Madison - St. Clair Record

Monday, September 16, 2019

Oral arguments: Gibbons filed ARDC complaint against lawyer for Vet commissioner Lavite

By Record News | Feb 27, 2018


MOUNT VERNON – Madison County State’s Attorney Tom Gibbons alleged professional misconduct against lawyer Tom Burkart of Hamel, Fifth District appellate judges learned at oral argument on Feb. 21. 

County counsel Philip Lading did not initially identify the source of the complaint, but stated at the end of the argument that it came from Gibbons. 

Prior to Lading’s statement, Justice Judy Cates said, “When I see someone in the legal profession say someone violated the rules of professional responsibility, that’s a very personal statement and it better be right.” 

When she asked Burkart if the matter had been resolved, he said, “It’s news to me.” 

Cates said, “As of this date, no letter?” 

Burkart said no. 

In an interview on Feb. 27, Scott Renfrowe of the Attorney Registration and Disciplinary Commission said it was theoretically possible that the agency would not notify a lawyer about a complaint. 

“The general practice would be to notify the subject of the inquiry,” Renfrowe said. 

“Depending on the allegation, we might wait to conduct a preliminary investigation. We would not pursue formal proceedings without giving the subject notice and an opportunity to respond.” 

Burkart represents veteran assistance superintendent Brad Lavite, who sued the county after officials banned him from his office. 

Fifth District judges previously ruled in Lavite’s favor, finding that the county could not exercise oversight of the veteran service commission. 

The case returned to the Fifth District after county auditor Rick Faccin refused to approve payment of Burkart’s fees. 

As oral argument began, Lading said the veteran assistance statute does not authorize a veteran assistance commission to seek mandamus.

Cates: You didn’t like the invoices, so you asked them to revise the invoices? 

Lading said yes. 

Cates: Who asked for that? 

Lading: It was initiated by the auditor’s office. 

Cates: If the bill satisfies the statute, what remedy do they have other than mandamus?” 

Lading: I haven’t thought through that issue. 

Cates: How do they get paid? 

Lading: By complying with the statute. 

Cates: What if there is disagreement? 

Lading said they could seek injunctive relief. 

Cates: What’s the difference between mandamus and injunctive relief? 

Lading: Not much.

Cates: Thank you. 

She asked if he reported Burkart to ARDC. 

Lading: I did not. 

Cates: Someone did? 

Lading said yes. 

Cates: Do you believe this court can impose sanctions for filing a frivolous appeal? 

Lading said this case isn’t frivolous. 

Cates: I didn’t say that. I asked if you were aware. 

Lading said yes. 

He quoted a section of law and Cates said, “Where does that section give you oversight? I thought we clearly said you didn’t have the right to do that…The tragedy is, money is being spent that should be going to veterans.” 

“You’re still allowed to meddle? Isn’t that the subject of the veterans board? 

“What gives you the right to go back in and say we want to see this, we want to see that? 

Lading quoted statute on the county’s authority to review procedures. 

Cates: “What procedures are you reviewing? You’re reviewing the bills and the lawyer gets reported for giving them to you.” 

Lading said that if the commission wanted to give $2,000 to Donald Trump’s campaign, the county could say it wouldn’t pay for illegal expenses. 

“It could be used, potentially, for a variety of illegal purposes,” Lading said. 

When Burkart’s turn came, he said the Trump remark offended him. 

He said that at a finance committee meeting, Faccin said, “I’m not paying this bill, especially not this attorney.” 

After Burkart said he received no letter from ARDC, he said, “If I did what they did in this case, I would lose my license.” 

Lading stood for rebuttal, and Cates asked if he was aware of the county board issuing rules or procedures for approval of the commission’s warrants. 

Lading said he was not. 

Cates read from statute that the superintendent approves payments. 

Lading: There’s a comma. 

Cates: What does the comma mean? 

Lading said it meant the commission had to submit it to the county. 

Cates: Where does it say all that? 

Lading: The language could be a lot clearer. 

Cates:Is it our determination to make law and policy or to interpret law? We don’t do what you would like us to do. 

She brought up the ARDC complaint again and said, “It’s all over your brief.” 

She said the brief was filed months ago, and asked again if Burkart was reported. 

Lading: Mr. Burkart has been reported to the ARDC. 

Cates: That is your statement before this court? 

He said yes. 

Justice Richard Goldenhersh asked how long ago the complaint was filed, and Lading said, “Some time ago.” 

Cates asked who filed it and Lading said, “I believe it was the state’s attorney.” 

Cates: “Mister Gibbons?” 

Lading said yes. 

Cates asked Lading if he had a duty to report Burkart. 

Lading: “Not if it had already been done.”

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Madison County State's Attorney Sandberg Phoenix & Von Gontard PC