Filed May 24, 2007
In re Caryl Jacobs Gabe
Commission No. 04 CH 8
Synopsis of Review Board Report and Recommendation
Gabe was charged with misconduct in relation to a prior disciplinary order. After a hearing, the Hearing Board concluded that Gabe failed to explain a matter to the extent reasonably necessary to allow the client to make informed decisions regarding the representation, failed to maintain billing records, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice. The Hearing Board also found that, in matters pending at the time of her prior suspension, Gabe failed to inform clients of the discipline imposed, her inability to represent them after her suspension, that they were entitled to retain other counsel, and that their files and other documents would be available to them. The Hearing Board also found that, in matters pending when prior discipline was imposed, Gabe failed to withdraw and failed to notify the court and opposing counsel or pro se litigants of the discipline. In addition, the Hearing Board concluded that Gabe received compensation from her former law practice regarding matters in which legal proceedings had been instituted without the approval of a tribunal. As to some, but not all, counts of the complaint, the Hearing Board also found that Gabe engaged in conduct which tends to bring the courts or legal profession into disrepute, in violation of former Supreme Court Rule 771. The Hearing Board recommended that Gabe be suspended for three (3) months.
The case was before the Review Board on the Administrator's exceptions. The Administrator objected to the Hearing Board's failure to find a violation of former Rule 771 as to all counts of the complaint and to the Hearing Board's sanction recommendation. Gabe challenged the Hearing Board's findings that she engaged in misconduct by failing to comply with Supreme Court Rule 764's withdrawal requirements and certain notification requirements. Gabe also seeks to have the Review Board recommend a less severe sanction than that recommended by the Hearing Board.
The Review Board affirmed the Hearing Board's findings of misconduct, but found that Gabe did violate former Rule 771 as to all counts of the complaint. The Review Board also recommended that Gabe be suspended for six months, so that she would be required to comply with the requirements of Supreme Court Rule 764.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
CARYL JACOBS GABE,
Commission No. 04 CH 8
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This case is before the Review Board on the Administrator-Appellant's exceptions to the report and recommendation of the Hearing Board. The Administrator's charges against Respondent-Appellee, Caryl Jacobs Gabe, involved Gabe's conduct in relation to a prior disciplinary order. The Hearing Board found that, as charged in Count I, Gabe failed to explain a matter to the extent reasonably necessary to allow the client to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.4(b)) and that, in matters pending at the time of a prior suspension, Gabe failed to inform clients of the discipline imposed, of her inability to represent them after her suspension, that they were entitled to retain other counsel, and that their files and other documents would be available to them, in violation of Supreme Court Rule 764(c) (134 Ill. 2d R. 764(c)). The Hearing Board found that, as charged in Count II, in matters pending when prior discipline was imposed, Gabe failed to withdraw and to notify the court, opposing counsel, and opposing pro se litigants of the discipline imposed in violation of Supreme Court Rule 764(c), (d), and (e) (134 Ill. 2d R. 764 (c), (d), and (e)).
The Hearing Board found that, as charged in Counts I, II, and III, Gabe engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(a)(4)
(210 Ill. 2d R. 8.4(a)(4)), conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)), and conduct which tends to bring the courts or legal profession into disrepute in violation of former Supreme Court Rule 771 (since renumbered, and hereafter referred to, as Supreme Court Rule 770 (210 Ill. 2d R. 770)). The Hearing Board found that the Administrator also proved that, as charged in Count IV, Gabe improperly received compensation from her former law practice in violation of Supreme Court Rule 764(h) (134 Ill. 2d R. 764(h)) and that, as charged in Count V, Gabe failed to maintain billing records in violation of Supreme Court Rules 764(a)(4) (134 Ill. 2d R. 764(a)(4)) and 769 (210 Ill. 2d R. 769). However, the Hearing Board concluded that the Administrator had not proven, as charged in Count IV, that Gabe failed to remove indicia of her name as an attorney during her suspension, as required by Supreme Court Rule 764(b) (134 Ill. 2d R. 764(b)). The Hearing Board also concluded that the Administrator did not prove, as to Counts IV and V, that Gabe engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770. The Hearing Board recommended that Gabe be suspended for three months.
The Administrator objects to the Hearing Board's failure to find that, as to Counts IV and V, Gabe violated Rule 770. Gabe seeks to have the Review Board uphold this finding. The Administrator also objects to the Hearing Board's sanction recommendation and seeks a six-month suspension. Gabe objects to the Hearing Board's findings that she engaged in the misconduct charged in Count II. Gabe also contends that the Review Board should recommend either a less severe sanction than that recommended by the Hearing Board or to uphold the Hearing Board's recommendation of a three-month suspension.
Gabe was licensed to practice law in 1976. She concentrates her practice in family law.
In a prior disciplinary proceeding, Gabe was suspended, on consent, for two years, with the suspension stayed after the first six months by probation, for 18 months, with conditions. In re Gabe, No. M.R. 15148 (Sept. 28, 1998).
This discipline triggered the requirements of Supreme Court Rule 764. Under Supreme Court Rule 764, an attorney who is disbarred, disbarred on consent, or suspended for six months or more must comply with certain requirements, including requirements as to record-keeping, notification to clients, tribunals, and others, and receipt of compensation from the attorney's former law practice.
Attorneys George Collins and Theresa Gronkiewicz represented Gabe in her prior disciplinary case. Collins and Gronkiewicz have extensive experience in attorney disciplinary matters. They had attempted to resolve Gabe's case in a manner that would avoid a six-month suspension, so that Rule 764 would not apply. Collins testified that the requirements of Rule 764 are typically devastating to an attorney's practice, particularly for a sole practitioner such as Gabe.
Gabe understood that she could not practice law during the period of actual suspension; on Collins's advice, she went to Florida for that time, to avoid the risks of engaging in any activity that might be construed as practicing law or of false accusations of practicing law. Gabe also understood that she could not earn money in any area related to her former legal practice. After Gabe's suspension was entered, on September 28, 1998, she did nothing relating to her former legal practice.
Rule 764 requires, inter alia, that a disciplined attorney provide notice of his or her suspension to clients the attorney represented on the date the suspension became effective, courts before whom he or she was counsel of record in matters pending as of the effective date of the suspension, and opposing attorneys or pro se parties in matters in which the attorney represented a client on the effective date of discipline. Gabe discussed these notification requirements with Collins and Gronkiewicz.
As the actual suspension was relatively short, and as Gabe had a thriving practice, Collins advised Gabe of a method of handling the suspension period that was designed to assure continuous representation for her clients and take Gabe outside the notification requirements of Rule 764. Specifically, Collins advised Gabe that, before the effective date of her suspension, she could form a partnership with other attorneys, put her practice into the partnership, withdraw her appearance from all of her pending cases, and have the partnership assume representation of all of her clients. Thus, Gabe's clients would be represented at all times, and Gabe would have a practice to return to after her suspension was complete. Further, Gabe would not have any clients and would not be counsel of record in any cases on the date her suspension became effective. Therefore, while other requirements of Rule 764 would apply, the requirement that she notify clients, opposing counsel or pro se parties, and courts before whom she had pending matters would not apply. Gabe decided to form such a partnership.
In anticipation of the change in her practice, Gabe sent letters to her clients on or about August 27, 1998. While they discussed the fact that Gabe would be sending an announcement about the partnership, Collins and Gronkiewicz did not see the letter before it was sent, advise Gabe about its wording, or provide her with a draft.
The letter Gabe sent to her clients stated, inter alia:
"…effective September 1, 1998, I have formed a partnership with two (2) extremely competent lawyers….STEVEN POPUCH and PAUL CHAWLA. Both attorneys are experts in the field of matrimonial law.
In addition, the expertise of said lawyers extends to the following additional fields of law…
Therefore, as a result of the formation of this new entity, to be known as POPUCH & CHAWLA, I can now bring to you a full-service law firm, as well as boutique specialists…
As an existing client, you will continue to be billed by Caryl Jacobs Gabe and Associates, and any future services rendered on your behalf by POPUCH & CHAWLA will be billed under the GABE & ASSOCIATES name.1
In the event I am ever unavailable, you can discuss your case with either of my partners, who will be more than happy to assist you…
Steve, Paul, and I are very excited about our ‘union' and we are looking forward to representing your interests now and in the future."
Gabe sent this letter to all the clients she had as of August 27, 1998. Except for three clients whom Gabe told of her suspension, this form letter was the only information Gabe provided to her clients about her future. Gabe did not advise her clients that she would not be a partner until after her suspension or that she could not have any association with the firm until after her suspension. Gabe did not inform her clients that she could not perform any legal services during her suspension. Gabe did not advise her clients that they did not have to be represented by the firm. While Gabe thought her clients would know that, the parties stipulated that two clients remained with the firm because they had already paid Gabe a substantial retainer and did not think they had a choice.
On August 28, 1998, Gabe sent one client, Nancy Driscoll, an additional letter. In this letter, Gabe advised Driscoll that she would "be in Florida for the winter as a necessary R &
R for her health" and that, in her absence, Gabe's partners would take care of Driscoll. When Gabe resumed practice, she assumed full responsibility for Driscoll's case, at Driscoll's request. Driscoll was not advised of Gabe's suspension until after it began. A few other clients also learned of Gabe's suspension after it began.
On or about August 31, 1998, Gabe, Popuch, and Chawla signed a partnership agreement. While Collins had prepared a draft partnership agreement, to effectuate his advice to Gabe, it was not the agreement signed. The agreement that was signed incorporated some of Collins's language, but not other portions. Collins was not involved in preparing the modified agreement.
Both agreements contemplated that Gabe would work for the firm as an associate on a per diem basis until her suspension. The signed agreement, unlike the agreement Collins prepared, referred to Gabe's suspension as a "leave of absence." The Collins draft also provided that Gabe would not be a partner in the new firm until after her suspension ended and that the partnership would "commence business on the first day when it becomes lawful for Gabe to renew her practice of law, after her period of suspension." The signed agreement contained ambiguous terms, providing that the parties intended to form a partnership for the practice of law, to commence business on August 24, 1998 and that the partnership would commence business on the first day Gabe returned from her "leave of absence."
While they did not specifically advise Gabe on the mechanics of how to withdraw, the advice of Collins and Gronkiewicz contemplated that Gabe's clients would be asked to consent to the substitution of the partnership as their attorney. The agreement that Collins prepared similarly contemplated that Gabe would withdraw from representation, with the consent of each client involved, and that the withdrawal would be effectuated with the entry of a
court order. The signed agreement provided that Gabe, Popuch, and Chawla, with the consent of their clients, would substitute the firm for representation of each of their clients. The signed agreement also provided that, as to those clients who consented, "the substitution shall be accomplished by a substitution and/or have a firm change notice by which the client will consent to the substitution."
After the partnership agreement was signed, Gabe worked on her clients' cases for the firm. Pleadings filed in some of Gabe's cases prior to her suspension were signed by Gabe as an attorney with Popuch & Chawla. Other pleadings were signed by Gabe, with the client's attorneys identified as Gabe and Popuch & Chawla.
On the date her suspension became effective, i.e. September 28, 1998, there were 23 cases pending in which Gabe had previously entered an appearance and was counsel of record. Most of those cases were active, and Gabe had been providing services to her clients up until the time of her suspension.
In most of her cases, Gabe filed substitution forms, in September 1998. In a few cases, a court order was entered, before Gabe's suspension, allowing Gabe to withdraw and the firm of Popuch & Chawla to appear instead. In most cases, this did not occur. In one case, the court file did not contain any substitution form, although Popuch & Chawla appeared on the client's behalf. In two other cases, Gabe did nothing prior to her suspension and the firm filed a substitute appearance during Gabe's suspension. In most cases, a substitution of appearance was filed, substituting the firm as counsel. However, Gabe herself signed many of the substitutions on behalf of the firm. Typically, the substitution forms did not bear the client's signature. Neither Collins nor Gronkiewicz drafted or saw any of the substitutions Gabe prepared before they were filed.
Rule 764 also addresses a disciplined attorney's receipt of fees. Under Rule 764(h), a disciplined attorney may receive compensation on a quantum meruit basis for legal services performed before the effective date of discipline. Rule 764(h)(1) provides that the disciplined attorney shall not receive any compensation regarding a matter in which a legal proceeding was instituted at any time prior to the imposition of discipline without first receiving approval of the tribunal.
Gabe discussed her accounts receivable with Collins and Gronkiewicz. As of the date of her suspension, Gabe had accounts receivable totaling over $350,000, for work performed prior to her suspension. These were all hourly fees, with no contingent fees.
Collins and Gronkiewicz believed that Rule 764(h)(1)'s requirements for obtaining court approval related only to contingent fees and not to hourly fees. This was based on the view that, with an hourly fee, the amount due to the attorney would be clear, but a contingent fee might require a court to determine the amount due to the attorney, on a quantum meruit basis, at the time of suspension.
Given their understanding of the Rule, Collins and Gronkiewicz did not advise Gabe that she had to obtain court approval to collect fees earned before her suspension. Instead, they told Gabe that she could collect such fees during her suspension. Based on the advice of her attorneys, Gabe believed that she did not need court approval to collect those fees and did not seek, or obtain, such approval.
Before her suspension, Gabe directed her bookkeeper, Lucia Irwin, to send bills to clients who had accounts receivable for work performed prior to the suspension. Irwin did not work in Gabe's office, and she was not Gabe's employee, but an independent contractor.2
During her suspension, Gabe received a total of $26,329.04, for services performed prior to her suspension. This consisted of numerous payments, from multiple clients. Most individual payments were for less than $500.
The Administrator sent a subpoena duces tecum on March 30, 2001, directing that Gabe produce records relating to billing and accounts receivable during her suspension, including all bills sent during her suspension. Gabe produced some items in response to the subpoena. However, she did not produce all records requested as she did not have or could not locate them. Gabe testified that Irwin had the only copies of those bills, but had lost them apparently due to a computer malfunction. Gabe also moved her office twice after resuming the practice of law; during those moves, some things were lost.
Gabe testified that she did not intend to mislead anyone in her communications with clients and believed that her actions were consistent with what was required of her. Gabe testified that, in hindsight, she would have contacted each client and advised them that she would not be practicing law for six months, that Popuch and Chawla would handle their cases and that, if they objected, they could retain other counsel. Gabe testified that her intent was to try to make a smooth transition so that her clients would be protected.
Gronkiewicz drafted an affidavit of compliance with Rule 764. After Gabe signed the affidavit, it was filed with the Supreme Court. The affidavit stated, inter alia, that Gabe had merged her practice with the firm of Popuch & Chawla and that she had withdrawn her appearance in every existing court proceeding, with Popuch & Chawla filing its appearance in every such case. The affidavit stated that Gabe did not, therefore, have any clients or court matters on the date discipline was imposed. The affidavit stated that Gabe intended to resume practicing law after her suspension, with the firm. Gabe testified that she believed, when she
filed the affidavit, that she had withdrawn from all of her cases and that she was not counsel of record in any pending cases.
Gabe was suspended from September 28, 1998 through March 28, 1999. After her suspension ended, Gabe joined Popuch and Chawla. She remained with the firm for about three and a half months and then opened her own office. All but two of her former clients whose cases were still active followed Gabe.
Gabe presented mitigating evidence, including evidence of significant pro bono work, bar association involvement, and community service, as well as supporting charitable causes. Judge Clare Elizabeth McWilliams Parker and attorney Thomas William Hunter provided favorable character testimony.
The Administrator objects to the Hearing Board's finding that Gabe did not violate Rule 770 in relation to the conduct charged in Counts IV and V. Count IV related to Gabe's conduct in billing for work performed before her suspension without seeking court approval. Count V related to Gabe's failure to maintain, and be able to produce, billing records. Gabe contends that the Hearing Board erred in finding misconduct as to Count II, which involves the substitutions Gabe filed in pending cases.
Factual findings of the Hearing Board generally are not reversed unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). A factual finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill. 2d at 542, 848 N.E.2d 961, 302 Ill. Dec. 397.
The reviewing tribunal, however, is responsible for correcting errors in the application of the facts to the law, Winthrop, 219 Ill. 2d at 543, 848 N.E.2d 961, 302 Ill. Dec.
397, and for determining whether or not a particular set of facts constitutes the misconduct charged. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994); In re Owens, 144 Ill. 2d 372, 377, 581 N.E.2d 633, 163 Ill. Dec. 479 (1991). Such issues are issues of law, In re Ushijima, 119 Ill. 2d 51, 57, 518 N.E.2d 79, 115 Ill. Dec. 548 (1987), to which a de novo standard of review applies. In re Brodsky, No. 01 CH 42 (Review Board Aug. 21, 2003), approved and confirmed, No. M.R. 19007 (Jan. 20, 2004); see Discipio, 163 Ill. 2d at 527, 645 N.E.2d 906, 206 Ill. Dec. 654; Owens, 144 Ill. 2d at 377, 581 N.E.2d 633, 163 Ill. Dec. 479.
Supreme Court Rule 770 prohibits conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The primary focus is on the respondent's conduct, rather than on its impact. See In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997).
A failure to comply with the requirements of Rule 764 can constitute conduct that tends to bring the legal profession into disrepute. See In re Moll, No. 01 CH 46 (Review Board March 22, 2006), petition for leave to file exceptions allowed, discipline modified, No. M.R. 20918 (Sept. 20, 2006). This case does not require us to decide whether every violation of Rule 764 necessarily requires a finding of a violation of Rule 770. However, matters involving billing and fees are areas in which public confidence in the legal profession, and its ability to police itself, is particularly important. Further, as the Hearing Board did not specify why Gabe's proven misconduct as to Counts IV and V did not also violate Rule 770, this case does not involve factual findings, by the trier of fact, supporting the conclusion that Rule 770 was not violated.
As to Count IV, the Hearing Board found that Gabe engaged in misconduct by collecting fees during her suspension without obtaining court approval in violation of Rule
764(h)(1). Gabe has not challenged this finding, so there is no issue before us as to whether that Rule applies only to contingent fee cases. An attorney's improper collection of fees during a period of suspension is conduct that tends to bring the legal profession into disrepute. Therefore, Gabe's misconduct as to Count IV also violated Rule 770.
As to Count V, the Hearing Board found that Gabe engaged in misconduct by failing to maintain the required financial records relating to her law practice. While this was due in part to unintentional loss of records by Irwin, the Hearing Board concluded that Gabe could not legitimately delegate her responsibility to maintain records to an outside bookkeeper. Further, some items were lost during Gabe's own office moves. In our judgment, the failure of a disciplined attorney subject to Rule 764 to comply with the duty to maintain and produce financial records is conduct that tends to bring the legal profession into disrepute. Therefore, Gabe's proven misconduct as to Count V also violated Rule 770. However, this ruling does not affect our sanction recommendation, which is discussed later.
As to Count II, the Hearing Board found misconduct based on its conclusion that Gabe failed to properly withdraw from all of her pending cases and substitute the appearance of Popuch & Chawla before the effective date of her suspension. The Hearing Board reasoned that, to be proper, each substitution should have been a three-party transaction between the client, Gabe, and the firm, with each substitution containing Gabe's withdrawal, the firm's substitution, and the client's consent. We agree.
The procedure Gabe employed did not document her clients' knowledge of or consent to the substitution. In some cases, no substitution was filed. In many cases in which substitutions were filed, Gabe signed for Popuch & Chawla. As the Hearing Board noted, this did not constitute a withdrawal by Gabe, or suggest that Gabe was no longer counsel of record;
instead these forms constituted merely an additional appearance by Popuch & Chawla.3 We therefore affirm the Hearing Board's finding that Gabe engaged in the misconduct charged in Count II.
The remaining issues concern the sanction. The Hearing Board's recommendation as to discipline is advisory. In re Ingersoll, 186 Ill. 2d 163, 178, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999). In fashioning the proper sanction, the Review Board must consider each case, based on its own particular facts and circumstances, while remaining aware that the system seeks to impose sanctions consistent with those imposed in other similar cases. Ingersoll, 186 Ill. 2d at 177-78, 710 N.E.2d 390, 237 Ill. Dec. 760; In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). Aggravating and mitigating factors are to be considered. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991). The Hearing Board addressed many of those factors in its report and recommendation. The fact that a respondent has been disciplined previously is typically a serious aggravating factor. E.g., Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961, 302 Ill. Dec. 397; In re Storment, 203 Ill. 2d 378, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002). The significance of prior discipline as an aggravating factor per se is diminished here because this case does not involve a recidivist in the typical sense. See In re Moll, No. 01 CH 46 (Review Board March 22, 2006), petition for leave to file exceptions allowed, discipline modified, No. M.R. 20918 (Sept. 20, 2006).
The purposes of discipline must also be considered. The purpose of discipline is not to punish the individual respondent, but to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999); Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300, 191 Ill.
Dec. 55. The deterrent value of a sanction may also be considered. Discipio, 163 Ill. 2d at 528, 645 N.E.2d 906, 206 Ill. Dec. 654.
Gabe contends that the Hearing Board did not give sufficient weight, in mitigation, to her reliance on the advice of counsel. Reliance on the advice of counsel can be a mitigating factor, particularly if the conduct involves unsettled issues of first impression as to which the Rules do not provide clear guidance. Moll, No. 01 CH 46 (Review Board), opinion pp. 18-19. This case does involve some such issues, and Collins and Gronkiewicz are experienced, highly respected attorneys in the field of attorney discipline. See Moll, No. 01 CH 46 (Review Board), opinion p. 19.
However, while Gabe acted on the advice of counsel as to some things, i.e. collecting fees without obtaining court approval, her misconduct was not limited to that alone. The Hearing Board found that Gabe did not rely on the advice of her attorneys as to other aspects of her conduct. This finding is supported by the record. The Hearing Board concluded that the partnership agreement that Gabe signed was substantially different than the agreement Collins prepared. Similarly, Gabe was not acting in reliance on the advice of counsel in the manner in which she attempted to substitute the appearance of the firm for her own. The sanction recommendation is based upon all of Gabe's misconduct, not only the conduct as to which she sought, and followed, counsel's advice. The Hearing Board struck a proper balance between these competing considerations in determining the extent to which reliance on the advice of counsel was a mitigating factor in this case.
In determining the sanction to recommend, we have considered the aggravating and mitigating factors, the arguments and cases cited by the parties, and the cases cited by the Hearing Board in support of its recommendation of a three-month suspension. However, there is
a single overriding factor present here which persuades us to recommend a six-month suspension.
The Administrator seeks a six-month suspension, primarily because such a sanction would force Gabe to do that which, by her misconduct, she previously sought to avoid. Specifically, a suspension for six months would force Gabe to comply with the requirements of Rule 764, while any lesser sanction would allow Gabe to avoid these requirements.
The requirements of Rule 764 are designed to preserve public confidence in the legal system and in the system's ability to effectively discipline errant attorneys. Discipio, 163 Ill. 2d at 526, 645 N.E. 2d 906, 206 Ill. Dec. 654. Consequently, compliance with this Rule is very important, both for the integrity of the profession and the protection of the public.
Gabe did some of what Rule 764 required her to do. Compare In re Arnold, No. 99 CH 49 (Hearing Board Sept. 6, 2000), approved and confirmed, Nos. M.R. 17140, 17403 (March 22, 2001). However, this case does not involve simply an unintentional mistake or a misunderstanding of Rule 764's requirements. Compare e.g., In re Scroggins, No. 94 SH 638 (Review Board May 13, 1996), approved and confirmed, No. M.R. 10561 (Sept. 24, 1996); see also In re Moll, No. 01 CH 46 (Review Board March 22, 2006), petition for leave to file exceptions allowed, discipline modified, No. M.R. 20918 (Sept. 20, 2006). While there are elements of unintentional error, e.g., the lost billing records, and possible mistaken interpretation of the Rule, e.g., Gabe's collection of her hourly fees, Gabe's misconduct extended beyond these matters.
Essentially, Gabe sought to conceal her suspension. In some cases, e.g., as to Driscoll, she made affirmative misrepresentations. Gabe never informed most of her clients of her suspension. The letter Gabe sent her clients informing them of her association with Popuch
and Chawla created the seriously misleading impression that Gabe would be actively, and continuously, involved in the new firm from the outset. Some of Gabe's clients did not feel they had any choice in whether to remain with the new firm, contrary to Gabe's obligation to inform them of this choice.
Similarly, even in those cases in which Gabe filed substitutions, the process typically occurred in a manner that did not demonstrate the clients' knowledge of or consent to the substitution and that tended to obscure the fact that Gabe herself would not continue on as counsel. In this process, Gabe was not following the procedure suggested by Collins and Gronkiewicz as a possible way to take herself outside the notification requirements of Rule 764. Thus, she was not following a course of conduct as to which there might have been good faith differences of opinion as to the propriety of her behavior. Compare Moll, No. 01 CH 46.
An attorney, such as Gabe, disciplined with a six-month suspension or greater, must comply with the requirements of Supreme Court Rule 764. Certainly not every violation of Rule 764 merits a suspension of six months or more. E.g., In re Moll, No. M.R. 20918 (Sept. 20, 2006). However, Gabe's conduct, particularly taken as a whole, demonstrates a comprehensive effort to avoid compliance with Rule 764 and, as much as possible, to conceal the fact of her suspension. In such a case, the discipline to be imposed must be sufficiently serious to emphasize the need to avoid similar misconduct in the future, see In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999), and, as noted, must compel Gabe to do that which she earlier sought to avoid.
For these reasons, we affirm the Hearing Board's findings as to the misconduct charged, except that we reverse its findings that, as to Counts IV and V, Gabe did not violate
Rule 770. Instead we conclude that she did violate Rule 770 as to those Counts. We recommend that Respondent-Appellee, Caryl Jacobs Gabe, be suspended for six months.
Date Entered: May 24, 2007
Stuart R. Lefstein
1Caryl Jacobs Gabe and Associates was the name of Gabe's former practice.
2 Evidence was presented concerning the manner in which bills were sent and that the bills directed that payment be made to Caryl Jacobs Gabe and Associates. That evidence related to the charge that Gabe failed to remove all indicia of herself as an attorney. The Hearing Board found that the Administrator did not prove that charge. The Administrator has not challenged that finding.
3As Gabe did not properly withdraw from all of her cases and substitute in the new firm as counsel, we need not, and do not, address whether the arrangement proposed by Collins and Gronkiewicz would be legitimate.