On July 31, 2014, the Illinois’ Attorney Registration and Disciple Commission (ARDC) filed a one count Complaint (viewable here) against the Chicago aviation attorney who, less than five months ago, drew attention world-wide as the first attorney to file a lawsuit against Malaysia Airlines in regards to the March 8, 2014 vanishing Malaysia Airlines Flight 370, a Boeing 777 passenger aircraft from Kuala Lumpur to Beijing. The disciplinary Complaint claims the lawsuit was a “frivolous pleading.”
According to the allegations of the ARDC’s Complaint:
- On March 25, 2014, Respondent, or someone acting at her direction, using the name “Monica R. Kelly,” prepared and signed a Verified Petition for Discovery, pursuant to Illinois Supreme Court Rule 224, against the Boeing Company and Malaysian Airlines, and filed it in the Circuit Court of Cook County. …
- …Respondent certified that she had read the petition and that, to the best of her knowledge, information or belief formed after reasonable inquiry, it was well grounded in fact and was warranted by existing law.
- In the petition … Respondent alleged that she represented the estate of Firman Chandra Siregar (“Siregar”), that Siregar had been a passenger on Malaysian Airlines Flight 370, that the aircraft had crashed, that Siregar had been killed.
- Respondent’s allegations … had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence had been discovered regarding the location or disposition of Malaysian Airlines Flight 370.
- In the petition … Respondent alleged that Siregar’s estate reasonably believed that Malaysian Airlines Flight 370 had crashed as the result of negligent design, manufacture, repair and maintenance of the aircraft by the Boeing Company.
- Respondent’s allegations … had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence existed that Malaysian Airlines Flight 370 had experienced a mechanical malfunction, and that the evidence in fact showed that the aircraft had changed direction and had continued to fly for several hundred miles after its last contact with air traffic controllers.
- In March 2014, at the time Respondent filed the petition described above, Illinois Supreme Court Rule 224 authorized the filing of such a petition “for the sole purpose of ascertaining the identity of one who may be responsible in damages,” and Illinois courts had long held that a Rule 224 petition was not appropriate if the identity of any potentially-responsible defendant was known to the petitioner. (Citations omitted)
- Respondent’s petition … was frivolous, because Supreme Court Rule 224 did not permit the filing of such a petition where the “identity of one who may be responsible in damages” was known to the petitioner, and Respondent knew that the missing aircraft had been manufactured by the Boeing Company and that it was being operated by Malaysian Airlines when it disappeared. Respondent therefore had no need to discover the identity of a responsible party, and no basis for filing a Rule 224 petition.
- On March 25, 2014, Respondent conducted news media briefings in Kuala Lumpur to announce the filing of her action against the Boeing Company and Malaysian Airlines and to claim that those entities were responsible for the disappearance of Flight 370.
- On two occasions in 2013, the Hon. Kathy M. Flanagan, a Judge of the Circuit Court, had dismissed Rule 224 petitions filed by Respondent against aircraft manufacturers, on the basis that such petitions were not authorized by the rule, when the identity of a potential defendant was known to the petitioner.
- On March 28, 2014, the Judge Flanagan entered, sua sponte, a memorandum opinion and order dismissing Respondent’s petition in case number 2014L003408, in which the judge found that the petition exceeded the scope of Supreme Court Rule 224, that it was baseless, and that Respondent knew that the filing of a Rule 224 Petition was inappropriate where the identity of a potential defendant was known.
- Respondent’s filing of a frivolous pleading prejudiced the administration of justice by misusing judicial resources.
- Respondent’s filing of a frivolous pleading, and her statements to the press, prejudiced the administration of justice by publicly accusing the Boeing Company of negligent conduct in connection with Flight 370, without basis in fact.
[Bold emphasis added.]
Thus, the Complaint alleges the attorney:
“has engaged in the following misconduct: bringing a proceeding where there is no basis in law and fact for doing so that is not frivolous, by filing a pleading without valid factual or legal bases, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct (2010); and conduct that is prejudicial to the administration of justice, by wasting judicial resources by filing a frivolous pleading and wasting judicial resources, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).”
According to the Chicago Tribune:
“[h]er attorney, George Collins, said he believes Kelly had a good-faith basis to file the petition in March and said it was ‘very rare’ for the ARDC to file a complaint on such an issue. ‘If you’re going to file a lawsuit on the theory that this airplane could not have wandered off course, that there was a defect in the airplane … you have to know who made all the instruments in the airplane if you’re going to have an engineer try to figure what went wrong,’ he said.”