United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole Magistrate Judge
Opinion revisits plaintiff's counsel's petition for
an award of attorney's fees pursuant to 42 U.S.C.
§406(b)(1)(a). Normally, this should be an uncomplicated
and straightforward matter. This is one of those times when,
unfortunately, it is not.
discussed in the previous Order, [Dkt. #58], Mr. Rose filed
the petition on March 15, 2017, more than two years after the
Commissioner sent out the Notice of Change in Benefits on
November 22, 2014. In his petition, counsel claimed the first
he heard of the Commissioner's decision was in a notice
dated November 23, 2016. This notice was sent to him as
counsel of record, and the Commissioner has submitted a copy
of the notice sent to him on November 22, 2014. The notice
was sent to Mr. Rose's office address at 799 Roosevelt
Road in Glen Ellyn, Illinois. [Dkt. #59-2]. Mr. Rose claims
that he never received the notice because he “had
previously closed his office at the said location and had
begun using a post office box” as his address. [Dkt.
#60, Page 2 ¶3]. Significantly, he doesn't say when
he moved. As we shall see, the point is important, and the
search of court electronic filing records shows that as
recently as January 31, 2016, Mr. Rose was consistently
filing cases and appearances listing 799 Roosevelt Road as
his address and had been doing so for about fourteen months
after he now claims he closed his office. See Abbott v.
Colvin, No. 16-1811, Dkt. # 1 (complaint); Lattanzio
v. Colvin, 15-11868, Dkt. #1 (complaint), #3
(appearance); Shoffner v. Colvin, No. 15-9187, Dkt
#1 (complaint), #3 (appearance); Herwalt v. Colvin,
No. 15-9012, Dkt. #1 (complaint), #3 (appearance); Stanic
v. Colvin, No. 15-8425, Dkt. #1 (complaint), #3
(appearance); Filipos v. Colvin, No. 15-7719, Dkt.
#1 (complaint), #3 (appearance); Colangelo v.
Colvin, No. 15-6777, Dkt. #1 (complaint), #4
(appearance); Guest v. Colvin, No. 15-2843, Dkt. #1
(complaint), #3 (appearance); McWilliams v. Colvin,
No. 15-1588, Dkt. #1 (complaint); #3(appearance); Ryan v.
Colvin, No. 14-10282, Dkt. #1 (complaint), #3
(appearance); Tapia v. Colvin, No. 14-10170, Dkt. #3
(complaint), Dkt. #4 (appearance).
every one of those cases was initiated after November 2014,
counsel is either manufacturing the excuse of closing his
office prior to the notice sent to him or is so lackadaisical
as to file over a year's worth of documents in federal
court - in clear violation of the rules - without noting his
purportedly new address and continuing to use his
“old” one. Common sense and human experience -
which always have a role to play in the solution of legal
problems, cf. United States v. Montoya De Hernandez,
473 U.S. 531, 542 (1985); United States v.
Reichling, 781 F.3d 883 (7th Cir. 2015);
Cooney v. Rossiter, 583 F.3d 967, 971 (7th
Cir.2009); National Amusements, Inc. v. Town of
Dedham, 43 F.3d 731, 743 (1st Cir. 1995);
Greenstone v. Cambex Corp., 975 F.2d 22, 26 (1st
Cir.1992) (Breyer, C.J.); Posner, How Judges Think, 116
(Harvard University Press 2008) - counsel against blind
acceptance of Mr. Rose's “explanation [which is]
contrary to common sense and experience.” United
States v. Ali, 952 F.2d 405 (7th Cir. 1992).
there is even a clearer case of misrepresentation here. As
already noted, counsel originally claimed that he first
learned of the administrative resolution of plaintiff's
case in November 2016 - by way of the November 23, 2016
notice. [Dkt. #56, at 2 (“Counsel received this
information toward the end of November, 2016.”)].
Confronted with not only the November 2014 notice, but a
second notice dated August 16, 2016 [Dkt. #59-3],
counsel was forced to admit in his reply brief that he lied
to the court about not receiving any notice until
November of 2016. He claimed he “did not act on that
[August 2016] document because his experience told him to
wait for a second notice which [he says] frequently revised
the relevant information provided by the first notice.”
[Dkt. #60, ¶5]. Whatever counsel's experience in
that regard might be, it does not account for or justify
representing to the court that he received no notice until
November 2016. There are many ways to deal with what are
perceived to be impediments in the judicial system. Lying is
not one of them. Cf. Bryson v. United States, 396
U.S. 64, 72 (1969).
not only dallied in filing his fee petition, he dallied this
entire proceeding - repeatedly. When counsel delays in
pursuing a case, the back benefits eventually found to be due
the plaintiff accumulate. But as the Supreme Court said in
Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002),
“[i]f the attorney is responsible for delay, for
example, a reduction is in order so that the attorney will
not profit from the accumulation of benefits during the
pendency of the case in court.” And a plaintiff suffers
needlessly when his lawyer does not take appropriate action
to see that the award is promptly distributed. The
Commissioner explains that, due to the administrative
niceties of this case, that accumulation was not terribly
significant. That may be so when measured against the
Commission's total obligations. But under that test, any
impropriety or delay would automatically be excused. That
Rose needed a total of sixteen months to file his memorandum
in support of his motion for reversal of the
Commissioner's decision. [Dkt. #20, #38]. He sought, and
was granted, five extensions of time, totaling an additional
thirteen months. The excuses in this case, like those in so
many of his other cases, varied, but they always involved the
same attempted justifications that he has been using in case
after case, with judge after judge, year after year. There
was the claimed illness of his wife, who he said also was his
secretary [Dkt. #21]; vacation [Dkt. #25]; power outages
[Dkt. #29]; his own illness [Dkt. #31]; an accumulated
backlog of work [Dkt. #34], etc. A review of Mr. Rose's
cases reveals that these are the standard excuses used
always. And yet, the record in this and other cases reveals
that he continues to take on work and clients hopelessly
inconsistent with his claimed incapacity to perform; he does
not cease taking vacations; does not either replace his
“secretary” or bring on someone to aid her; and
despite clear and unambiguous ethical requirements, he does
not bring on either other competent lawyers to help him or
send cases out to others so that they may be properly and
amusingly, counsel labeled his third, fourth, and fifth
motions for extension of time as his third motion for an
extension of time, as though mislabeling would successfully
deceive. Rebirth Christian Academy Day Care, Inc. v.
Brizzi, 835 F.3d 742 (7th Cir. 2016). It did
not. A litigant cannot use phrases and descriptions any way
he pleases, and certainly not to fool the court. Blue
Cross Blue Shield of Massachusetts, Inc. v. BCS Ins.
Co., 2011 WL 6382203, 2 (7th Cir. 2011).
each case, Mr. Rose filed his motion for an extension of time
well after the brief had been due, thereby in effect
knowingly creating a situation in which he could obtain an
extension by default. This is an all too common practice that
courts generally do not tolerate once, let alone repeatedly,
especially when the excuses are almost always the same and
could have been remedied and avoided. See page 5,
n.1. See e.g., Connecticut Gen. Life Ins. Co. v. Chicago
Title & Trust Co., 690 F.2d 115, 115 (7th Cir.
1982)(Posner, J.); Hare v. Comcast Cable Commc'ns
Mgmt., LLC, 564 F.App'x 23, 24 (4th Cir. 2014);
In re Energy Res. Co., Inc., 82 B.R. 172, 173 (D.
Mass. 1987); G & G Closed Circuit Events, LLC v.
Castillo, 2016 WL 3551634, at *7 (N.D. Ill. 2016).
from a small firm I am not unsympathetic to claims by an
attorney that make timely performance difficult. But, Mr.
Rose continuously has used the excuse of the size of his
practice as a basis for year after year flouting the rules by
which all other lawyers have to live. There aren't
special rules and special deadlines for sole practitioners.
See Harrington v. City of Chicago, 433 F.3d 542, 548
(7th Cir. 2006). “[N]eglect due to a busy schedule is
not excusable, ” and there is a “limit to the
quantity of cases a sole practitioner can professionally
handle by himself at any one point in time.” Id.
See also G & G Closed Circuit Events, LLC v.
Castillo, 2016 WL 3551634, at *8 (N.D. Ill. 2016). The
Rules have equal application to sole practitioners.
Netsphere, Inc. v. Baron, 2013 WL 12128675, at *2
(N.D. Tex. 2013); Davis v. Catholic Univ. of Am.,
1999 WL 813663, at *5 (D.D.C. 1999); Bello v. Bank of Am.
Corp., 320 F.Supp.2d 341, 348 (D. Md.
comes a point where certain excuses cannot be accepted as a
justification for an attorney's behavior - especially
when those excuses are repeated over a long period of years,
no attempt is made to mitigate the situation, and no
meaningful curative action is taken. Cf. Harrington,
433 F.3d at 548. “Common sense dictates that there is a
limit to the quantity of cases a sole practitioner can
professionally handle by himself at any one point in time.
Although [counsel] expressed at oral argument that he had
done the best he could in this case, he appears to have
exceeded that limit here.” Id.
excuses offered in this case are the same or very similar to
the ones Mr. Rose continually advances and which he has been
told continually he cannot rely on. Despite being told that
he must do something his situation, the problems continue to
persist and to mount. Indeed, we know of no lawyer who has
been accorded as much leeway and courtesies as has Mr. Rose.
All to no avail, despite warnings and pleas and threats.
See, e.g., the Orders in Filipos v. Colvin,
15 C 7719 [Dkt. #21] (rule to show cause why Mr. Rose should
not be held in civil contempt and sanctioned for failure to
follow court order); Goznikar v. Colvin, 11 C 7339
[Dkt. #35]; Mosteller v. Astrue, 11 C 1640 [Dkt.
#41]. These are but a handful of the Orders that have been
issued by magistrate judges of this court in Social Security
cases. See, also., Ackerman v. Astrue, No. 11 C
8985; Kelly v. Astrue, No. 12 C 5580; Gates v.
Astrue, No. 12 C 458; LaGrand v. Astrue, No. 12
C 6264. In each of the representative cases we have
discussed, Mr. Rose had basically the same excuses for his
acts and omissions as he raises here. And in each, his
reasons for non or flawed performance have been the same.
hindsight, granting Mr. Rose's repeated requests for
extensions in this case seems ill-advised. But I am generally
disinclined to deny motions for extension in Social Security
disability cases, even when excuses mount and seem flimsy,
because harm may befall the client, as opposed to counsel.
But a line has been crossed in this case - if it has not been
crossed long ago - and granting counsel's extremely late