinally v. Bader and was assigned matter number 2003L009940 (hereinafter "the personal injury matter").

ANSWER: Admitted, except the complaint was filed by McNabola's firm, not McNabola.

108. On August 20, 2003, Respondent sent formal notice to Hartford that Kinally would be seeking compensation from them, under an under-insured motorist insurance policy her employer carried with Hartford. The matter proceeded to

54


arbitration and was captioned Carol Kinally v. The Hartford, and was assigned case number 07095AAG (hereinafter the "under-insured matter").

ANSWER: Admitted. except for the misspelling of Kinnally.

109. By reason of the trust and confidence that Kinally placed in Respondent pursuant to the attorney-client relationship, Respondent stood in a position of a fiduciary to Kinally. As such, Respondent owed Kinally the fiduciary duties attendant to the attorney-client relationship, including the duty to perform the requested services with the highest degree of honesty, fidelity, and good faith, a duty of undivided loyalty, a duty to avoid placing himself in a position where one client's interests would conflict with the interests of another client, and a duty of care.

ANSWER: McNabola admits that he owed fiduciary duties to Kinnally, and denies paragraph

109 to the extent it misstates those duties.

110. As a result of the attorney-client relationship with Kinally, Respondent was aware of significant personal information relating to Kinally, including information relating to her personal finances.

ANSWER: Denied, except McNabola admits that the firm's file regarding Ms. Kinnally had

certain personal information about her, including some financial information, and Ms. Kinnally

had told McNabola that she had financial distress and she intended to borrow funds from a

commercial lender to help pay for living expenses.

111. In 2003, during the time Respondent represented Kinally in the personal injury matter and the under-insured matter, Kinally sought a litigation loan from a commercial lawsuit lender, with the repayment of that loan being contingent upon a financial recovery in her personal injury lawsuit. Kinally informed Respondent of her need for funds during the pendency of her case and informed Respondent that she was going to seek a loan from a commercial lawsuit lender.

ANSWER: McNabola has no knowledge sufficient to form a belief as to the first sentence of

paragraph 111, except that he admits that at some point after 2003, during the time MLG

represented Kinnally, she told McNabola that she had financial distress and asked McNabola for

55


a loan, which he declined, informing her that governing ethical rules precluded him from doing

so; and he admits that Kinnally told McNabola at some point during MLG's representation of her

that she intended to borrow funds from a commercial lawsuit lender to pay for living expenses.

112. In 2003 after Kinally conferred with Respondent about her need for funds as described in paragraph 111 above, Respondent recommended Kinally call his father, William F. McNabola, M.D., (hereinafter "Dr. McNabola") who would provide her financial assistance in the form of a loan and for a lower interest rate than the rate she had been offered by the commercial lawsuit lender. Respondent told Kinally that he was not permitted to loan Kinally any funds directly, but that his father could loan her the funds. Respondent told Kinally if she went to his father she would not have to pay an "exorbitant" interest rate. Respondent believed the loan would be advantageous to his father who could earn a 10% return on his investment. At all times, Kinally believed that the repayment of any loan from Dr. McNabola was conditioned upon a recovery in her personal injury matter.

ANSWER: Denied, except McNabola has no knowledge sufficient to form a belief regarding

Kinnally's purported belief as set forth in the last sentence, and McNabola admits that at some

point over twelve or more years ago: (i) Kinnally requested a loan from McNabola and he

informed her that a lawyer cannot loan a client funds because it is against the Rules of

Professional Conduct; (ii) she asked whether it was a good idea for her to go to a commercial

lender and asked McNabola for his help and to recommend a source for lawsuit loans; (iii) he

advised her, accurately, that it was his understanding that the rates of such lenders were very

high; (iv) he suggested she consider borrowing from private individuals at a lower and more

favorable rate to her; (v) McNabola told her that the terms of the loan agreement would be

negotiated between Kinnally and the individual lender because he could not be involved in

setting the terms; and (vi) he gave her names of potential private individual lenders, including

his father, Dr. McNabola, a retired physician. Answering further, McNabola states that he was

56


attempting to help Ms. Kinnally, who claimed to be in dire financial straits, and neither he nor

MLG lent or received any money as a result of these loan arrangements she made.

113. At no time between 2003 and July 2006, did Respondent explain to Kinally that his interests in having his father repaid the loans were in conflict with his interests in representing Kinally with undivided fidelity. At no time between 2003 and July 2006, did Respondent transmit to Kinally in writing information about the transaction with his father, Kinally's right to seek advice of independent counsel, nor did he obtain her informed consent to this transaction and Respondent's role in the matter.

ANSWER: McNabola denies the conflict and, therefore, the obligation to take the alleged

steps or make the alleged explanation.

114. At all times between 2003 and 2006, Dr. McNabola had an office in physical space of Respondent's law firm.

ANSWER: Denied, except that McNabola admits that during the alleged time period, Dr.

McNabola (commonly known to the MLG staff and friends as "Doctor Mac"), a retired surgeon

of over fifty years, who died in 2016, came into the firm's offices on a part-time basis, initially to

take care of his practice and later primarily for company, to read newspapers and pass the time,

and was permitted use of an empty office from which, upon information and belief, he managed

his various personal and business matters.

115. Between November 2003 and July 2006, Kinally obtained the following amounts from Dr. McNabola at the following interest rates:

Date Amount Interest Rate

11117/03 $7,500 10% per annum

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1/13/04 $2,000 10% per annum

10/19/04 $1,500 10% per annum

4/29/05 $20,000 10% per annum

8/26/05 $10,000 10% per annum

1017105 $10,000 10% per annum

12/15/05 $10,000 10% per annum

417106 $10,000 10% per annum

515106 $2,000 10% per annum

7126106 $10,000 10% per annum

Total: $83,000


paragraph 115, but upon information and belief, McNabola does not contest that Kinnally

borrowed the above sums from Dr. McNabola on or about the alleged dates at the 10% interest

rate.

116. In each of the loans referenced in paragraph 115 above, Kinally signed a promissory note drafted and witnessed by employees of Respondent's office, each of which contained the following clause: "The amount outstanding (including accrued interest) shall be due and payable upon the settlement or verdict of the litigation currently pending in the Circuit Court of Cook County, entitled Carol Kinally v. Bader, case no. 03 L 009940."

ANSWER: Denied, except that McNabola admits upon information and belief, that Kinnally

appears to have signed promissory notes that include the quoted language and that employees of

the law firm gave limited clerical assistance to Dr. McNabola in preparing the promissory notes

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and witnessed Kinnally's signature on two of the ten notes. Answering further, McNabola states

that eight of the notes bear no signature of a witness.

117. At no time during the loan transactions did Kinally meet or deal with Dr. McNabola. All the checks Kinally received transmitting loan funds referenced in paragraph 115 above, were messengered to Kinally by employees of Respondent's office including Respondent's secretary, Tracy Battistoni.


paragraph 117, except he admits, upon information and belief, that Dr. McNabola wrote checks

from his own personal funds and that some personal checks from Dr. McNabola may have been

messengered to Kinnally by employees of MLG. Answering further, McNabola denies any

implication that he provided any loan to Kinnally from his or MLG's funds or received any

repayment or any benefit from any loans made by Dr. McNabola or anyone else to Kinnally.

118. The loans referenced in paragraph 115 above, constituted financial assistance to a client in connection with pending litigation.

ANSWER: Denied.

119. On or about March 16, 2004, Kinally agreed to settle the personal injury case for the sum of $100,000. On or about May 17, 2004, Kinally executed a "partial settlement statement" prepared at Respondent's direction. The partial settlement statement indicated that the "total reimbursement of case expense" was "none" and the statement indicated that "case expense to be held over until resolution of under-insured motorist claim resolved." Kinally received a net distribution of $25,000 from the personal injury matter.

ANSWER: Admitted, and McNabola respectfully refers the Hearing Board to the settlement

statement for the entire contents thereof, including the fact that McNabola, without request from

Kinnally, voluntarily caused his firm to accept half of the $40,000 fee to which it was then

entitled, and was paid $20,000. Answering further, McNabola states that he also voluntarily

59


caused his firm to defer to a later date Kinnally's obligation to repay case expenses advanced on

her behalf. This voluntary reduction of the fee and deferral of case expense was for the sole

benefit of Ms. Kinnally.

120. On November 30, 2004, the underinsured matter proceeded to arbitration and an arbitration award was entered in favor of Kinally in the amount of $460,672.00. The Hartford insurance policy contained a provision that an award under that insurance policy would be reduced by sums paid by anyone who was legally responsible, and sums paid under workers' compensation benefits.

ANSWER: Admitted, except McNabola denies paragraph 120 to the extent it misstates the

contents of the Hartford policy, to which the Hearing Board is referred for the contents thereof.

Answering further, McNabola states, upon information and belief, that the Hartford policy

provided that collateral source payments, including workers compensation benefits, would be set

off from any arbitration award.

121. At the time of the arbitration for the under-insured matter, Kinally was still receiving medical treatment for her injuries, and her employer continued to cover her medical expenses pursuant to the Workers' Compens_ation Act.

ANSWER: Admitted.

122. The funds awarded to Kinally during the arbitration for the under-insured matter referred to in paragraph 120, above, were held by Hartford until Kinally completed treatment so that Hartford could determine the full amount of the setoff, as referenced in paragraph 120 above.

ANSWER: Admitted.

123. In September 2011, the workers compensation matter settled for the sum of $215,000. Additionally, from 2003 through 2011, Kinally received temporary total disability benefits in the amount of approximately $420,000.

ANSWER: Admitted, upon information and belief.

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124. Thereafter, Hartford declined to pay the amount awarded to Kinally during the arbitration of the underinsured matter referred to in paragraph 120, above, because the workers' compensation benefits awarded and additional medical expenses paid exceeded the amount of the arbitration award, under the insurance policy, Hartford was not responsible for any more payments to Kinally.

ANSWER: Admitted. Answering further upon information and belief, Hartford was not

legally responsible to pay the UIM arbitration award according to the terms of the insurance

policy.

125. At no time did Kinally pay the $83,000 to Dr. McNabola that he had loaned to her, referred to in paragraph 115 above, nor did she pay him any interest on those funds.


126. On November 9, 2011, Dr. McNabola through an attorney named Richard M.

ANSWER:

Carbonara, filed a complaint against Kinally in the Chancery Division of the Circuit Court of Cook County. The matter was captioned McNabola v. Kinally and was assigned matter number 2011CH38923 (hereinafter "chancery matter.") Judge Mary Ann Mason presided over the chancery matter. Dr. McNabola's complaint requested that the court order Kinally to pay back the $83,000 Dr. McNabola had loaned to Kinally, plus interest.

Admitted, upon information and belief.

127. The chancery complaint filed on Dr. McNabola's behalf, alleged that Kinally had secured her indebtedness to Dr. McNabola by pledging the proceeds of her personal injury lawsuit, but that it "subsequently became clear that the cause of action best suited to address her ills" was the workers compensation matter. The complaint further alleged that because Kinally refused to repay Dr. McNabola's loans and had "dissipated the funds at issue," Dr. McNabola had suffered irreparable injury had no adequate legal remedy and an accounting was warranted to determine the extent of Kinally's "dissipation of the funds intended by the parties to repay Dr. McNabola's generosity."

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ANSWER: McNabola admits that the chancery complaint was filed, but denies the accuracy

of the quoted language.

128. On or about May 30, 2012, Attorney Carbonara was granted leave to withdraw from representation of Dr. McNabola in the chancery matter pursuant to a previously filed motion to withdraw.


129. On October 19, 2012, McNabola Law Group, P.C. was granted leave to file its appearance and substitute as attorneys for Dr. McNabola in the chancery matter.

ANSWER: Admitted. Answering further, McNabola states upon information and belief that

Karen Enright, who was then affiliated with the firm Winters, Enright, Salzetta & O'Brien, had

previously substituted in as counsel for Dr. McNabola, and that when Ms. Enright became

affiliated with MLG as a partner in or about October 2012, she caused MLG to file an

appearance for Dr. McNabola.

130. At the time the chancery matter was filed, Kinally was Respondent's former client. The chancery matter was substantially related to the matter in which Respondent had formerly represented Kinally since the case involved repayment of financial assistance advanced to Kinally in the personal injury matter and Kinally's interests were materially adverse to Dr. McNabola's interests in the chancery matter.

ANSWER: The first sentence is admitted. The remainder of paragraph 130 alleges legal

conclusions to which no response is required. To the extent a response is required, such

allegations are denied, including the incorrect allegation that McNabola had advanced funds or

provided financial assistance to Kinnally "in the personal injury matter" or otherwise.

131. At no time did Respondent obtain informed consent from Kinally to represent Dr. McNabola in the chancery matter against Kinally.

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ANSWER: Paragraph 131 alleges legal conclusions to which no response is required, except

McNabola admits, upon information and belief, that no attorney at MLG procured consent from

Kinnally before Enright caused MLG to substitute on behalf of Dr. McNabola in order to

continue her representation of him. To the extent a response is required, such allegations are

denied, including the implication that obtaining informed consent was required or that McNabola

represented his father.

132. Thereafter, McNabola Law Group, P.C. represented Dr. McNabola against Kinally, its former client, until the conclusion of the matter on December 27, 2012.

ANSWER: Admitted.

133. On December 27, 2012, Judge Mary Anne Mason held a hearing on cross motions for summary judgment previously filed in the chancery matter. The plaintiffs motion alleged that Dr. McNabola should be paid the sums owing on the notes. The defendant's motion alleged that the notes were "contrary to public policy and unenforceable" because the loans were initiated by Respondent, were implemented and processed by Respondent's employees, and that because Dr. McNabola had an office in Respondent's law firm, and never met Kinally, he consequently was an alter-ego for Respondent.

ANSWER: The first sentence is admitted. The second sentence contains characterizations of

positions asserted in court, which are denied to the extent they are inconsistent with the positions

asserted. McNabola denies that he initiated the loans, that his employees implemented and

processed the loans, and that Dr. McNabola was an alter ego of McNabola or MLG. Answering

further, McNabola states that he took no part in this lawsuit, that he loaned no money to and

received no loan payments from Kinnally; and that Enright was then a partner of MLG who was

responsible for this matter.

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134. On December 27, 2012, Judge Mason denied the plaintiffs motion for summary judgment and granted defendant's motion for summary judgment holding that the promissory notes were "contrary to public policy and unenforceable." In rendering her ruling, Judge Mason stated as follows that "Lawyers cannot circumvent our ethical obligations by finding some loophole, and I think that if we allow close family members to act as surrogates to give loans to our clients ... we are opening a Pandora's Box of problems."

ANSWER: McNabola admits, upon information and belief, that Judge Mason commented as

alleged and that the quoted language appears in her ruling. McNabola denies that he or MLG

circumvented ethical obligations or allowed his father to act as a surrogate to make a loan to

Kinnally. Answering further, McNabola states that at no time did he loan any personal or law

firm funds to Kinnally directly or indirectly, or receive payment from her on any such loan.

135. By reason of the conduct described above, Respondent has engaged tn the following misconduct:

b.

a. Entering into a business transaction with a client or knowingly providing an ownership, possessory, security or other pecuniary interest adverse to the client without fair and reasonable terms fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client, without informing the client in writing that she may seek advice of independent legal counsel on the transaction and giving her a reasonable opportunity to do so and without obtaining informed consent from Kinally in writing to the essential terms of the transaction and the lawyer's role in the transaction including whether the lawyer is representing the client in the transaction , by conduct including, telling Kinally to obtain a loan from his father without any informed consent explaining his conflicting interests in having his father repaid the loan and without advising Kinally to obtain independent advice of counsel in violation of Rule l.S(a) of the Illinois Rules of Professional Conduct (201 O);

Providing financial assistance to a client by conduct including, having his employees draft and witness promissory notes for a firm client, and having his father advance loans to Kinally totaling $83,000, in violation of Rule l.S(e) of the Illinois Rules of Professional Conduct (201 O);

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c.

d.

ANSWER:

Violating the Rules of Professional Conduct by conduct including having his employees draft and witness promissory notes for Kinally, a firm client, and deliver the loans to his client, and knowingly assisting his father in advancing financial assistance to his client Kinally, in violation 1.8(e) in violation of Rule 8.4(a) of the Illinois Rules of Professional Conduct (201 O); and

Representing another person, Dr. McNabola, in the same or substantially related matter in which those persons interests are materially adverse to the interests of a former client, Carol Kinally, without Kinally's informed consent, in violation of Rule 1.9(a) of the Illinois Rules of Professional Conduct (2010).

Denied, including each and every sub-paragraph (a)-(d) inclusive.

ANSWER TO COUNT VI

Alleged Personal Interest Conflict by Obtaining a 10% Loan from his Father for his Client

136. The Administrator repeats and realleges paragraphs 105 through 134 of Count V.

ANSWER: McNabola realleges his answer to paragraphs 105 through 134 above.

137. As a result of Kinally's failure to repay Dr. McNabola's monies, on September 21, 2011, Respondent caused a memo to be prepared and sent to Stookal, the attorney handling Ms. Kinally's worker's compensation matter, setting forth expenses owed to the McNabola firm including the loans totaling $83,000 from Dr. McNabola and directing the Stookal to pay Dr. McNabola those funds from the settlement proceeds Stookal had obtained on Kinally's behalf.

ANSWER: Denied, including the allegation that the document stated that "the expenses owed

to the McNabola firm" included the loans totaling $83,000 from Dr. McNabola or that the memo

was prepared "as a result of' Kinnally's failure to repay Dr. McNabola. The memorandum did

not direct payment of such loan funds to the firm, nor was such payment to the firm ever

requested. McNabola respectfully refers the Hearing Board to the memorandum for the contents

thereof, and admits, upon information and belief, that his firm prepared the memorandum to

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Stookal, that it was dated September 21, 2011, that it accounted for the Kinnally settlement

proceeds and disbursements, and also itemized the loans Dr. McNabola had made to Kinnally

from his own funds. The memorandum concluded that Kinnally had "received approximately

$528,000 net tax free," itemized as the $25,000 in cash from the personal injury settlement,

$83,000 in cash loans from Dr. McNabola, and $420,000 in workers compensation benefits

(including medical benefits).

138. Respondent's personal interests in having his father repaid the $83,000 loans given to Kinally were adverse to Kinally's interests in not repaying those loans.

ANSWER: Paragraph 13 8 alleges legal conclusions to which no response is required. If and

to the extent a response is required, McNabola denies the allegations.

139. At no time between November 2003 and July 2006, did Respondent explain to Kinally that there was a significant risk that the representation of Kinally would be materially limited by Respondent's responsibilities to his father nor did he obtain informed consent from Kinally to represent her when burdened with this conflict between her interests and Respondent's interests in having his father repaid.

ANSWER: Paragraph 139 alleges legal conclusions to which no response is required. If and

to the extent a response is required, McNabola denies the allegations, except that he admits that

he did not "explain to Kinnally" the alleged statement, but denies that the statement is accurate

or that he had any obligation to explain inaccurate information to Kinnally.

140. By the conduct set forth above Respondent has engaged m the following misconduct:

a. Representing a client if the representation involves a concurrent conflict of interest where there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to a

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ANSWER:

b.

third person without obtaining informed consent by conduct including, directing another lawyer (Stookal) to deduct the monies owned to Respondent's father in the amount of $83,000, from the proceeds of a lawsuit, in violation of Rule l.7(a) of the Illinois Rules of Professional Conduct (2010);

Using information acquired in the course of representing a former client to her disadvantage by conduct including, sending a memo to Kinally's worker's compensation attorney directing the refund of the $83,000 loans paid by Dr. McNabola to Kinally, Respondent's former client, in violation of Rule l.9(c) of the Illinois Rules of Professional Conduct (201 O);

Denied, including each and every sub-paragraph (a)-(b) inclusive.

ANSWER TO COUNT VII

Allegedly Knowingly Assisting Another to Violate the Rules of Professional Conduct by Providing Financial Assistance to Firm Clients

141. Between August 2011 and January 2013, Lauren O'Keefe (hereinafter "O'Keefe") was a paralegal employed by Cogan & McNabola, P.C., and subsequently, after that firm dissolved, McNabola Law Group, P.C.

ANSWER: Admitted, except O'Keefe's start date was August 2010, and McNabola denies

that the firm dissolved. The name of the firm was changed in July 2012 from Cogan &

McNabola, P.C. to McNabola Law Group, P.C.

142. Between August 2011 and January 2013, Respondent would often direct O'Keefe to prepare promissory notes for firm clients to obtain loans from Dr. McNabola, O'Keefe or others. The promissory notes used were prepared by O'Keefe or other employees at the firm, and regularly witnessed by employees of Respondent's law firm.

ANSWER: Denied.

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143. On the following dates, O'Keefe, at Respondent's direction met with firm clients and made the following loans to clients of Cogan & McNabola P.C. and/or McNabola Law Group, P.C.:

Date Client Amount Interest Rate

12/27/11 Melanie DiMuzio $2,000 20% per annum

1125/12 Stephanie Prince $1,200 20% per annum

3/9/12 Stephanie Prince $1,287.45 20% per annum

3119112 Manuel Cordon $2,000 20% per annum

ANSWER: Denied, including the allegation that McNabola "directed" O'Keefe to make

loans, except McNabola admits upon information and belief that O'Keefe loaned funds to

Stephanie Prince. Answering further, McNabola denies that he or MLG ever loaned money to

any client, and states that Ms. Prince was wheelchair-bound, in chronic pain, anxiety ridden, had

serious medical conditions, and was being evicted.

144. The payments described in paragraph 143 above, were not court cots [sic] or expenses of litigation but were to be used for personal living expenses or other purposes unrelated to litigation costs.


Paragraph 144, except he admits upon information and belief that O'Keefe's loan to Ms. Prince

was not for court costs or litigation expenses but was to avoid eviction from her home.

145. As explained further in paragraph 146 below, in order to fund the loans, in some instances Respondent gave cash to O'Keefe for the loans which she deposited into her bank account and then she wrote checks from her bank account to the clients. In other instances, Respondent had O'Keefe loan the clients her own money. In those instances, Respondent guaranteed 0' Keefe that she would be repaid any

68


monies she personally advanced, and told her that these loans were a good way to make 20% return on her money.

ANSWER: Denied.

146. Between January 13, 2012 and February 13, 2012, O'Keefe received from Respondent cash totaling $2080 which she deposited into her checking account to cover monies loaned to a firm client and described in paragraph 143 above.

ANSWER: Denied.

147. On March 20, 2103 [sic], Respondent issued a check no 4076 in the amount of $3079.81 payable to Lauren O'Keefe refunding to her own monies she had used for the financial assistance she advanced to the firm's client, Prince, plus 20% interest.

ANSWER: Denied, except McNabola admits that he signed check no. 4076 in the alleged

amount from MLG's IOLTA account. Answering further, McNabola states that the source of the

funds to repay the loan from Ms. O'Keefe was the settlement proceeds from the $3.5 million

settlement that MLG had negotiated on Ms. Prince's behalf, which was fully documented.

Accordingly, neither MLG nor McNabola "refunded" or paid Ms. O'Keefe, and McNabola

denies any implication that he or MLG indirectly loaned funds to Ms. Prince via Ms. O'Keefe.

Rather, O'Keefe was repaid from Ms. Prince with her knowledge, direction, and consent from

Ms. Prince's settlement funds in the same manner than any commercial lender would have been

repaid.

148. In each of the promissory notes for the loans described in paragraph 143 above, there was a provision, which provided:

1.3 Required Prepayment. The Borrower shall prepay, without penalty, in whole but not in part, the outstanding principal plus all accrued interest under this Note prior to the Maturity Date should

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ANSWER:

Borrower elect to change law firms prior to the conclusion or successful conclusion of the Lawsuit. Such payment must be made immediately upon notification to Cogan and McNabola that the Borrower is changing or desires to change law firms.

McNabola has no knowledge sufficient to form a belief as to the truth of the

allegations of paragraph 148, but denies any implication that he created or authorized the

inclusion of such language in any promissory notes. Upon information and belief, this is the

same or similar language that a commercial lender would have required.

149. The transactions described in paragraph 143 above were not fair or reasonable since the 20% interest rate was above market rates and the prepayment clause described in paragraph 148 above, was punitive.

ANSWER: Paragraph 149 alleges legal conclusions to which no response is required. If and

to the extent a response is required, McNabola denies the allegations and further denies that he

authorized the interest rate, prepayment clause or any of the terms of the transactions described

in paragraph 143.

150. Respondent knew that the Illinois Rules of Professional Conduct prohibited him from advancing financial assistance to clients. In an effort to circumvent the rules, Respondent directed O'Keefe to advance financial assistance to each of the clients, referred to in paragraph 143 above.

ANSWER: McNabola admits the first sentence but denies any implication that he violated

that prohibition. The remainder of paragraph 150 is denied.

151. By reason of the conduct described above, Respondent has engaged m the following misconduct:

a. Providing financial assistance to a client in connection with pending litigation, by conduct including, directing his paralegal, Lauren O'Keefe to advance financial assistance

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ANSWER:

b.

c.

to clients, in violation of Rule 1.8(e) of the Illinois Rules of Professional Conduct (201 O);

Violating the Rules of Professional Conduct by conduct including, having his employees draft and witness promissory notes and providing monies or guarantees of repayments to O'Keefe, for financial assistance to DiMuzio, Prince and Cordon, firm clients, in violation of Rule 1.8(e) in violation of Rule 8.4(a) of the Illinois Rules of Professional Conduct (201 O); and

Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation by conduct including, purposefully having an employee of his law firm advance financial assistance to a firm client in order to hide his involvement when Respondent knew that financial assistance to a client was prohibited, in violation of Rule 8.4 (c) of the Illinois Rules of Profession Conduct (2010).

Denied, including each and every sub-paragraph (a)-(c) inclusive.

ANSWER TO COUNT VIII

Alleged Abuse of Process by Issuing a Subpoena in a Concluded Arbitration Matter

152. In approximately 2011, a dispute regarding profits and revenue arose between Respondent and Michael Cogan (hereinafter "Cogan"), a partner in the law firm then known as Cogan & McNabola, P.C. (hereinafter "Cogan & McNabola")

ANSWER: Admitted. Answering further, McNabola states that several other issues were

submitted for arbitration.

153. In or about August 2011, the dispute referred to in paragraph 152, above, was submitted to the American Arbitration Association to be resolved through binding arbitration. The matter was entitled Michael P. Cogan v. Cogan & McNabo/a, P. C. Mark McNabola and Edward McNabola, and was captioned number AAA Arbitration #51 194 Y 01022 11 (the "arbitration matter.") On November 16, 2011, the hearing in the arbitration matter commenced and was completed on January 3, 2012. On May 1, 2012, the arbitrator confirmed the matter was concluded and the arbitration matter was closed. The result of the arbitration was that the parties' 2008 Revenue Allocation Agreement was in effect through 2010, a determination was made regarding how overhead should be split amongst the partners, dissolution of the law firm as a remedy was denied, the parties were

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ANSWER:

ordered to implement a dispute resolution mechanism, and a resolution of what would occur with client fees if any partner left the firm.

Admitted. Answering further, the arbitration ruling addressed many additional

issues, including issues on which McNabola and MLG prevailed, and was binding and closed as

of April 9, 2012

154. In or about June 2012, Respondent fired attorney Jon Papin (hereinafter "Papin") from employment with Cogan & McNabola, P.C.

ANSWER: Admitted. Answering further, Respondent states that he fired Papin on behalf of

the firm for various acts of incompetence and misconduct, including, without limitation,

violating the injunction referred to in paragraph 6 above, neglecting case files, and demonstrative

lack of courtroom skills, and other outrageous and untruthful behavior; that Papin is biased

against McNabola, has threatened to "get McNabola's law license" as his life's ambition, and

ghost-wrote Ms. Kinnally's communications with the ARDC.

155. On or about July 2, 2012, Cogan & McNabola, P.C. dissolved and Cogan left the firm. Cogan started a new firm with a colleague called Cogan & Power P.C. (hereinafter "Cogan & Power"). Thereafter, in July 2012, Papin began working for Cogan & Power.

ANSWER: Denied. Answering further, McNabola states that on or about July 2, 2012,

Michael Cogan and John Power resigned without notice from Cogan & McNabola, P.C. The

firm did not dissolve, and its name was changed to McNabola Law Group, P.C. In breach of

their fiduciary duties to MLG and McNabola, Cogan and Power and other employees

surreptitiously started their new firm in April 2012 but did not inform the Firm or its partners

until July 2, 2012. Upon information and belief, Jon Papin began working for the firm now

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known as Cogan & Power, and to improperly solicit business from Cogan & McNabola before

July 2, 2012.

156. After July 2, 2012, Respondent grew susp1c10us that his paralegal, Lauren O'Keefe (hereinafter "O'Keefe") was in communication with Papin. Bad blood had developed between Respondent and Papin.

ANSWER: Denied, except that McNabola admits that knew at all times that O'Keefe and

Papin had a long friendship and history of having worked together at other personal injury firms.

McNabola admits that after July 2, 2012, he became suspicious that O'Keefe was providing

proprietary, confidential and privileged firm information to Papin. O'Keefe was advised that she

should cease communications with Papin regarding firm matters after his termination.

McNabola had reason to believe that O'Keefe was communicating with Papin, including

information to which Papin was not entitled as a former employee of the firm, and that

McNabola had terminated Papin for misconduct as described above and Papin resented

McNabola for doing so. Papin has clearly expressed his intent to destroy McNabola's profession

and take his law license.

157. Between July 2012 and October 2012 Respondent continually asked O'Keefe, who was still in his employ, to allow Respondent access to her personal gmail account and text messages, to verify whether she was communicating with Papin. O'Keefe refused to allow Respondent access to her personal gmail account or text messages.

ANSWER: Denied.

158. On October 12, 2012, Respondent caused a subpoena to be issued to Apple, Inc. on case number AAA Arbitration #51 194 Y 01022 11 for any typed text messages or iMessages between O'Keefe's personal cell phone number and numbers thought to be associated with Papin.

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ANSWER: Denied, except McNabola admits that a subpoena was issued and refers the

Hearing Panel to the subpoena for the contents thereof.

159. The subpoena referred to in paragraph 158 above, was issued in the Circuit Court of Cook County and commanded Apple, Inc. to produce the documents referred to in paragraph above.

ANSWER: Denied, except McNabola admits that a subpoena was issued and refers the

Hearing Panel to the subpoena for the contents thereof.

160. Respondent's conduct in issuing a subpoena on a matter that had already resolved was improper and dishonest, as the arbitration matter had been closed as of May 1, 2012 and was not an active case, and Respondent knew it was improper and dishonest and that he could not issue a subpoena under that closed matter number.

ANSWER: Denied, except McNabola admits that the arbitration matter had been closed as of

April 9, 2012.

161. Respondent caused the subpoena to issue in order to deceive Apple into producing records that Respondent otherwise would not be able to obtain. Respondent had an ulterior motive for obtaining the records, in that he wanted to determine information about communications between Papin and O'Keefe which he had not been able to obtain through O'Keefe.

ANSWER: Denied.

162. On or about late October 2012, as a result of O'Keefe's accidental receipt of a phone call on her cell phone from AT & T about the subpoena for her cell phone records, O'Keefe became aware of Respondent's attempt to surreptitiously obtain her cell phone records and was able to halt production of the records.

ANSWER: McNabola has no knowledge sufficient to form a belief as to the truth of the

allegations in paragraph 162, except he denies the term "surreptitiously."

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163. By reason of the conduct described above, Respondent has engaged in the following misconduct:

a.

b.

Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, by conduct including issuing a subpoena on a matter that was concluded, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (20 I 0); and

Engaging in conduct prejudicial to the administration of justice by conduct including improperly using the court system to issue a subpoena and committing the tort of abuse of process by dishonestly issuing a subpoena in a closed matter for ulterior reasons in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (20 l 0).

ANSWER: Denied including each and every sub-paragraph (a)-(b) inclusive.

WHEREFORE, McNabola asks that the Hearing Board find in his favor on all Counts in

the Complaint, and grant such other relief as is just and proper.

Dated: November 8, 2018

Edward W. Feldman Miller Shakman & Beem LLP 180 N. LaSalle St., Suite 3600 Chicago, IL 60601 efeldman(lvmillershakman.com

Samuel J. Manella 77 W. Washington Street, Suite 705 Chicago, Illinois 60602 manellalawofficc@,aol.com

Respectfully submitted,

MARK~ By:~ _____ __. ____ ...._---......._ __ ~

One of his attorneys

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CERTIFICATE OF SERVICE

The undersigned attorney, upon oath, hereby certifies that on the 8th day of November

2018, he served the foregoing Answer to Complaint by email upon the following parties:

Wendy J. Muchrnan Email: [email protected] Melissa Smart Email: [email protected] Chi (Michael) Zhang Email: [email protected] Counsel for the Administrator 130 East Randolph Drive, Suite 1500 Chicago, Illinois 60601 Telephone: (312) 565-2600 Email: [email protected]

Dated: November&, 2018

By:

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