Filed March 21, 2005
In re Robert Isham Auler
Commission No. 02 SH 102
Synopsis of Review Board Report and Recommendation
Auler was charged in a six-count amended complaint with misconduct involving fees paid by six clients. Specifically, the complaint alleged that Respondent failed to keep a client reasonably informed about the status of a matter or to promptly comply with requests for information, (Count I); failed to act with reasonable diligence and promptness in his representation of a client, (Counts I and VI); failed to promptly deliver funds to clients that they were entitled to receive, (Counts II and IV); failed to deliver all of his clients' property, upon withdrawing from employment, (Counts II and IV); engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, (Counts III and IV); made a false statement of material fact in a disciplinary proceeding, (Count IV); failed to provide competent representation to a client, (Count VI); and advanced a claim or defense he knew was unwarranted under existing law, (Count VI). He also failed to promptly return unearned fees upon withdrawing from employment, and engaged in conduct that was prejudicial to the administration of justice and that tended to defeat the administration of justice or bring the courts or legal profession into disrepute in all six counts. Respondent admitted most of the factual allegations of the complaint, and denied some of them. He denied all of the allegations of misconduct.
The Hearing Board found that the Administrator presented clear and convincing evidence that Respondent committed all of the misconduct charged in Count I and Count V of the complaint. It made no finding as to whether Respondent's conduct was prejudicial in Count II, but found that the evidence was sufficient to prove the remaining charges, except the charge that he had failed to return all of his client's property at the end of his employment. The Hearing Board also found that Respondent had committed all of the misconduct of Counts III and IV, except that he had not engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in either count and had not knowingly made a false statement in a disciplinary proceeding, as charged in Count IV. It made no finding as to whether Respondent had failed to return all of his client's property at the end of his employment, as charged in Count IV. A majority of the Hearing Board also found that Respondent had committed all of the misconduct of Count VI, except that he had not knowingly advanced an unwarranted claim. The Hearing Board recommended that Respondent be suspended from the practice of law for ninety days, with the final thirty days stayed by one year of probation, subject to certain conditions.
The case was before the Review Board on the exceptions of the Administrator. She challenged only the recommended sanction, and suggested a nine-month suspension instead. Respondent urged the Review Board to uphold the Hearing Board's recommendation.
The Review Board affirmed the Hearing Board's findings of fact and findings of misconduct. Because of the mitigation presented, it concluded that Respondent should not be subjected to the client notification requirement of Supreme Court Rule 764(c), which arises out of a suspension of six months or more, and therefore recommended that he be suspended for five months and 25 days, and make restitution to three clients.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 02 SH 102
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant filed a six-count amended complaint against Respondent-Appellee Robert Isham Auler, charging him with misconduct involving fees paid by six clients. Specifically, the complaint alleged that Respondent failed to provide competent representation to a client, in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct, (Count VI); advanced a claim or defense he knew was unwarranted under existing law, in violation of Rule 1.2(f)(2), (Count VI); failed to act with reasonable diligence and promptness in his representation of a client, in violation of Rule 1.3, (Counts I and VI); failed to keep a client reasonably informed about the status of a matter or to promptly comply with requests for information, in violation of Rule 1.4(a), (Count I); failed to promptly deliver funds to a client that he or she was entitled to receive, in violation of Rule 1.15(b), (Counts II and IV); failed to deliver all property to which a client is entitled to him or her, upon withdrawing from employment, in violation of Rule 1.16(d), (Counts II and IV); failed to promptly return unearned fees upon withdrawing from employment, in violation of Rule 1.16(e), (Counts I-VI); made a false statement of material fact in a disciplinary proceeding, in violation of Rule 8.1(a)(1), (Count IV); engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in
violation of Rule 8.4(a)(4), (Counts III and IV), conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), (Counts I-VI), and conduct that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 771, (Counts I-VI). Respondent admitted most of the factual allegations of the complaint, and denied some of them. He denied all of the allegations of misconduct.
The Hearing Board found that the Administrator presented clear and convincing evidence that Respondent committed all of the misconduct charged in Count I and Count V of the complaint. It made no finding as to whether Respondent's conduct was prejudicial to the administration of justice in Count II, but found that the evidence was sufficient to prove the remaining charges, except the charge that he had failed to return all of his client's property at the end of his employment. Additionally, the Hearing Board found that Respondent had committed all of the misconduct of Counts III and IV, except that he had not engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in either count and had not knowingly made a false statement in a disciplinary proceeding, as charged in Count IV. It made no finding as to whether Respondent had failed to return all of his client's property at the end of his employment, as charged in Count IV. A majority of the Hearing Board also found that Respondent had committed all of the misconduct of Count VI, except that he had not knowingly advanced an unwarranted claim.
The Hearing Board recommended that Respondent be suspended from the practice of law for ninety days, with the final thirty days stayed by a one year period of probation, subject to certain conditions. The case is now before the Review Board on the Administrator's exceptions. She challenges only the Hearing Board's recommended sanction,
suggesting that a nine-month suspension would be more appropriate under the circumstances. Respondent seeks to uphold the Hearing Board's findings and its recommendation as to discipline.
Because the Hearing Board's factual findings and findings of misconduct have not been challenged, they are affirmed. The facts are briefly summarized below.
Count One - Stuart Toft
Respondent had known Stuart Toft for approximately 35 years, and had represented him in several legal proceedings. In 1998 Toft consulted him regarding three matters. The first involved his company, Alliance Communications, which installed sound and video systems. Alliance had done work in Vincennes, Indiana for Digital Data Solutions, and had not been paid. Toft retained Respondent to sue for the money due.
According to Toft he also had been making approximately $400 per month buying paging services from Heartland Communications and reselling them, until Heartland breached its contract. Toft wanted to sue Heartland for damages.
Finally, Toft had failed to pay a bill for $708.32 from Midas Muffler, who sued him in small claims court. When he received notice of the suit, he tendered payment in full and the case was dismissed. A reporting service listed the case as having been dismissed due to bankruptcy, which Toft became aware of when he received a copy of the listing from his bank. According to his testimony he intended to sue Midas for defamation, although his contract with Respondent's office showed that Respondent was retained to correct the docket sheet in the case.
Toft entered into a contract with Auler Law Offices in which he agreed to pay costs and a $7,000 retainer, to be credited against one-third of any recovery, for representation in the three cases. The contract provided that the funds were actually retainers of $3,000, $3,000
and $1,000, for the Alliance, Heartland and Midas matters, respectively. Respondent and his associates prepared and filed a lawsuit in the Alliance case. The address at which service was attempted was incorrect. An alias summons was prepared, and in a letter dated April 29, 1999 from Respondent's office, Toft was notified that he needed to pay an additional $40 to have it served. Instead, Toft faxed back to Respondent two additional addresses for Digital. The fax stated, "Let me know the service cost for the one you select." Toft received no response, and so provided no additional funds. Respondent proceeded no further with the case.
Toft was never able to produce his contract with Heartland Communications. Respondent took no further action on that case, even though an employee in Respondent's office had advised Toft that the contract could be obtained from Heartland after suit was filed. The docket sheet in the Midas case did not state that the dismissal resulted from bankruptcy. The listing was apparently an error by the reporting service. No further action was taken in that case, either.
In June 2001, Toft wrote Respondent asking for a status report on his three cases. He received no response. Six months later, Toft wrote again to dismiss Respondent from all his legal matters, as his only contact with Respondent since paying him $7,000 were two telephone calls from office staff and a chance encounter at McDonald's Restaurant when Respondent did not have time to speak with him. Toft demanded the return of $6,900. In May 2002, after Toft had filed a complaint with the ARDC, he received a check from Respondent for $4,500.
Count II - Rebecca Kuhn
On March 24, 1999 Rebecca Kuhn retained Respondent to file a petition for dissolution on her behalf. She paid him a $2,500 retainer and $125 for costs. Her petition was filed that day, just a few hours after her husband filed a petition of his own. Respondent had
advised Kuhn that they would proceed in the case that was filed first, so she agreed to do so in her husband's case. Kuhn and her husband settled all of the issues between them without assistance from their attorneys, and her husband's attorney prepared the paperwork. Kuhn faxed a letter to Respondent on April 8, 1999, informing him that his services were no longer needed and requesting an accounting and a refund of the balance of her retainer.
Kuhn received no response to her letter, or to two follow-up calls to Respondent's office. In June, she went to the office and spoke to Respondent in person. He refused to refund her money, but agreed to credit it toward future work.
In the fall of 2001, Kuhn's daughter was issued several traffic tickets. Kuhn called Respondent, who arranged for an associate, David Rumley, to represent her. On January 7, 2002, after Rumley had not shown up for some of the court dates, Kuhn wrote Respondent terminating his firm's representation and asking him to return her documents and her money immediately.
Respondent prepared an itemized statement as of July 16, 2002, which showed that $500 worth of legal work had been performed. Kuhn disputed some of the charges. She eventually hired an attorney, Edward Unsell, to get her money back. On or about January 24, 2003, after Unsell had filed a complaint with the ARDC, Respondent sent Kuhn a check for $2,034. The check included the unused portion of the money paid for costs.
Count III - David Patterson
David Patterson was a construction worker who consulted Respondent after being served with petitions for dissolution and for an order of protection filed by his wife. Respondent advised Patterson to "max out" their jointly held credit cards before his wife could do so.
Patterson did as instructed, and used $3,500 obtained from his credit cards to pay Respondent's retainer.
Respondent represented Patterson at the hearing concerning the order of protection. The order was entered. Shortly afterwards, Patterson switched attorneys. Kristen Fischer's firm did legal work for Patterson's union, and he was entitled to representation at no charge under the union's legal plan.
Patterson advised Respondent that he did not wish him to proceed any further, and asked him repeatedly for a refund and itemized statement. When he got no response, he asked Fischer to pursue the matter. When Patterson still had not received a statement or a check after Fischer had had several conversations with Respondent and had written him a follow-up letter, she contacted the ARDC.
On May 15, 2002, Respondent approached Patterson and his attorney in the courthouse and told them he had good news: The check was in the mail. It was not. Respondent sent Patterson a check on November 25, 2002. According to his statement, he owed Patterson $2,740, but he was including interest of $136.98.
Count IV - Christopher Arledge
Chris Arledge retained Respondent when his former wife filed a petition to modify a child support order. He paid Respondent a $2,500 retainer, and $250 for filing fees. According to Arledge, he had difficulty reaching Respondent after that. It seemed that nothing was being done.
Eventually Arledge called Brian Silverman, an attorney who had represented him in another matter, and asked for his help. On February 25, 2002, Respondent's appearance was
vacated, Silverman was allowed to appear and an agreed order of support was entered. Arledge brought a copy of the agreed order to Respondent's office.
Arledge asked repeatedly for an itemized statement, but did not receive any response until after he had filed a complaint with the ARDC. On or about May 17, 2002, Respondent sent him a statement and a check for $1,269, which Arledge did not think was a fair amount. The statement showed that David Rumley had appeared in court for him on two occasions, although Arledge had been unaware of these appearances. The statement also showed that Respondent had appeared on one of the court dates. Respondent acknowledged that he had not appeared and that the charge for his appearance was an error, as were two charges for work performed two months after he had been discharged. Respondent had not returned the $250 Arledge had paid him for costs.
Count V - Laura Grovenor
On or about March 19, 2001, Laura Grovenor paid Respondent a $2,500 retainer to represent her in a dissolution proceeding. The petition for dissolution was filed and served. Shortly thereafter the Grovenors reconciled. In August 2001 Laura instructed Respondent to dismiss the proceedings. After being advised that the case had been terminated, she called Respondent's office a couple of times and requested an itemized bill. When she got no response, she "chalked it up to an expensive learning experience."
Eventually, Ms. Grovenor filed a complaint with the ARDC. In his response to the letter from the Commission, dated March 18, 2003, Respondent stated that he had not been aware that she wanted an itemization or a refund, and promised to send them the following day after he obtained a printout of her bill from the bookkeeper. As of the time of the hearing, Grovenor still had not received the statement nor the balance of her retainer and filing fees.
Count VI - Kevin Emberton
On May 28, 1998, Respondent entered into a written contract to represent Kevin Emberton regarding three matters involving commercial disparagement, wrongful termination and wrongful replevin. The contract provided that Emberton would pay "a sum of money equal to a fee of $15,000 to Auler Law Offices, P.C. for taking a case of this type, to be credited against the contingent fee." Emberton would also pay all costs involved.
Emberton's commercial disparagement case involved his hog business. He had contracted to purchase feeder pigs and had borrowed money from Purina Capital to do so. According to Emberton, malicious and untrue statements made by Purina employees to the intended buyer of the pigs made the buyer change his mind. The hog business went under, and Emberton had to file bankruptcy. Emberton was a vice president at Edgar County Bank, and he believed he had been wrongfully terminated by the bank because of the bankruptcy. His third cause of action was against the First National Bank of Danville, who he claimed had wrongfully executed a writ of replevin against a video store that he owned.
Emberton's bankruptcy petition was pending at the time that he hired Respondent. Originally filed as a Chapter 11 reorganization, on October 16, 1998 it was converted to a Chapter 7 liquidation. Both the cause of action against Purina and against the Bank of Danville were listed as assets of the bankruptcy. In August 1999 Respondent spoke to Emberton's bankruptcy attorney, Rodney Smith, inquiring whether there was any impediment to filing suit against the bank. Smith agreed to look into the matter and get back to him.
On November 12, 1999, although there was no evidence that he had received an answer from Smith, Respondent filed suit against the Bank of Danville. Both the bank's attorney and the attorney for the bankruptcy trustee advised him that the lawsuit was improper as the
claim was an asset of the bankruptcy. Respondent took no action and a month later, the bank filed a motion to dismiss. This was followed by a motion for sanctions. On March 31, 2002, an agreed order was entered dismissing the case with prejudice and imposing sanctions against Emberton in the amount of $7,364.40.
No further action was ever taken regarding the Purina matter. Respondent explained that the bankruptcy trustee would not release the claim.
In December 1999, Respondent filed suit against Edgar County Bank. His deposition of three bank officials apparently revealed additional reasons for Emberton's termination, and Respondent advised his client that any recovery from the lawsuit was doubtful. On September 3, 2002, Respondent voluntarily dismissed the case, without his client's knowledge.
Respondent's law clerk wrote Emberton on February 23, 2003 to inform him that the case had been "voluntarily nonsuited due to complications that arose and the summary judgment motion that had been filed by defendant." She asked that he let the office know if he wished it to be refiled, which would involve additional costs of $200. Emberton terminated Respondent's services as of February 25, 2003, and requested his case file, a refund of unearned money and an itemization of services rendered.
While Emberton's understanding was that he had paid $5,000 for each of his three causes of action, Respondent's position was that Emberton had paid a non-refundable $15,000 fee for the total work performed. Respondent felt that he had earned the money and that as Emberton was not entitled to have any of it returned, no itemization was necessary. According to Respondent's calculations, if he had been charging on an hourly basis his fees would have been $12,003.54.
Respondent's explanation for his failure to return the unused fees to Toft, as well as Emberton, was that their retainers were non-refundable. While the contracts did not specifically state that they were non-refundable, and on Emberton's intake form the provision indicating non-refundability had not been checked, Respondent felt that the phrase "for taking a case of this type" made that clear. He testified that he had discussed this with both clients, although neither remember the discussion. Respondent described Emberton's arrangement as that if they won, the $15,000 would be deducted from his one-third contingency fee. "But if we lose, it's mine for the effort and you being wrong about what you told me about the case." He eventually refunded $4,500 to Toft because of their long-standing relationship.
Respondent claimed that he did not return fees in the dissolution cases due to a combination of lack of funds and bad bookkeeping. [FN 1] Although his tax returns showed a gross income ranging from $85,548 to $147,466 during the period from 1999 to 2002, Respondent explained that he had many expenses, such as maintenance for his former wife and court-ordered college tuition for his four children. In May 2002, he settled some cases and gave his bookkeeper a list of people who were to be paid. The list included Toft, Patterson, Kuhn and Arledge. His bookkeeper was old and unwell, and when Respondent signed the checks he did not notice that Kuhn's and Arledge's were not among them. When he told David Patterson and Kristen Fischer that the check was in the mail, he believed that it was. When he stated in his initial response to the ARDC's inquiry that he would send Laura Grovenor a check the following day, he intended for that to be done.
The period from June 2001 to February 2002 was a very chaotic period in Respondent's office. Two long-term employees left, and Respondent hired fourteen different replacements during that time. Because of the confusion, he did not believe that he had seen all
the letters from his clients requesting refunds and itemizations. His office situation had stabilized since then, and he had improved his accounting arrangements.
The appropriate sanction depends on the particular facts and circumstances of this case, including evidence in mitigation and aggravation. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). Therefore, before we can determine what sanction is appropriate here, we must address Respondent's claim that the Hearing Board erred in denying his motion to supplement the record with information that he contends should have been considered in mitigation of his misconduct.
Hearing in this matter was held November 12-13, 2003. On March 31, 2004, Respondent filed a Motion for Leave to Supplement Record with evidence from a medical check-up that he had undergone following the hearing. According to the letter from Dr. Margaret Beliveau Ficalora that was attached to the motion, Respondent suffered from moderate to severe obstructive sleep apnea, and probably had had this condition for a number of years. As a result, Respondent experienced "excessive daytime somnolence, resulting in a fairly altered mental status….difficulty with concentration, completing tasks and short-term memory," all of which could have contributed to "his inability to properly function in his professional environment." Respondent's motion was denied pursuant to Commission Rule 284, which provides that post-trial motions shall not be filed with or considered by the Hearing Board. Respondent now argues that his medical problems were a significant cause of his behavior.
We review an evidentiary ruling to determine whether it was an abuse of discretion. In re Joyce, 133 Ill. 16, 29, 549 N.E.2d 232, 139 Ill. Dec. 720 (1989). An abuse of discretion occurs where no reasonable person would agree with the position adopted by the Hearing Board. In re Wilson, 98 CH 69, (Review Board, March 23, 2001), Respondent's petition
for leave to file exceptions denied, No. M.R. 17518, (September 20, 2001). Even assuming that consideration of this information was not barred by Commission Rule 284, we do not find that it was suitable mitigation. The fact that this condition could have certain effects does not mean that it did so here, and Dr. Ficarola's letter does not suggest otherwise. Even if this were not the case, Respondent does not explain how lack of concentration, difficulty completing tasks and problems with short-term memory led him to fail to return fees. According to Respondent's testimony, this resulted from a combination of a lack of funds, bad bookkeeping and his belief in some cases that his clients were not entitled to the money. Additionally, we find persuasive the Administrator's argument that had the medical evidence been admitted, she would have had no opportunity to address it. We conclude that the Hearing Board's denial of Respondent's Motion for Leave to Supplement Record was not an abuse of discretion.
The Hearing Board's recommendation as to discipline is advisory only. In re Imming, 131 Ill. 2d 239, 260, 545 N.E.2d 715, 137 Ill. Dec. 62 (1989). The Administrator argues that neither the Hearing Board's recommendation of sixty days of actual suspension nor the year's probation are appropriate in view of the circumstances of this case. We first address the latter argument.
Probation is a proper sanction where an attorney has engaged in misconduct but he needs only to have his practice monitored or limited, rather than his right to practice suspended or revoked. In re Jordan, 157 Ill.2d 266, 276, 623 N.E.2d 1372, 191 Ill. Dec. 486 (1993). This is not the situation presented here. Respondent's income during the years in question indicates that he had a successful practice. There is no evidence that his inappropriate handling of client funds was widespread. His problems with office personnel, which contributed to his misconduct, have been solved. Additionally, Respondent testified that his bookkeeping
errors, which the conditions of probation were designed to correct, have been corrected since February 2002. Probation would serve no purpose here. In re Burke, 00 SH 61 (Review Board, July 5, 2002), Respondent's petition for leave to file exceptions denied, No. M.R. 18317 (November 26, 2002).
The circumstances of this case—misconduct which affected six clients—are serious. An aggravating factor, as the Administrator points out, is that Respondent wrongfully retained clients' fees on previous occasions, but did not learn from those mistakes.
Respondent agreed to represent Beverly Simon in a dissolution of marriage action. Simon paid him a retainer of $5,000, which Respondent claimed to have explained was non-refundable. According to Simon, there was no discussion of non-refundability, or of what would happen if the divorce did not proceed.
Simon and her husband reconciled before the petition for dissolution was filed. Simon sued Respondent to get her money back, and was awarded $4,000. Respondent appealed. In affirming the circuit court, the Fourth District cited Rhoades v. Norfolk & Western Railway Co., 78 Ill.2d 217, 399 N.E.2d 969, 35 Ill. Dec. 680 (1979), which held that an attorney discharged without cause cannot recover the entire amount of fees agreed upon, but is only entitled to payment on a quantum meruit basis. Simon v. Auler, 155 Ill. App. 3d 1000, 1003, 508 N.E.2d 1102, 108 Ill. Dec. 525 (4th Dist. 1987). The Illinois Appellate Court rejected Respondent's attempt to distinguish Rhoades on the basis that it involved a contingent fee contract rather than a retainer, noting that the same public policy concerns apply in either situation:
….A client who has executed a retainer contract and paid a substantial retainer fee to an attorney must be able to recover a portion of the retainer fee upon discharging the attorney after he had performed only a small amount of work….Permitting a previously retained attorney who has been discharged to keep a large sum of money in exchange for a small amount of work raises a question of excessive fees.
Id. at 1003-04.
In July 1995, Respondent accepted an advanced fee of $5,000 for representation of James Meeks in relation to the enforcement of a previously entered judgment of $20,000 in unpaid child support. Respondent consulted with Meeks and with opposing counsel, but never entered an appearance in the case. In November 2000, Meeks fired him and asked for a refund. Respondent returned $4,400 in August 2001.
In October 1999, Respondent accepted $2,000 from Sherri Inselmann to represent her in dissolution proceedings. Less than two months later, and before her petition had been filed, Inselmann and her husband reconciled. In June 2000, after a number of requests for a refund, Respondent returned $1,500.
Respondent put off refunding money to both clients because he claimed that they had agreed that their fees were non-refundable. These two instances resulted in an ARDC proceeding in which discipline was imposed on consent. In that proceeding, Respondent acknowledged that he "now understands that non-refundable fee agreements are improper [and] agrees not to attempt to use non-refundable fee or retainer agreements in the future." He also agreed that Simon v. Auler should be considered in aggravation. Respondent was censured. In re Auler, 01 SH 17, petition to impose discipline on consent allowed, No. M.R. 17884 (January 29, 2002).
Prior discipline is properly considered when determining the appropriate sanction for subsequent misconduct. In re Guilford, 115 Ill.2d 495, 502, 505 N.E. 2d 342, 106 Ill. Dec. 36 (1987). We agree that an attorney who has been previously disciplined should be particularly sensitive to the need to conform his conduct to the requirements of the Rules of Professional Conduct. In re Storment, 203 Ill.2d 378, 401, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002). While we take note of the previous situations, we note also that Respondent claimed that his fees were non-refundable in only the Toft and Emberton cases. He was retained in those matters in between the Meeks and Inselmann cases that were the subjects of the previous discipline. He issued a refund to Toft 3˝ months after acknowledging in the previous disciplinary matter that non-refundable fee agreements were improper. According to his testimony, he did not have funds available until that time.
We have reviewed the cases cited by both parties, and find three to be particularly instructive. In In re T, 89 CH 716 (Review Board, September 1, 1994), approved and confirmed, No. M.R. 10579 (March 27, 1995), respondent engaged in a pattern of neglect involving multiple cases, and failed to return unearned fees in most of them. While acknowledging several mitigating factors, including respondent's lack of previous discipline, his good character and testimony that he was suffering from stress due to a divorce, serious injuries sustained in a car accident and severe flooding of his office, the court also noted the large number of clients affected and the prejudice to them that resulted. Respondent T was suspended for one year and until further order of court, with his reinstatement conditioned upon payment of restitution to several clients. In In re Manahan, 97 CH 62, petition to impose discipline on consent allowed, No. M.R. 14760 (May 27, 1998), respondent neglected six cases to the point that default judgments totaling more than $40,000 were entered in two of them, and he lied to one client by
telling him that his case was "going fine" when in fact, a default judgment had been entered against him due to respondent's failure to appear. Manahan was suspended for one year and until he completed a professional responsibility seminar and made restitution to five clients.
In In re Adelman, 93 CH 205 (Review Board, September 18, 1995), approved and confirmed, No. M.R. 11790 (January 23, 1996), respondent was found to have accepted retainers from five clients, but failed to perform sufficient legal work to justify them and then failed to return the fees after being discharged. One count also charged him with neglect. Although he was shown to have substantial income, like Respondent he made repeated promises to repay the money but did not do so for long periods of time.
Like Respondent, Adelman had been charged with dishonest conduct, but the Hearing Board found that the charge had not been sufficiently proved. He also had been previously disciplined by being reprimanded for neglect. In view of all the circumstances, the Hearing and Review Boards both recommended that he be suspended for six months.
Similar cases should receive similar treatment. In re McLennon 93 Ill.2d 215, 221, 443 N.E.2d 553, 66 Ill. Dec. 627 (1982). Respondent was not charged with neglect, but he was found to have committed an additional count of failing to return unearned fees. While he did not display the cavalier, callous and arrogant attitude of Adelman, Respondent left a client paying credit card interest on the unearned retainer while Respondent used the money to pay his children's tuition. We find that a period of suspension similar to that imposed in Adelman is appropriate here as well.
However, there is significant mitigation in this case. The Hearing Board provided a very detailed report, with an in-depth analysis of the facts. It determined that Respondent's misconduct did not result from any dishonest motive, evil design or fraudulent intent. Instead,
the Hearing Board found that as a consequence of inadvertence or lack of knowledge, he did not properly communicate with his clients and did not properly administer his law practice.
Respondent has practiced law for forty years, the majority of them as a sole practitioner, without any prior misconduct except for the previously mentioned censure. Five witnesses, including a former federal judge, an appellate court judge and a former circuit court associate judge testified favorably concerning Respondent's reputation for honesty and integrity.
Respondent has also taken important steps to solve the office problems that contributed to his misconduct by hiring a more stable office staff. His employees now include an "excellent" secretary and bookkeeper, and a CPA to oversee them both. He has changed the way that client retainers and costs are deposited, so that he will not be financially unable to refund client funds if that becomes necessary in the future.
In view of all the circumstances, we recommend that Respondent be suspended for a period of five months and 25 days. We have specifically chosen this period as we have determined that due to the mitigation presented and Respondent's seemingly successful efforts to correct the office management problems that contributed to his misconduct, Respondent need not be subjected to the client notification requirements of Supreme Court Rule 764(c) arising out of suspensions of six months or more.
We therefore affirm the Hearing Board's factual findings and finding of misconduct, and recommend that Respondent Robert Isham Auler be suspended from the practice of law for a period of five months and twenty-five days. We further recommend that before the end of his period of suspension, Respondent make the following restitution to his clients: $460 to Christopher Arledge, $1,146 to Laura Grovenor and $3,071.64 to Kevin Emberton.
Date: 21 March 2005
Leonard F. Amari
FN 1: Respondent did not claim that the fees paid in the dissolution matters were non-refundable. His "Written Engagement Agreements" with Kuhn and Patterson contained an addendum entitled "Statement of Clients' Rights," which stated in part that "counsel may not require a non-refundable retainer fee, but must remit back any overpayment at the end of the representation." This was followed by a note from Respondent, indicating that his compliance with this requirement "has been coerced….We would prefer to charge clients a minimum non-refundable fee, but this is no longer possible."