GENEVA – A DeKalb man is suing two lawyers in Kane County alleging they engaged in a “sexually charged” relationship with his ex-girlfriend which led him to plead guilty to a felony so she would win a custody dispute with him, court records show.
According to court records, the ex-girlfriend never had an actual sexual relationship with either attorney.
Jason Melahn’s lawsuit, filed last year and still pending with a July 14 court date, alleges criminal attorneys Brandon J. McNulty and Todd D. Cohen engaged in “attorney misconduct and malpractice” and seeks more than $50,000 in damages.
In court papers responding to Melahn’s claims, McNulty and Cohen denied all the complaints and allegations.
“My clients adamantly deny Mr. Melahn’s allegations and will present a vigorous defense against them in the appropriate forum, a court of law,” their attorney John J. Duffy stated in an email response to a request for comment.
Melahn’s attorney, David Cerda, did not respond to an email message seeking comment.
Cohen Donahue & Walsh PC has offices in Kane, DeKalb and McHenry counties, each doing business under a different name, according to the lawsuit.
McNulty registered as McNulty Law Group with offices in Elgin and Geneva as of February 2019, but is still linked to the other law firm, according to online records.
McNulty and Cohen represented Melahn after he was charged with several felonies on March 31, 2016, the most serious being two Class 1 felony charges for possession and delivery of 9 pounds of marijuana, according to the lawsuit and court records.
At the time, his fiancee and mother of his two daughters had referred him to the Cohen Donahue & Walsh P.C. law firm to represent him, according to the lawsuit.
Couple splits up
While the criminal case was pending, Melahn’s relationship with his girlfriend ended in fall 2018 and she hired an attorney to represent her in a custody dispute, the lawsuit stated.
She remained in Melahn’s home in Algonquin while he moved in with his mother in Sycamore, the lawsuit stated.
From April 2016 to December 2018, his ex-girlfriend began texting McNulty, and from September to November she was texting Cohen, the lawsuit stated.
To McNulty, she sent nude photos of herself and promises of sex, while seeking to have Melahn “locked up” so she could win her domestic dispute, according to the lawsuit.
“Not only did she want full-time custody of their children, (her) personal animus toward Jason led her to openly wish and ask for Jason’s incarceration,” the lawsuit stated.
Melahn had told his attorneys his No. 1 goal was to avoid incarceration, the lawsuit stated.
“In November 2018, on the advice of McNulty and Cohen, Jason pled guilty to his pending criminal charges for which he faced the likelihood of incarceration,” the lawsuit stated. “Jason would not have accepted that advice had he known of McNulty and Cohen’s relationships with (his ex-girlfriend).”
Text messages discovered
Melahn discovered the text messages between his ex-girlfriend and his attorneys in December 2018, the lawsuit stated.
In September 2018, Melhan’s ex-girlfriend texted McNulty a picture of herself in the bathtub to which the attorney allegedly texted back, “Oh my!! Thats pretty hot!! [sic],” the lawsuit stated.
Again in September 2018 and in October 2018, she sent more photos of herself in the bathtub to McNulty, the lawsuit stated.
In November 2018, McNulty texted the ex-girlfriend, “I love you,” the lawsuit stated.
On Sept. 27, 2018, she texted Cohen, “STOP RUINING MY CASE,” in all capital letters, “apparently a reference to Jason being kept out of jail,” the lawsuit stated.
The same day, Cohen texted his client’s ex-girlfriend that she should file a paternity suit, asking, “And when are you paying up on all this legal advice,” to which she responded, “oh, you’re gonna get it,” the lawsuit stated.
“Cohen asked (her) to repay his legal advice to her (in opposition to his client Jason Melahn) with sexual favors,” the lawsuit stated.
‘Breached their duty’
“At no point during the months when these text messages were being exchanged did either McNulty or Cohen inform their client, Jason (Melahn), that they were communicating with (his ex-girlfriend) in any way,” the lawsuit stated. “Because of McNulty and Cohen’s personal relationship with (her), Jason’s adversary in a domestic relations case, they breached their duty to provide Jason with zealous, conflict-free legal representation.”
The ex-girlfriend hired Robert Klein to represent her in the custody case against Melahn, but also asked Cohen via text to message Klein “that she needed a phone and that she hated Jason,” the lawsuit stated.
“Cohen confirmed, ‘I messaged Rob,’” the lawsuit stated.
Melahn hired a new attorney to represent him in the criminal case, in which he withdrew his guilty plea. Melahn pleaded guilty again on March 4, 2021, and received 36 months of probation until March 4, 2024, court records show.
As a result of Melahn learning his lawyers “were betraying him by aiding and counseling and advising his adversary in his domestic relations case, Jason suffered and continues to suffer extreme emotional distress,” the lawsuit stated.
In addition to more than $50,000 in damages, Melahn also seeks a return of the $7,500 he paid McNulty and Cohen for his criminal defense, the lawsuit stated.
In response, McNulty and Cohen’s attorney, John Duffy, filed court papers asking a judge to dismiss Melahn’s lawsuit, arguing that their former client cannot sue them for malpractice because “Illinois requires him to plead and prove his innocence. … To prevent criminals from profiting financially from their crimes.”
Melahn admitted the judge told him he would likely sentence him to jail time, even if he agreed to probation, according to Duffy’s filing.
“Thus, plaintiff knowingly and voluntarily entered into a plea agreement with the potential for incarceration,” Duffy’s response stated. “Defendants cannot have ‘compromised’ plaintiff’s criminal case where (the) plaintiff voluntarily pled guilty with full knowledge that he may serve jail time.”
As to the claim of a “sexually charged” relationship between the ex-girlfriend and his clients, Duffy’s filing stated, “There is no alleged sexual relationship between attorney and client. Rather plaintiff alleges sexually suggestive text messaging between defendants and ... his former girlfriend and mother of his children.”
Duffy cites case law that Melahn claims only emotional damage, not any actual damages.
In response to Duffy’s filing seeking dismissal, Melahn’s attorney argued that, “Such allegations of betrayal leap off the page and cannot reasonably be said to have been overlooked.”
“This is not a run of the mill criminal defense attorney malpractice case, but rather one of egregious betrayal for which the ‘actual innocence rule’ does not apply,” Melahn’s attorney wrote. “Plaintiff has already suffered damages due to defendants’ betrayal. … by aiding and counseling and advising his adversary in his domestic relations case. Jason suffered and continues to suffer extreme emotional distress.”
Melahn’s attorney also argued that there is an exception to the actual innocence rule that Duffy cited, for an attorney’s “breach of fiduciary duties that undermine his client.”