Plaintiff’s Attorney Unethically Procured Settlement According To Complaint Filed Before Illinois Attorney Registration And Disciplinary Commission

December 20, 2018

In Vandenberg v. Brunswick et al., Patton & Ryan represented Brunswick, the manufacturer of the yacht, from which the Plaintiff fell while the boat was being illegally operated as a commercial charter. After a four-week trial, the jury sent a note while deliberating that forecasted a defense verdict; but the Plaintiff’s attorney, Mark McNabola, convinced the court’s clerk to tell him the contents of the note a half hour before Patton & Ryan or its client learned of its existence. During that time, Mr. McNabola negotiated a multi-million-dollar settlement while doing everything in his power to conceal the contents of the note from the defense so that he could get an order dismissing the case pursuant to the settlement. After the jury’s note was eventually answered by the court, the jury nearly immediately returned a verdict for the defense.

Patton & Ryan immediately filed post-trial motions to vacate the settlement and to have an evidentiary hearing to deter- mine the level of inappropriate behavior in which Mr. McNabola engaged. Patton & Ryan then began an all-encompassing post-trial evidentiary process in order to vacate the fraudulent settlement, of which the Illinois Attorney Registration and Disciplinary Commission (ARDC), the body responsible for safeguarding the ethical canons governing the practice of law in Illinois, took particular notice.

After what can only have been a lengthy investigation, the ARDC, has found that Patton & Ryan’s accusations of fraud during the post-trial process in Vandenberg had merit. The Administrator of the ARDC filed an eight-count Complaint against Plaintiff’s attorney, Mark McNabola, on October 9, 2018. The first four counts of that Complaint lay out in excruciating detail all of Mr. McNabola’s actions that were in direct violation of ethical rules during the Vandenberg case.

The Complaint details extensive unethical actions regarding other cases and fee arrangements by Mr. McNabola that began as early as 2003, alleging that he knowingly assisted other attorneys in violating the Rules of Professional Conduct in Counts V through VIII. The Complaint explains how Mark McNabola violated his duty to be honest with his own client regarding fees he would charge them for litigation expenses in Counts I and II, t also alleges that he retained consulting lawyers to whom his clients would ultimately owe payment without first obtaining their consent. In Count IV, the Complaint also describes Mr. McNabola’s knowingly false and misleading statements to the court in a June 15, 2015 post-trial pleading. Notwithstanding the seriousness of these counts alone, Count III describes an even more shocking disregard for the most basic ethical rules shown by Mr. McNabola’s actions during the settlement process of the Vandenberg case.

Count III describes Mark McNabola’s inexcusable failures to provide competent representation to his client regarding settlement and to follow his client’s direction to settle his case in a timely fashion. Next, the Complaint points out that Mr. McNabola inappropriately communicated with a judicial official outside the presence of the parties “by conduct including inducing Agree to read Respondent the content of the jury note without all the parties present and without the judge’s consent and without disclosures to all parties. . . .” (ARDC Complaint, ¶99g). Further, the ARDC’s Complaint explains that

Mr. McNabola made “material omissions of fact, by conduct including failing to disclose to Patitucci, Patton, and the Court Respondent’s knowledge of the content of the jury note both before and after settlement negotiations and before the order dismissing the case was entered. . . .” (Id. at ¶99h). Finally, the ARDC describes Mr. McNabola’s fraudulent actions by explaining that he “[failed] to apprise Patitucci, Patton, and the court of his advance notice of the content of the jury note.. . .” (Id. at ¶99i).

This case serves as a cautionary tale about the lengths to which some attorneys will go in order to procure a settlement for their clients. Patton & Ryan’s litigators are prepared to deal with, even the most surprising situations, quickly and effectively. Without the swift and immediate response of Patton & Ryan’s trial attorneys in filing necessary post-trial motions, this staggeringly unethical behavior may have gone unchecked.