October 8, 1997


Ms. Mary Robinson, Administrator
Attorney Registration and
     Disciplinary Commission
130 E. Randolph Dr. - #1500
Chicago, IL 60601-6219

Dear Ms. Robinson:

          Re:  Marshall J. Auerbach
               Marshall J. Auerbach & Associates, Ltd.
               180 N. LaSalle St. - #2307
               Chicago, IL 60601

The following charges of attorney misconduct are being filed against attorney Marshall J. Auerbach and Marshall J. Auerbach & Associates, Ltd. for the multiple ethical violations stated below.

Our Supreme Court has established a Rule that an attorney has an affirmative duty to make a full, complete, separate, and independent serious inquiry into the facts of a case before filing any pleading, and may not rely on the allegations made by their client. Supreme Court Rule ("SCR") 137. An attorney does not have to be sanctioned to be engaged in conduct in violation of SCR 137.

As an attorney, Marshall Auerbach knew, or reasonably should have known, that SCR 137 applies to all oral misrepresentations as well as all written representations. Fremarek v. John Hancock Mut. Life. Ins., 272 Ill.App.3d 1067 (1995) and other citations referred to therein.

Our Supreme Court has also made it a mandatory requirement that attorneys must not make any misrepresentation to the court. Illinois Rules of Professional Conduct ("IRPC") Rules 1.2(f), 3.1 and 3.3. Courts have ruled that misrepresentation, on the part of an officer of the court, includes the commission, omission, silence, and concealment of any facts to the court.

Courts have held that failure to fully comply with the requirements of SCR 137 is a "fraud upon the court".

On April 9, 1991, I employed attorney Marshall J. Auerbach and Marshall J. Auerbach & Associates, Ltd. to represent me in case no. 91-D-5122, Phyllis Alpern v. Eugene Alpern. At our first meeting, I disclosed to Marshall Auerbach ("Auerbach") certain confidential information. At no time did I authorize Auerbach to disclose any of the confidential information presented to him.

On April 10, 1991, Auerbach disclosed certain client-attorney confidential information to attorney Allen S. Gabe, the attorney who represented Phyllis Alpern.

As an attorney, Auerbach knew, or reasonably should have known, that he consciously, deliberately, intentionally, and knowingly engaged in conduct in violation of Illinois Rule of Professional Conduct Rule 1.6.

As an attorney, Auerbach knew, or reasonably should have known, that he had a fiduciary and legal duty to have, and should have, inspected the court records of the Circuit Court of Cook County relative to any actions by Phyllis Alpern against Eugene Alpern, immediately or shortly after being employed by me. All such an inquiry would entail would be less than a 5-minute visit to the court computers. If Auerbach had made such a inquiry, as he had a duty to do, he would have found that Phyllis Alpern had filed an identical action against Eugene Alpern, as case no. 90-D-2724, which had been assigned to Judge Gustafson. The current case that Auerbach was involved in, case no. 91-D-5122, was assigned to Judge Kaplan, not to Judge Gustafson.

As an attorney, Auerbach knew, or reasonably should have known, that the filing of identical cases which were assigned to different judges was part of an unlawful scheme of judge- shopping.

By failing to fulfill his fiduciary and legal duty to inspect the record of the court, he consciously, deliberately, intentionally, and knowingly engaged in actions in conniving with, and in aiding and abetting, Allen S. Gabe in the unlawful act of judge- shopping.

It is, and has been, well-established Illinois law that a lawyer may not rely on the information given him by his client, but must make a separate and independent inquiry into the facts underlying any pleading. SCR 137; 110 I.R.S. 2-611; IRPC Rules 1.2(f)(2) and 3.1.

As an attorney, Auerbach knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly not made a separate and independent inquiry into the facts underlying case no. 91-D-5122, and that he had consciously, deliberately, intentionally, and knowingly engaged in conduct in violation of IRPC Rules 1.2(f)(2), 3.1, 8.4(a)(1) and 8.4(a)(2).

As an attorney, Auerbach knew, or reasonably should have known, that, by not making the required full, complete, separate and independent investigation into the facts underlying the purported action against me, and reporting all such facts to the court and to me, he consciously, deliberately, intentionally, and knowingly engaged in fraud upon me and "fraud upon the court".

As an attorney, Auerbach knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in conduct in violation of Rule 3.3(a)(1), 3.3(a)(2), 8.4(a)(1), 8.4(a)(4), and 8.4(a)(5).

As an attorney, Auerbach knew, or reasonably should have known, that, in effect at that time, was Local Rule 90-D-2 of the Domestic Relations Division. This Local Rule required that all cases filed between the same parties and for the same action must be assigned to the first assigned judge. This rule was instituted to prevent the unlawful act of judge-shopping. As an attorney, Auerbach knew, or reasonably should have known, that the 91-D-5122 action, even if it should had been lawfully filed, must be assigned to the same judge as the 90-D-2724 action had been assigned.

As an attorney, Auerbach knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly had connived with, and had engaged in assisting another attorney in an unlawful act of judge-shopping, in violation of IRPC Rules 8.4(a)(1), (2), (4), and (5).

As an attorney, Auerbach knew, or reasonably should have known, that he had connived with, conspired with, and acted in concert with, attorneys Allen S. Gabe and Neil A. Robin in the filing of identical actions between the same parties to obtain the judge of their choice, an unlawful act of judge-shopping.

As an attorney, Auerbach knew, or reasonably should have known, that multiple courts have ruled that an attorney has a continuing duty, even after termination or withdrawal from representation, to inform the court of any and all fraud upon it.

As an attorney, Auerbach knew, or reasonably should have known, that he consciously, deliberately, intentionally, and knowingly engaged in conduct of fraud upon the court by not reporting the "fraud upon the court" by attorney Allen S. Gabe in his consciously, deliberately, intentionally, and knowingly filing of an identical case (91-D-5122) to a previously filed action (90-D-2724) in violation of Local Rule 90-D-2 of the Domestic Relations Division of the Circuit Court of Cook County, and had engaged in the unlawful act of judge-shopping.

On April 30, 1991, Mr. Auerbach was sent a Notice of Termination by facsimile. On May 1, 1991, Mr. Auerbach was sent a demand to return all monies paid by me to him and his lawfirm. [Exhibit A].

The sending of the demand to return all funds paid placed all of the funds into dispute. Pursuant to Rule 1.15(c), all disputed funds were required to be placed in a client trust account and to remain there until the dispute was resolved. At no time has this dispute been resolved.

As an attorney, Auerbach knew, or reasonably should have known, that, by not placing the disputed monies into a client trust account, he had consciously, deliberately, intentionally, and knowingly engaged in conduct in violation of Rule 1.15(c).

As an attorney, Auerbach knew, or reasonably should have known, that, by not immediately placing the disputed monies into a client trust account, he had consciously, deliberately, intentionally, and knowingly engaged in the act of conversion of his client's money into his own, violated his fiduciary duty to his client, and engaged in actions in violation of IRPC.

As an attorney, Auerbach knew, or reasonably should have known, that, by not immediately placing the disputed monies into a client trust account, he had consciously, deliberately, intentionally, and knowingly engaged in the act of commingling his client's monies with his own, violated his fiduciary duty to his client, and engaged in actions in violation of IRPC.

As an attorney, Auerbach knew, or reasonably should have known, that legal fees cannot be lawfully charged for his consciously, deliberately, intentionally, and knowingly engaging in an act in committing a "fraud upon the court" or where he consciously, deliberately, intentionally, and knowingly engaged in a purported defense of a non-legal action, an action that he knew, or should have known, had no legal basis in law. see supra. He knew, or reasonably should have known, that I had gained no legal benefit by his consciously, deliberately, intentionally, and knowingly engaging in a fraud upon me, a "fraud upon the court", and in Auerbach's participating in unlawful acts.

As an attorney, Auerbach knew, or reasonably should have known, that he had not earned any legal fees in his actions and that all fees paid to him were at all times, and remain, unearned.

As an attorney, Auerbach knew, or reasonably should have known, that he consciously, deliberately, intentionally, and knowingly had not returned unearned fees to me, and he knew, or reasonably should have known, that he had engaged in actions in violation of Rule 1.16(e).

As an attorney, Auerbach knew, or reasonably should have known, that he had not charged reasonable fees and had engaged in conduct in violation of Rule 1.5(a). Since Auerbach consciously, deliberately, intentionally, and knowingly engaged in fraud upon his client, "fraud upon the court", and engaged in unlawful acts, there is no basis in law for the charging of any legal fees in such an action.

As an attorney, Auerbach knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in conduct in violation of Rule 1.5(a).

As an attorney, Auerbach knew, or reasonably should have known, that he had a fiduciary and legal duty to report attorney Allen S. Gabe to the courts and to the ARDC of the filing of an identical action to one currently before the court, reporting that Allen S. Gabe had not informed the court of such action, and that Gabe had consciously, deliberately, intentionally, and knowingly engaged in a "fraud upon the court", and a fraud upon me.

As an attorney, Auerbach knew, or reasonably should have known, that he consciously, deliberately, intentionally, and knowingly had engaged in a violation of Himmel, and that he had engaged in actions in violation of IRPC Rules 8.4(a)(1), (2), (4), and (5).

Since Auerbach knew, or reasonably should have known, that a fraud was being perpetuated against the court and against me, he knew, or reasonably should have known, that his billing of any attorney fees to me was also part of a scheme of fraud. Further such action, as taking and holding my funds, and preventing me from purchasing any item(s) involved in interstate commerce with those funds, were a part of an unlawful scheme of interfering with interstate commerce, under the holding in U.S. v. Murphy. Auerbach knew, or reasonably should have known that he had consciously, deliberately, intentionally, and knowingly engaged in an unlawful act of interfering with interstate commerce.

As an attorney, Auerbach knew, or reasonably should have known, that he had consciously, deliberately, intentionally, and knowingly engaged in acts in violation of Rule 8.4(a)(3), and gave aid and assistance to other attorneys engaged in unlawful acts of interfering with interstate commerce.

Your investigation will result in a finding that attorney Marshall J. Auerbach and Marshall J. Auerbach & Associates, Ltd. knew, or reasonably should have known, that they had consciously, deliberately, intentionally, and knowingly entered into a course of conduct which was in violation of the Illinois Rules of Professional Conduct, including but not limited to, IRPC Rules 1.2(f)(2), 1.5(a), 1.6, 1.6(e), 1.15(c), 1.16(e), 3.1, 3.3(a)(1), 3.3(a)(2), 8.4(a)(1), 8.4(a)(2), 8.4(a)(3), 8.4(a)(4), and 8.4(a)(5), in violation of the public policy of the State of Illinois, and in violation of the law.

Auerbach knew, or should have known, that his actions were consciously, deliberately, intentionally, and knowingly creating a "fraud upon the court" and fraud upon his client, and that he had engaged in one or more unlawful acts.

I would appreciate your conducting an investigation into the above charges of unethical misconduct, and ordering restitution to me of all unearned fees.

Yours truly,



Eugene Alpern

NOTE The above charges of misconduct on the part of attorney Marshall Auerbach have never been controverted.