A hearing board of the Illinois Attorney Registration and Disciplinary Commission (ARDC) has recommended a 90-day suspension for one of the three St. Louis lawyers accused of having ex parte communications with a workers' compensation arbitrator in 2009 and 2010.
In addition to a suspension from the practice of law, the board recommended in a report filed Friday that Caryn Nadenbush should be required to complete an ARDC professionalism seminar within one year of the Illinois Supreme Court's entry of a final discipline order.
In July 2011, the ARDC filed complaints against Nadenbush, Elizabeth Barringer and Kerry O'Sullivan, accusing the trio of having ex parte communications with Jennifer Teague, an arbitrator for the Workers' Compensation Commission who has since resigned.
Nadenbush and Barringer worked at Hennessy & Roach and O'Sullivan practiced at Brown & Crouppen at the time the complaints were filed.
The state high court in January issued an order censuring O'Sullivan and an ARDC hearing board in June recommended censure for Barringer.
The ARDC website shows that Teague voluntarily put her law license on inactive status and that the disciplinary complaint against her remains pending.
The ARDC's amended two-count complaint against Nadenbush alleged that she engaged in email communications with Teague without disclosing the emails to her opposing counsel and made false statements about one of the exchanges to the ARDC.
Accusing her of violating the court's rules of professional conduct and engaging in conduct that is prejudicial to the administration of justice, the ARDC administrator sought a six-month suspension for Nadenbush. In her answer to the amended complaint, Nadenbush admitted some of the allegations while denying others and she denied all charges of misconduct.
During the December hearing in Nadenbush's case, the ARDC presented testimony of Fritz Levenhagen and Lindsay Rakers, two attorneys who handled workers' comp cases against Nadenbush in 2009 and 2010.
Levenhagen, a Belleville attorney, testified that he learned about the email exchanges between Nadenbush and Teague in February from a newspaper article.
He then obtained a copy of the emails, in which Nadenbush asked Teague what she thought a specific syndrome was worth and went on to explain, without naming names, that the person making the claim, Levenhagen's client Deanna Croghan, had full duty release and that the problem appears to have started after an automobile accident.
Levenhagen testified that what was said in these emails could have significantly affected his client's case, which the ARDC report says remains pending. For instance, he said, if the arbitrator believed Croghan's condition was caused by an auto accident, she would "lose her case and get zero."
He said that it was "inappropriate and wrong for Ms. Nadenbush to contact arbitrator Teague directly about Ms. Croghan's case without my knowledge and inject her primary defense in the case in front of the arbitrator without me knowing it."
Rakers, a St. Louis attorney, testified that she represented Duane Pound in a workers' compensation case in which Nadenbush represented Pound's employer. She said she didn't learn about the email exchanges until after her client's case settled.
Prior to the settlement, Rakers sent an email to Nadenbush pointing out that a doctor had referenced another doctor when it apparently should have been a different one and as such, would object to the reference.
Nadenbush forwarded the email to Teague and wrote, "She is really starting to annoy me. Either let the report in or don't, but don't tell me I can admit it and then nitpick every line to find things to object to."
According to the hearing board report, Teague replied to Nadenbush in an email, that "all you have to do is object to going forward because you need a dep. That will cook her goose and she'll fall apart. She is annoying and a bad lawyer, I think. Not 100% on that, just a feeling."
Rakers testified that she didn't give Nadenbush permission to forward her emails to Teague and was surprised by the email exchanges between her opposing counsel and workers' comp arbitrator.
At the December ARDC hearing, Nadenbush testified on her on behalf and presented the testimony of Darren Keith Short and Terrence, another pair of attorneys who handled workers' comp cases against her with Teague serving as the arbitrator.
In one email, Nadenbush asked Teague to schedule her case with Short first and said that "I think I told you he demanded $50K, for full and final before lunch last trial day, then wouldn't accept it after lunch. Then he upped his demand to $80K, but said he hadn't talked to his client yet. WTF??."
Teague responded in an email by saying, "he's clearly jerking you around. You can go first on Wednesday, no problem."
Short, a Wood River attorney, testified that he agreed in advance for Nadenbush to contact Teague regarding the scheduling matter and was not offended that he didn't receive a copy of their email exchanges or by Teague's reply to Nadenbush's email.
O'Leary, a Granite City attorney, testified at the hearing that he has known Nadenbush since she was a child and that her "reputation for truth and veracity is above reproach."
Nadenbush testified that she and Teague became friends in law school, occasionally socialized and frequently communicated via email. She said Teague told her in February that a newspaper had obtained their email exchanges and planned to publish an article.
The day after she discussed the matter with three managing partners at her firm, Nadenbush said she was fired as a result of her emails with Teague. She testified in December that she has not been employed since and started receiving unemployment benefits two months before the hearing.
The allegation that Nadenbush made false statements to the ARDC stems from her emails to Teague about the case of Levenhagen's client. In a sworn statement and subsequent letter to the ARDC, she said her email to Teague was a general question and didn't pertain to a case she had before Teague.
Nadenbush testified at the hearing that she didn't make a connection between the email at issue and the Croghan case when she gave her statement and wrote the letter. As such, she argued that she believed she was truthful in her statement.
In its findings, the hearing board determined the evidence presented was insufficient to prove Nadenbush knowingly made false statements to the ARDC.
It did, however, come to the conclusion that Nadenbush violated Rule 3.5 of the Rules of Professional Conduct, which prohibits attorneys in adversary proceedings from communicating the merits of the case with a judge or an official that is presiding over the pending proceeding.
"When an arbitrator and the attorney for one party make negative or otherwise disparaging remarks about the attorney for the other party, a serious question is presented as to the neutrality of the arbitrator and the overall fairness of the workers' compensation proceeding before that arbitrator," the hearing board report states.
The report adds that "Consequently, the respondent's ex parte communications with Arbitrator Teague impugned the fairness, impartiality, and integrity of workers' compensation proceedings before Teague, and acted to destroy public confidence therein. As a result, the administration of justice was clearly prejudiced."
The three-member hearing board was made up of Granite City attorney Leo Konzen, Urbana attorney Randall Rosenbaum and Albert Eck Jr., a non-lawyer member of the board from Springfield.
Denise Church served as counsel for the ARDC and Alton attorney Donald Groshong represented Nadenbush. Groshong said today that it was improper to comment on the case because of its pending nature.
Nadenbush could file a petition to file exceptions to the hearing board report, which would send the matter to the ARDC review board.
Nadenbush's disciplinary case is Commission No. 2011PR77.