The opinion of the court was delivered by: CHARLES NORGLE, District Judge
FINAL JUDGMENT IMPOSING SANCTIONS AGAINST ANTHONY
PINELLI, ALAN R. BRUNELL AND EDWARD R. THEOBALD
This matter comes before the court upon the court's Opinion and Order
of March 29, 2004, which, infer alia, ordered Anthony Pinelli,
Alan R. Brunell and Edward R. Theobald to submit detailed accountings of
improperly obtained attorneys fees in order that a final sanction could
In an order dated October 2, 2003, the court advised and gave notice to
attorneys Edward R. Theobald, Alan R. Brunell and Anthony Pinelli
(collectively "counsel") that the court intended to proceed on a Rule to
Show Cause as to why sanctions should not issue. See Minute
Order of October 2, 2003 [116-1]. In that order the court stated that a
Rule to Show Cause would be issued expeditiously. On October 8, 2003, the
court issued the Rule to Show Cause, detailing the allegedly sanctionable
conduct of counsel, and allowed counsel 45 days to respond in writing.
See Rule to Show Cause [117-1].
On November 24, 2003, counsel filed their responses to the Rule to Show
Cause, as well as numerous motions to dismiss the Rule to Show Cause and
a motion for recusal. On March 29, 2004, the court denied counsels'
motions to dismiss the Rule to Show Cause and the motion for recusal.
See Schmude v. Sheahan. ___ F. Supp.2d ___, 2004 WL
718501 (N.D. Ill. March 29, 2004). In that order the court proceeded to
find that counsels' conduct was sanctionable, stating:
The court finds that attorneys Edward R. Theobald,
Alan R. Brunell and Anthony Pinelli have disobeyed
the orders of the United States District Court and
acted improperly by seeking and obtaining numerous
awards of attorney fees, as improperly appointed
counsel, in the Circuit Court of Cook County,
after the entire cause of action had been removed
to the United States District Court, Further,
counsel proceeded with that conduct after a motion
to remand had been denied, while that issue of
remand was on appeal in the Seventh Circuit and
after the Seventh Circuit's decision, after they
were aware that the court was handling issues of
appointments and awards of attorney fees pursuant
to 55 Ill. Comp. Stat. § 5/3-9008 for other
attorneys in the case, and despite the court's
repeated admonitions that further litigation in
the state court would be in contravention of the
federal court's jurisdiction and improper.
Additionally, the court finds that the statements
and actions of each attorney violated then-duty
of candor to the court. The sanctionable conduct
of each officer of the court was willful,
intentional and repeated, and was an attempt to
circumvent the United States District Court's
removal jurisdiction. Attorneys Edward R.
Theobald, Alan R. Brunell and Anthony Pinelli are
hereby sanctioned pursuant to the court's inherent
Id. at * 43. The court sanctioned counsel, ordering
disgorgement of all improperly acquired attorney fees and payment of a
$5,000.00 fine. See id. at * 44. In order to assess
the exact amount of disgorgement, the court ordered that counsel file "a
detailed accounting of all fees requested and received in the Circuit
Court of Cook County which relate to this civil matter, including copies
of all pleadings filed by counsel orders entered by the Circuit Court of
Cook County, and all fee petitions submitted to date" within 28 days
of the court's order. See id. (emphasis added). The
court stated that "[o]nce counsel submit such accountings, the court will
enter an order requiring counsel to disgorge those improperly acquired attorney fees in a specific
dollar amount to the source of such funds by May 28, 2004." See
On April 26, 2004, counsel submitted their accountings to the court.
See Accounting of Fees, Expenses and Costs Requested and
Received by Anthony Pinelli [168-1]; Accounting of Fees, Expenses and
Costs Requested and Received by Alan R, Brunell [170-1]; Accounting of
Fees, Expenses and Costs Requested and Received by Edward R. Theobald
In order to fully understand the sanctionable conduct underlying this
judgment and the protracted nature of this matter, with an abundance of
caution, the court finds that a recitation of the facts underlying the
Rule to Show Cause is again necessary.
II. BACKGROUND OF RULE TO SHOW CAUSE
This case arises out of the death of Louis Schmude. Schmude died on May
7, 2000, while in the custody of the Cook County Sheriff's Department. In
the resultant lawsuit, Plaintiff (hereinafter "the Estate") claimed that
Defendants*fn1 were liable under 42 U.S.C. § 1983 and various state
law theories for damages arising out of Schmude's death. A detailed
background concerning the procedural history of this case is necessary to
place the Rule to Show Cause and the instant judgment in context.
A. The State Court Civil Action and Subsequent Removal to
On June 20, 2000, the Estate filed its original complaint in the
Circuit Court of Cook County, naming only one Defendant, Cook County
Sheriff Michael Sheahan (hereinafter "the Sheriff). On June 27, 2000, the
Sheriff was served with process. The Cook County State's Attorneys Office determined that a conflict of interest would exist if it
represented the Sheriff, and so on July 6, 2000, Tyrone C. Fanner, Brian
F. Hynes and Michael K. Forde of the law firm of Mayer, Brown & Platt
were appointed to represent the Sheriff as Special State's Attorneys in
the Circuit Court of Cook County by the Honorable David R. Donnersberger,
the judge before whom the case was pending.
On July 26, 2000, a Cook County Circuit Court judge granted the Estate
leave to file an amended complaint, naming three individual Sheriff's
Deputies, William Spate, Patricia Pultz and Larry Koscianski, as
additional Defendants. On that same day, the Estate had summonses issued
for all three additional Defendants.
On July 27, 2000, one day after the Estate filed its amended complaint,
the Sheriff filed a Notice of Removal in the United States District Court
for the Northern District of Illinois. Attached to the Sheriff's Notice
of Removal was a copy of the original complaint, which named only the
Sheriff as Defendant. At the time of removal, the Sheriff was the only
Defendant served with process. Several weeks after the removal, the Cook
County Sheriff's Department served Koscianski and Pultz with notice of
the state court proceeding and a copy of the amended complaint Spatz was
never formally served with process in this case.
After removal, on December 22, 2000, attorneys Theobald and Brunell
filed their personal appearances in the federal court, along with motions
to be appointed as Special State's Attorneys to represent Defendants
Spatz and Koscianski. One week later, on December 27, 2000, attorney
Michael Ficaro filed his personal appearance in the federal court, along
with a motion to be appointed as a Special State's Attorney to represent
Defendant Pultz. In these motions, counsel indicated that the individual
Defendants would ordinarily have been represented by the Cook County
State's Attorneys Office; however, due to a conflict of interest, the
Cook County State's Attorneys Office could not represent them. Counsel further indicated that an
Illinois statute provided that the court in which a case is pending may
appoint an attorney as a Special State's Attorney for the limited purpose
of representing a party in that case. On December 27, 2000, the court
took these motions under advisement. The Rule to Show Cause had its roots
in these motions.
B. The State Court Criminal Action and Resultant Stay of
Proceedings in Federal Court
One month before removal, on June 22, 2000, Spatz, Pultz and Koscianski
were indicted and charged with first-degree murder in connection with the
death of Louis Schmude. Thus, in addition to defending themselves against
civil claims in the federal court, all three individual Defendants were
defending themselves against criminal charges brought by the Cook County
State's Attorneys Office in the Circuit Court of Cook County. On December
29, 2000, the federal court stayed all proceedings in the civil case
pending the outcome of the criminal prosecution.
On January 22, 2002, the criminal trial began. On March 12, 2002, in a
bench trial before the Honorable Ronald A. Himel, all three Sheriff's
Deputies were acquitted of the charges against them.
C. The Stay of Proceedings in Federal Court Lifted
With the criminal trial concluded, the court returned to the civil
matter. On March 18, 2002, after the conclusion of the criminal
prosecution, attorney Theobald, on behalf of Spatz, filed a Renewed
Motion to Remand to the Circuit Court of Cook County. At the March 22,
2002 hearing on the matter, the following exchange took place:
One of the issues the Court must deal with before
deciding to lift the stay is who it is who will
represent the defendants in this case, the
individual defendants Spatz, Pultz and Koscianski.
Three attorneys have asked this Court to appoint
them Special Assistant State's Attorneys pursuant to some Illinois statute, And I
have some doubts about the applicability of that
statute to this situation.
. . .
But I am going to ask that the plaintiffs and all
counsel brief this issue of the applicability of
the Illinois statute, which counsel suggests
But beyond that, if the Court does have the
obligation or the discretion to appoint counsel as
Special Assistant State's Attorneys, I will be
candid with you and tell you that it is not likely
that the Court would appoint any attorney who has
previous experience with the State's Attorneys
office. And each of the movants here who are
asking to be appointed attorneys, Special
Assistant State's Attorneys, in their curricula
vita or resume make a point of saying that they
were in that office at some point in time or for
some extended period of time.
And I will take this position initially, without
ruling on it today, that it would be better to
start, if at all, with attorneys who have not had
experience in that office because of the
particular relationship between the Sheriff and
the State's Attorney's Office, given the
background in this case, which involves the recent
So the first issue is whether that Illinois
statute pertains. There is no Sixth Amendment
right to counsel in a civil matter. Each one of
the defendants here has the right to employ his or
her own attorney, if he or she chooses to do so.
But the motions are brought by individual
attorneys who are asking to be appointed Special
Assistant State's Attorneys.
And so that's the issue to brief.
The plaintiff certainly should be heard on this,
the Sheriff should be heard, and each individual
movant also should be heard.
And so you can submit simultaneous briefs on this
issue within 21 days.
Judge, I'd like to point out that that is not
before the Court right now. The motion that I
filed on behalf of William Spatz is to remand this
case back to state court because
Well, you're not in the case. You have filed an
appearance, but along with that appearance you
have filed a motion to be appointed a Special
Assistant State's Attorney to represent Spatz. And
what I'm saying is that motion may not be granted.
. . .
. . . But notwithstanding any ruling, my client
wants me as his attorney, regardless of any
appointment by the State's Attorney's Office or
not. And I'm asking under the law that the case go
back to state court, because it was clearly
Well, if you are withdrawing are you
withdrawing your motion to be a Special Assistant State's Attorney in this case?
. . .
At this particular time, sure.
The motion I presented today was to remand back to
state court. Not to be appointed anything.
Are you making a motion to withdraw your motion to
be appointed as Special Assistant State's
Well, the: motion I filed today, Judge, is to
remand it. So that's 1 don't know how to
respond to that.
Well, I construe your answer is that you are not
making a motion the [sic.] withdraw the
So to deal with this, you have 21 days to submit
simultaneous briefings on the issue that I have
discussed. And we will take it one step at a time.
Judge, if Imay speak on behalf of Miss Pultz. My
name is Michael Ficaro. Before the Court was my
petition. I would withdraw my petition to be
appointed Special Assistant State's Attorney by
this Court and join in the motion for remand to
. . .
We will get to that in due course.
But if you are making a motion to withdraw your
motion to be appointed a Special Assistant State's
Attorney, your motion is granted. And if you want
your appearance to be as private counsel
for Pultz is it?
Yes, your Honor.
certainly your appearance would be
So are you filing an appearance as her private
attorney in this matter?
I have not yet filed an appearance in the court.
I'm here on the remand, your Honor. And most
respectfully, I don't know if the Court has had
the opportunity to review Mr. Theobald's remand
motion. It appears
So are you making a motion to withdraw your motion
to be appointed a Special Assistant State's
Attorney? MR. FIGARO:
And on behalf of Mr. Spate I will withdraw the
motion the petition that I filed, and in
Mr. Brunell's stead we will withdraw on Mr.
Koscianski's behalf. So that issue is no longer
before the Court.
. . .
All right. So very well.
Then there no longer is the issue of die
appointment of Special Assistant State's
Then what is before the Court is a motion to
vacate the stay. That motion is granted and we
will brief the issue of remand,
. . .
So the stay is granted only to the extent now to
deal with the issue of remand.
Trans, of March 22, 2002 Hearing, pg. 3-10.
At this hearing, counsel for the individual Defendants withdrew their
motions to be appointed as Special State's Attorneys. Attorney Brunell
was not personally present, but attorney Theobald represented that he had
the authority to appear in attorney Brunell's stead and to withdraw the
motion. Thus, attorneys Theobald, Ficaro and Brunell appeared in this
matter solely as private attorneys representing Defendants Spatz, Pultz
and Koscianski, respectively.
D. Proceedings in Federal Court Subsequent to the Stay Being
With the matter of representations seemingly settled, the court and the
parties then proceeded with Defendant Spate's March 18, 2002 Motion to
Remand to the Circuit Court of Cook County. On April 22, 2002, the court
issued an eight-page opinion denying Defendant Spate's Motion to Remand
to the Circuit Court of Cook County. See Schmude v. Sheahan,
198 F. Supp.2d 964, 968 (N.D. 111. 2002). On April 24, 2002, Defendant
Spate filed a Motion to Reconsider the Court's April 22, 2002 Ruling,
which the court subsequently denied. Thereafter, on May 17, 2002,
Defendant Spate filed a Motion to Certify the Court's April 22, 2002
Ruling Pursuant to 28 U.S.C. § 1292(b), which the court granted. On June 14, 2002, the Seventh Circuit
denied Defendant Spate's Petition for Leave to Appeal. Thus, these
rulings conclusively stated that the court had jurisdiction over the
On May 8, 2002, the court completely lifted the stay of proceedings in
this matter. On that same day, Defendant Pultz filed a motion for leave
to file the personal appearance of Anthony Pinelli as additional counsel,
which the court routinely granted. Defendant Pultz had two private
Again, at this time, the individual Defendants were represented by
private counsel, as the motions to be appointed as Special State's
Attorneys had been withdrawn. On July 15, 2002, Defendants Spatz,
Koscianski and Pultz filed a Motion to Dismiss pursuant to Federal Rules
of Civil Procedure 4(m), 12(b)(4), 12(b)(5) and 12(b)(6). On December 6,
2002, the court denied the Motion to Dismiss for failure to state a claim
under Rule 12(b)(6). On April 23, 2003, the court denied the remaining
grounds raised in the Motion to Dismiss. See Schmude v.
Sheahan, 214 F.R.D. 487 (N.D. 111. 2003).
E. The Issue of Being Appointed as Special State's Attorneys
On May 20, 2003, attorney Ficaro filed a motion to withdraw as counsel
for Defendant Pultz. On May 23, 2003, a hearing on the matter was held.
At that tune, the following exchange took place:
. . .
Now who is moving to withdraw?
Mr. Ficaro is moving to withdraw for Patricia
. . .
Where is Mr. Ficaro?
MR. THEOBALD: He has a hearing in the Daley Center, Judge.
Mr. Ficaro is not here,
I'm standing in in his stead. He has got two
hearings over there.
If he withdraws, who is coming in?
Judge, I already have an appearance on file as
co-counsel for Miss Pultz, and I will remain.
You are her private attorney?
No. Judge, I am appointed by the Circuit Court of
What makes you think so?
What makes you think so?
I have an order from Judge Lott in Chancery Court
When did that occur?
Last May, Judge.
In this case?
Yes. No, not in this case.
We filed a petition with the agreement of the Cook
County State's Attorney seeking to be appointed
and seeking to represent Miss Pultz, and they
agreed to that order.
The order was entered on July 6, 2000, with
respect to Special State's Attorneys by Judge
Donnersberger, or someone with that name.
With respect to the Sheriff, yes, your Honor not
the individual defendants.
Okay. But you are not appointed counsel in this
MR. PINELLI: Yes, I am. Yes, Judge.
Let me see a copy of the order.
Judge, I didn't bring it with me today. I will
have it here in half an hour.
Once this case was removed, then no Judge in the
state court could issue any orders in this case.
Judge, we didn't file this case or indicate that
we were seeking any order with respect to any
matter before your Honor. We filed the petition in
the Circuit Court of Cook County seeking to have
Not in this case.
On behalf of the defendants.
After it was here? After it was here?
After this case was removed, yes, sir.
Then you cannot do that.
I'm talking to one attorney at a time.
Well, I'm the same thing.
Well, no you are not. You are not special
attorneys appointed to this case. Once this case
was removed, it was removed, and no attorney, once
removed, could go before any state judge and file
a motion. And any order that would be entered
under those circumstances would be an improper
order and unenforceable. Once the case is removed,
just this Court makes such decisions. You are not
an appointed attorney in this case, nor is Mr.
Theobald. If you are here, it is because you are
employed by individuals.
Judge, I have my appearance on file on behalf of
Miss Pultz, and I intend to litigate this matter
and I will consider what you have said. COURT:
Are you telling me that once this case was removed
to the federal court, notwithstanding removal that
you went before a state judge and filed a motion?
Not a motion, a petition.
A petition. A pleading.
A separate lawsuit by Miss Pultz seeking to have
counsel appointed on her behalf.
Could I explain, Judge?
I am involved in this too.
We will get to you, Mr. Theobald.
Any order that was entered by any state judge
appointing an attorney to represent a party in
this case, once this case was removed to the
federal court, is void. That applies if
that is what you did, if you, knowing of the
removal, filed a petition or a motion before a
state judge, that was improper conduct. And any
order that a judge entered, once this case was
removed to the federal court, was an improper
He or she acted without jurisdiction.
You did the same, Mr. Theobald?
. . .
A new independent action was filed, with the
agreement of the Circuit Court, with the agreement
of the State's Attorney of Cook County. I, Mr.
Pinelli, Mr. Brunell and Mr. Ficaro were appointed
as Special State's Attorneys under a State Statute
to represent them here. And this has been going on
for probably well, I have been practicing
for 29 years, and that's been the procedure, to go
before a state court judge. The only time that a
federal court judge appointed a Special State's
Attorney that I know of is when Judge Bua
appointed me to represent the Sheriff 15 years
Once the case is remanded [sic.] to the
federal court, the state court loses jurisdiction
and cannot act with respect to that case any
If you want to be here in this case, it is only as
private counsel. As a matter of fact, several hearings back, when you filed
a motion here with respect to being appointed a
Special State's Attorney, the Court made some
comments, and you then withdrew the motion,
I don't know if you then went to the state court.
I don't know if you did that. But once the case is
in the federal court, no state judge can enter any
order in that case. The state court has lost its
And so if you are if you think that you
are Special State's Attorneys in this case, that
is not the case.
. . .
But we I would disagree we have
been appointed, we are here as private counsel,
whatever, and we are we are here.
Well, you are here only if you choose to act as
private attorneys. And if that's what you want to
do in this Court, you can be here as private
But you are not special attorneys as far as this
Court is concerned.
We are just asking that Mr. Ficaro's appearance be
My appearance has been on file. You gave me leave
to appear as Anthony Pinelli, Attorney at Law,
You want to appear as a private attorney?
I want to continue in this matter. I will consider
what your Honor has said today.
It's not consideration, it's an order
I understand it's an order.
Who is going to pay your bill?
Idon't know the answer to that as I stand
But it will not be Cook County and it will not be
the State's Attorney.
Do you want to