Storment v. O'Malley
| Decision Date | 30 July 1991 |
| Docket Number | No. 91-1613,91-1613 |
| Citation | 938 F.2d 86 |
| Parties | Paul M. STORMENT, Jr., Plaintiff-Appellant, v. John C. O'MALLEY, Administrator, Attorney Registration and Disciplinary Commission, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Warren Lupel, Katz, Randall & Weinberg, Chicago, Ill., Clyde Kuehn, Kuehn & Trentman, Paul M. Storment, Jr., Storment & Read, Belleville, Ill., for plaintiff-appellant.
Wendy J. Muchman, Attorney Registration & Disciplinary Com'n, Chicago, Ill., for defendant-appellee.
Before CUDAHY, EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.
During a state court divorce hearing, plaintiff Paul Storment, an attorney, was inadvertently tape-recorded while encouraging his client to lie on the witness stand. This tape eventually made its way to the Illinois Attorney Registration and Disciplinary Commission (ARDC), where investigators put it to good use. Storment filed a suit in the district court seeking an injunction to prevent the ARDC from using the tape recording in any disciplinary proceeding. The district court entered a final judgment dismissing the suit on abstention grounds because of the pending state disciplinary action. Storment appeals.
In March, 1988, Storment represented Debra Granger in a custody dispute as part of a divorce proceeding. At a hearing which was tape-recorded, the husband's attorney called Darnell Moody as a witness. Moody testified that he and Granger had sexual relations at the "Camelot Inn" motel while Granger's eighteen month old daughter was on the bed next to them, and that he saw Granger give the daughter a wine cooler to drink. Storment, who was surprised by this testimony, asked for a five-minute recess to consult with his client.
During the recess, everyone left the courtroom except Storment and Granger. The court reporter's tape recorder for some unexplained reason was not shut off. 1 The following discussion ensued and was recorded:
At this point, court reconvened and Storment called Granger as a witness. STORMENT: Do you ever--under oath now, do you ever remember going to a motel with your daughter with Mr. Moody?
Circuit Court Judge Sheila O'Brien eventually awarded custody to Granger and granted a divorce. The now ex-husband hired a new attorney, Roza Gossage, to work on his appeal. To prepare herself, Gossage reviewed the tapes of the various hearings and came across these passages. With the court's permission, she had the tape transcribed and asked the court to reopen the custody issue. Storment moved for a temporary restraining order, an injunction and a gag order. The circuit court judge ordered a new trial and denied Storment's motions. Storment appealed and the Illinois Appellate Court held that the conversation between him and Granger was not protected by the attorney-client privilege. In re Marriage of Granger, 197 Ill.App.3d 363, 143 Ill.Dec. 651, 554 N.E.2d 586 (1990). The court held that conversations in which an attorney recommends to his client that the client commit perjury are not protected under the attorney-client privilege. Id., at 375, 143 Ill.Dec. at 659, 554 N.E.2d at 594.
After the divorce proceedings were complete, Judge O'Brien sent a letter to the ARDC together with copies of the transcripts, and the ARDC opened an investigation. Storment responded to the notice of investigation and again raised the defense of attorney-client privilege. The investigation was referred to the ARDC Inquiry Board, and a formal complaint was subsequently filed with the Hearing Board of the ARDC alleging that Storment engaged in conduct he knew to be fraudulent in violation of Rule 7-102(a)(7) of the Illinois Code of Professional Responsibility and participated in the creation of false evidence in violation of Rule 7-102(a)(6) of the Code. Storment raised two defenses before the Hearing Board: the transcript is unreliable and incomplete, and the conversations are privileged. The disciplinary case is still pending before the ARDC.
Storment next filed this suit in district court alleging violations of the Omnibus Crime Control and Safe Street Acts of 1968. 18 U.S.C. Secs. 2520-2521 (Federal Eavesdropping Statute). He sought to enjoin the ARDC from using the tape and any transcript of it. The ARDC filed a motion to dismiss, raising among other things the issue of abstention. The district court granted this motion, holding that because Storment has the opportunity to raise the federal issues in a competent state tribunal and because no bad faith, harassment or other exceptional circumstances dictate to the contrary, the court should abstain from interfering with ongoing state disciplinary proceedings.
The only issue on appeal is whether the district court erred when it chose to abstain from deciding Storment's federal claims while the state disciplinary proceedings are pending. This court reviews a district court's decision to abstain for abuse of discretion. A.G. Edwards & Sons v. Public Bldg. Com'n, 921 F.2d 118, 121 (7th Cir.1990). In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, the United States Supreme Court has espoused a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances. This notion of "comity" includes "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in the separate ways." Id., at 44, 91 S.Ct. at 750.
In Middlesex County Ethics Committee v. Garden State Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Supreme Court set forth the appropriate analysis for determining whether or not Younger requires a district court to abstain from interfering in attorney disciplinary proceedings. The Court held in Middlesex that the question of whether or not to abstain from interfering with state attorney disciplinary proceedings is threefold:
first, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; second, do the proceedings implicate important state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges.
Id., at 432, 102 S.Ct. at 2521 (emphasis in original).
The first inquiry is whether the district court properly concluded that the proceedings against Storment were ongoing state judicial proceedings. Given the elaborate procedure established by the Illinois Supreme Court for disciplining attorneys, including extensive hearings and review by the supreme court, these proceedings are clearly judicial in nature. See Ill.Sup.Ct. Rules 751-776; see also In re Harris, 93 Ill.2d 285, 291-92, 66 Ill.Dec. 631, 633, 443 N.E.2d 557, 559 (1982). For example, under Rule 235 of the Rules of the Attorney Registration and Disciplinary Commission, Storment has the right to file motions regarding defects in the pleadings before the Hearing Board prior to the hearing. Storment can also ask the Illinois Supreme Court to review any...
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