Editor’s Comment: As we reported last week, in Smalley Steel Ring Company v. Illinois Workers’ Compensation Commission (No. 2-07-1050WC December 12, 2008) the Appellate Court, Workers’ Compensation Division reached a unanimous ruling in which they clearly determined workers’ compensation benefits have to be paid by the insurance carrier to someone they identify as a dead person who perished during the calendar year prior to the supposed “accident.” For a variety of reasons, we consider it one of the more quizzical outcomes in Illinois legal history. The way this happened is the party who testified was an imposter named Alejandro Atilano who took on the name of the dead person Harry Diaz at the first hearing (and all subsequent appeals). While we feel the court reached the correct technical conclusion, we think it was a total waste of everyone’s time and, sadly, the insurance carrier’s money—the impersonator shouldn’t get any benefit from the ruse.
Defense counsel apparently found out about the subterfuge and tried to have the Arbitrator reverse his award—the problem is the award in the name of the dead person was already final and non-appealable. When the Arbitrator recalled his decision and denied the claim, three unsuccessful appeals followed. As we pointed out last week, we don’t think the appeals were necessary and were effectively worthless—we feel there is no circumstance in which the impersonator Atilano would be allowed by a circuit court judge to collect any monies from an award in the name of the dead man, Diaz.
Please note our readers have inundated us with both criminal and ethical concerns we did not anticipate in first reviewing this decision. One comment from a noted Petitioner’s attorney is the impersonating claimant clearly perjured himself—Alejandro Atilano had to be asked his name under sworn oath and answer “Harry Diaz.” Mr. Atilano had to know he was lying and impersonating the dead Diaz.
Our reader also pointed out if counsel for claimant knew of the ruse prior to the first hearing, he should be subject to criminal investigation for subornation of perjury for his role in misleading the Arbitrator. As a secondary concern, such actions have to be reported to the Attorney Registration and Disciplinary Commission for their investigation and input. All lawyers have a duty to report misconduct when we become aware of it under the ruling in In re: Himmel.
Following that line of thought, we point out there is no question counsel for claimant knew his client was at least arguably lying about his identity after the motion to recall the decision was heard. Despite the clear presence of evidence indicating an impersonation was being foisted upon the courts, counsel for claimant had to sign and file not one but three knowingly false pleadings at the Commission, Circuit Court of Lake County and Illinois Appellate Court. Illinois Supreme Court Rule 137 states (in pertinent part):
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
How can a pleading, knowingly signed by counsel of behalf of an impersonator be “well grounded in fact?” Our reader felt the transcript of that hearing should be sent to the Lake County prosecutor for investigation and possible criminal charges.
Another reader asked the question: can Petitioner’s attorney continue to act on this claim? Does he have a valid representation agreement with Mr. Atilano if his agreement was made to represent decedent Harry Diaz? While we believe an attorney/client relationship would be perceived, we find most curious the question in what fashion can his attorney continue to act on his behalf in accordance with the Code of Professional Responsibility.
Rule 1-102(a)(4) of the Code of Professional Responsibility requires a lawyer refrain from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
A number of readers suggested a draft in payment of the award be issued to Harry Diaz and his attorney. If it were cashed, the insurance carrier should then seek prosecution for mail fraud and bank fraud. We don’t recommend knowingly “entrapping” anyone by such a scheme. But it does beg the question: what can Petitioner’s attorney do with a draft payable to Harry Diaz and his attorney? Would negotiating such a draft, duly obtained through a hearing and ruling from the Commission, constitute acts of fraud or other illegality by the attorney? Wouldn’t Petitioner’s attorney know his client forged the endorsement to negotiate the draft? Would assisting Petitioner in accessing the proceeds of the Commission award amount to assistance in the client’s pursuit of fraud in violation of Rule 1-102(a)(4)? We cannot see how it wouldn’t.
What about the entitlement of the medical care providers to receive payment for their services rendered to Petitioner, on whose behalf an award of medical payments was made? Innocent of any fraud, are they entitled to payment for services rendered out of proceeds from the award? If so, how do they access those proceeds? Can Petitioner’s attorney ever obtain a draft in payment of the award already rendered which he can legally negotiate to pay for the medical services awarded when he currently knows of his client’s fraud? Can Petitioner’s attorney ever move forward with the permanency aspect of this claim, awarded as compensable in a decision now irreversible by the Commission? As Petitioner’s fraud is patent and recorded in court documents, we feel the prohibition against fraudulent attorney activity set forth in Rule 1-102(a)(4) precludes any attorney from further action on any further claim for Harry Diaz, decedent regardless of its procedural posture.
As we have noted above, there is no indication Petitioner’s attorney knew of Petitioner’s fraud prior to issuance of the arbitration award, nor is there any fact in the record suggesting Petitioner’s attorney made any misrepresentations to the Arbitrator or Commission subsequent to trial. There is no indication the hearing officer had any reliable information of Petitioner’s fraud prior to recalling his decision. But moving forward, we all have knowledge of Petitioner’s fraud through the factual findings of these court decisions. So how does this case move forward from its 19(b) status to a final order? If Petitioner’s attorney does pursue additional measures on Petitioner’s behalf, what is the obligation of the rest of us watching from the sidelines?
Where do we go from here?
Well, to our knowledge this is a case of first impression. We have done substantial research and there are not a lot of cases involving ethical concerns related to civil claims brought by impersonators who are doing so to fraudulently hide their backgrounds. We sincerely hope this case doesn’t start a trend.
First, we urge all of our Arbitrators and Commissioners to follow the civil litigation rule which outlines claims brought in the name of dead people are a nullity. Once the Commission or anyone knew and confirmed Harry Diaz had passed some time earlier, a claim brought and appeals maintained in decedent’s Harry Diaz’ name should have been dismissed sua sponte or on the Commission or Court’s own motion. We feel it was a complete waste of the Commission and reviewing court’s limited resources to waste time with such a claim. We don’t know if there needs to be a Commission rule to that effect but if there isn’t one, there should be such a rule.
Second, if the person whose identity has been stolen is alive, we truly feel the caption of the case has to be modified in some meaningful way to make sense moving forward. The caption should have been changed to Alejandro Atilano appearing as Harry Diaz, deceased.
Third, we assert the claim of perjury has to be forwarded to the Lake County State’s Attorney for prosecution. While we have not seen the actual hearing transcript, the Appellate Court’s decision clearly indicates claimant committed perjury. The question of subornation of perjury by counsel should also be investigated. We will let the insurance carrier and its defense counsel make the call on that potential.
Fourth, we are sending this week and last week’s article to the Attorney Registration and Disciplinary Commission to see if they feel there are any other ethical concerns we have not addressed. We want to stress we are not filing a complaint; we are simply seeking ethical guidance on an issue of first impression.
This article was drafted by Joe Needham and Gene Keefe. Please direct your replies to jneedham@keefe-law.com or ekeefe@keefe-law.com. We welcome your comments.
