Hinsdale Attorney Misconduct Could Bring Cicero $287,500 Windfall
January 27, 2015
(Chicago) – A federal appeals court last week ordered that a Hinsdale attorney be sanctioned for misconduct, a move that could potentially return to the Town of Cicero's coffers $287,500 in legal fees.
A United States Court of Appeals 7th Circuit panel last Monday, January 12, handed down an opinion and, essentially, ordered federal judge Thomas Durkin to sanction attorney Dana Kurtz of suburban Hinsdale for "serious misconduct".
The court's decision involves a 2008 case in which Kurtz sued Cicero and Town President Larry Dominick for allegedly firing a city employee, Merced Rojas, over his support of a Dominick political opponent.
Judge Frank Easterbrook, who wrote the appeals panel's six-‐page opinion, faulted Durkin for neglecting to sanction Kurtz's misconduct at the trial where her victory over Cicero was quickly set-‐aside by judge James Holderman.
"District Judge Holderman granted defendants' [Cicero and Dominick] motion for a new trial, concluding that Dana L. Kurtz, Rojas's lawyer, had engaged in serious misconduct during the trial," Easterbrook wrote. "Judge Holderman found that Kurtz made statements designed to mislead the jury, elicited hearsay responses…, argued with the judge in a way that informed the jury about evidence that the court had excluded, and undermined the credibility of an important defense witness by asking him questions that presented him in a bad light, even though Kurtz lacked a good faith basis for believing the questions proper."
At the original trial, a jury awarded Rojas $650,000 in damages, but Holderman immediately granted the defense motion to set aside the award and to order a new trial after concluding that Kurtz had committed "misconduct" during trial.
Kurtz failed to disclose to defense attorneys that Rojas had filed for bankruptcy six months after the suit against Cicero and Dominick was filed. "Kurtz's concealment of Rojas' bankruptcy helped to withhold proof of our long-‐held suspicion that the suit against Cicero was a naked money grab by a financially desperate employee seeking to fleece Cicero taxpayers," said attorney Austin Zimmer of the Del Galdo Law Group of Berwyn, who has represented Cicero and Dominick in the battle against Kurtz.
Before the second trial launched, Durkin urged the parties to settle, and Rojas secured $212,500 in damages for his dismissal and Kurtz snagged $287,500 in fees, according to the opinion issued by Easterbrook.
But in an unusual step, Cicero and Dominick fired back and sought sanctions against Kurtz, sanctions that Durkin declined to impose. It was that decision by Durkin that the appeals court last week reversed.
"Judge Easterbrook's decision represents a moral victory for the Town of Cicero because it establishes that 'serious misconduct' by Rojas' lawyer was the factor responsible for the initial court victory, not the truth," said Zimmer. "The court's decision represents an opportunity for the truth to be vindicated and for Cicero taxpayers to potentially recoup $287,500 in fees – taxpayer money – paid to Kurtz as a reward for her misconduct."
Cicero and Dominick are pushing for a full restitution of the $287,500 in fees, though Zimmer declined to predict Durkin's ultimate decision.
Moreover, Cicero's decision to pursue an appeal to United States Court of Appeals 7th Circuit on sanctions against Kurtz caught many legal observers off-guard, according to Del Galdo Law Group's managing partner Michael Del Galdo and Cicero's Town Attorney.
"Many municipalities and mayors have felt victimized by Kurtz's practices in court, but shrugged off the expense to pursue sanctions in court," said Del Galdo. "But Cicero and Town President Larry Dominick refused to allow its taxpayers to be abused by Kurtz's conduct, and that's why the town aggressively pursued the sanctions as a means to blunt the future fleecing of Cicero by Kurtz."
In a hint of a potentially stiff sanction that could await Kurtz, Easterbrook's opinion pointedly noted that Kurtz has a disciplinary history in court proceedings that "is substantial." Easterbrook highlighted a 2004 case, Crohan v. Orland Park, in which Kurtz "engaged in gamesmanship."
"Kurtz's unwillingness to conform her conduct to requirements laid down by judicial orders or rules of procedure is unlikely to change unless courts respond firmly," Easterbrook wrote.