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DOE v. ROE

January 7, 1991

JANE DOE, Plaintiff,
v.
JOHN ROE and ROE AND ROE, LTD., Defendants


William T. Hart, United States District Judge.


The opinion of the court was delivered by: HART

WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 Presently pending is defendants' motion to dismiss the amended complaint. On such a motion, all the well-pleaded allegations of the complaint are assumed to be true and all reasonable inferences from the facts alleged are drawn in favor of plaintiff. Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1039 (7th Cir. 1987). The motion will be granted only if defendant can demonstrate that the facts alleged cannot support a claim. See id. at 1039-40.

 Plaintiff Jane Doe was a client of defendant John Roe, an attorney with and shareholder of defendant Roe and Roe, Ltd., a professional services corporation. Roe represented Doe in divorce proceedings she was involved in. The core of the complaint is that Roe misused his position as Doe's attorney to coerce and intimidate Doe into having sexual relations with him. There can be no doubt that the alleged actions are reprehensible. The question, though, is whether the alleged actions of Roe constitute a cognizable cause of action under, first, federal law and, second, state law. *fn1" Doe characterizes the five counts of her complaint as follows. Count I is a claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. Count I is based on a violation of § 1962(a), which prohibits using or investing racketeering income in an enterprise. Count II alleges a RICO claim for violating § 1962(c) which prohibits conducting or participating in the conduct of an enterprise's affairs through a pattern of racketeering. Count III and IV are pendent state law claims for breach of fiduciary duty and intentional infliction of emotional distress. Count I is brought against both defendants. Counts II through IV are only against Roe. Count V is a pendent state law claim against Roe and Roe for respondeat superior liability based on its employee's conduct alleged in Counts III and IV.

 In April 1983, Doe met Roe at a social gathering. After inquiring about her divorce proceeding, Roe suggested Doe's counsel was inadequate and that he could do a better job. In June 1983, Doe went to Roe's office to discuss her divorce. Roe again derided the work of Doe's counsel and she decided to hire Roe instead. In July, Doe paid a $ 7,500 retainer. *fn2" No written agreement was entered into, but Roe stated that if further fees were necessary, they would be paid by Doe's husband. Then, as now, Doe had no substantial assets of her own. She would not have hired Roe if she knew additional payments would be required.

 Doe placed great trust in Roe because he was her attorney and because she understood he had an outstanding reputation. Additionally, because of the emotionally trying nature of the divorce proceeding, Roe advised Doe on personal matters as well as legal matters. As a result, Doe developed a psychological dependency on Roe. On her second visit to Roe's office, Roe made sexual advances. Doe initially resisted, but Roe persisted. "Although Plaintiff felt repulsed by ROE's sexual advances, she submitted because of her fear that otherwise he would not represent her and that since she could not afford a retainer fee to hire a third counsel in her divorce case, she might go unrepresented and lose both custody of her child and the opportunity for financial security for herself and her child." From 1983 through 1988 Doe continued to submit to Roe's sexual demands, at his offices, in her home, and at other locations. Doe continued to do so because of both her emotional dependency and her fear of what would happen if she lost Roe's legal representation.

 In May 1985, shortly after a court appearance in the divorce case, Doe and Roe returned to Doe's home where they engaged in sexual relations believing no one else was at the home. Doe's husband, however, was in the home and discovered them in the bedroom engaged in sexual activity. As a result of this discovery, Doe's husband determined that he would not pay Doe's attorney's fees. Roe subsequently failed to seek to have Doe's husband pay the fees out of fear that the husband would reveal in court his knowledge of Roe's relationship with Doe. In June 1985, Roe had Doe sign a settlement agreement without explaining it to her or giving her an adequate opportunity to read it. The agreement provided that Doe would pay Roe's fees. A month latter, Roe used the settlement agreement as a means of placing a lien on Doe's residence without informing Doe that he had done so. *fn3"

 In May 1986, Doe received a letter from Roe and Roe's bookkeeper, written at the direction of Roe, informing Doe she owed a total of $ 6,500 for legal services. In the letter, Doe is called a "bitch" and is informed that if she does not pay, the members of the firm "have very 'Italian' friends who could be eye witnesses to some slight injury on your part. I don't need to inform you [Doe] that this bill should be paid upon receipt, as I don't want to read your name in the paper, and I don't mean on the funny pages!" It is stated that Roe "has informed me [the bookkeeper] that if you do not wish to pay your bill in full, he will work out with you in 'other ways' to have you pay off your balance. He will be in 'touch' with you in the near future." Out of fear for her personal safety and after being informed she really owed an additional $ 40,000, Doe agreed to continue to have sexual relations with Roe. He then filed a satisfaction and release of judgment as to the lien on the residence and other amounts allegedly due.

 Doe subsequently asked Roe to represent her with respect to difficulties concerning enforcement of her divorce decree. Roe agreed to represent her on the "same terms," meaning the price of continued representation would be submission to Roe's sexual demands. It is alleged that "because Plaintiff continued in her feelings of dependence upon ROE for legal representation and emotional support to the extent that she felt under ROE's total psychological domination, because she did not know that ROE's insistence on sex in exchange for legal representation violated his fiduciary duties to her, because she was frightened by what ROE might do should she break off their relationship, and because she did not have the funds to pay his fees, Plaintiff continued to submit to ROE's sexual demands until on or about October, 1988."

 In February 1989, Doe learned that another female divorce client of Roe had brought a lawsuit against him alleging that he had violated his fiduciary duties by having a sexual relationship with the client. As a result, Doe came to the belief that Roe had violated his fiduciary duties to her and that she had an alternative to continuing to submit to his sexual demands.

 Doe claims that Roe failed to inform her of the following matters which she did not learn until she consulted another attorney: (a) that she was entitled to zealous representation without submitting to sexual demands; (b) that the sexual relationship was potentially harmful to her interests in the divorce case; (c) that there was a "substantial risk" that her submission to Roe's sexual demands was the result of the transference phenomenon by which a client can project inappropriate feelings of dependence onto the attorney and suffer serious emotional injury as a result of any sexual relationship that may develop; (d) that the sexual relationship created a potential conflict of interest in Roe's representation of her; (e) that Roe engaged in sexual relations with numerous sexual partners, including at "swinger" parties, and that posed an "unusual risk" of life-threatening sexually transmitted infection; and (f) that the adulterous relationship with Roe subjected Doe to potential criminal prosecution. Additionally, Roe failed to inform Doe, either before or after receiving the retainer fee, that it was his regular practice to attempt to persuade female divorce clients that he found attractive to submit to his sexual demands and that was intended with Doe from the beginning. Furthermore, at the time Roe promised to charge no more than the retainer fee, he already intended to seek to collect fees beyond that amount. It is alleged that "As a result of his knowing and intentional failure to inform Plaintiff of the foregoing facts, ROE succeeded in deceiving Plaintiff into falsely believing that her sexual submission was not harmful to her interests and that such submission was necessary both in order to receive his representation and in order to receive his emotional support while undergoing the emotional difficulties of divorce."

 In November 1989, after Doe's present attorney first wrote a letter to Roe indicating Doe would seek redress for her injuries and that Roe should not contact Doe except through counsel, Roe nevertheless made threatening phone calls directly to Doe. Among other threats, he threatened to "rip Plaintiff to shreds," to "get everyone he knew to make her look terrible -- like a slut," and to "get her for this." Roe also informed Doe "she should be concerned about her family, her reputation, and the success of her business." Roe continued to make harassing phone calls to Doe at her house. Also, in December 1989, he sent her a note stating "DON'T DO THIS TO ME/YOU'LL BE SORRY." In January 1990, Roe approached Doe on a sidewalk in downtown Chicago and shouted obscene epithets at her. On an afternoon in June 1990, a middle-aged male in business attire, who was acting at Roe's direction, approached Doe at an intersection in downtown Chicago and made a vulgar sexual proposition. In September, the same man approached her in downtown Chicago and warned her she was "in over her head" and that he had supposedly embarrassing evidence about her that he could expose. Doe continues to receive threatening phone calls from anonymous persons and frequent early morning phone calls in which the person says nothing. The emotional distress caused by this pattern of harassment has caused her to miss work and to expend money to purchase a security system.

 The attorney representing Doe in the present action *fn4" is employed by the Northwestern University Law School Legal Clinic. Northwestern University pays the attorney's salary and he represents Doe without any compensation from Doe. Although Northwestern University is the attorney's employer, it does not purport to direct or regulate the professional judgment of the attorneys at the Legal Clinic. On October 4, 1990, Roe wrote to Northwestern University's general counsel threatening to sue the University for malicious prosecution after the successful dismissal of the present lawsuit unless the University intervened to have the lawsuit dismissed. Prior to the letter, Roe is alleged to have had a friend who is a "prominent" Northwestern University Law School alumnus contact the University's general counsel regarding Doe's continued representation by the Legal Clinic. This alumnus had also contacted Northwestern University Law School's current dean and former dean. This attempt to influence Doe's counsel's employer is characterized as a violation of Illinois's Rules of Professional Conduct Rules 8.4(a)(2) and 5.4(c).

 The foregoing matters are characterized by plaintiff as a scheme to defraud her of money, property, and honest services in violation of the federal mail and wire fraud statutes. *fn5" See 18 U.S.C. §§ 1341, 1343, 1346. Such violations can fall within the RICO definition of a racketeering act. See 18 U.S.C. § 1961(1)(B). Plaintiff claims that Roe "implemented this fraudulent scheme first by failing to disclose to Plaintiff information which he had a duty to disclose in order to enable Plaintiff to protect her interests and, second, by exerting undue influence over her in order to gain personal advantage at her expense." Roe is also characterized as engaging "in an additional fraudulent scheme by implementing a campaign of intimidation against plaintiff in order to prevent her from seeking legal recourse which would have revealed his fraudulent activities." The allegations against Roe are also characterized as being multiple acts of extortion violating Ill. Rev. Stat. ch. 38, para. 12-6 and thus claims to constitute racketeering acts. See 18 U.S.C. § 1961(1)(A). The attempts to influence Doe's counsel's employer are characterized as an attempt to obstruct ...


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