Filed September 28, 2007

In re A. Leo Wiggins, Jr.
Respondent-Appellant

Commission No. 04 CH 33

Synopsis of Review Board Report and Recommendation
(September 2007)

Wiggins was charged, in a three-count complaint, with misconduct arising out of his business relationship with John Block, a disbarred attorney (Count I), and misconduct in relation to two client matters (Counts II and III). Wiggins denied misconduct and some of the facts alleged in the complaint.

As to Count I, the Hearing Board found that Wiggins engaged in conduct that is prejudicial to the administration of justice and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute by allowing a disbarred attorney to maintain a presence in his law office and perform the duties of a paralegal or law clerk. The Hearing Board found that the Administrator did not prove the other misconduct charged in Count I. As to Count II, the Hearing Board found that Wiggins failed to abide by a client's decision whether to accept an offer of settlement, failed to promptly pay or deliver funds to a client, and engaged in conduct that is prejudicial to the administration of justice and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. As to Count III, the Hearing Board found that Wiggins engaged in conduct involving fraud, dishonesty, deceit, or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Hearing Board recommended that Wiggins be suspended for one year.

The case was before the Review Board on the Wiggins's exceptions. He challenged some of the Hearing Board's findings of misconduct and its sanction recommendation. Wiggins also raised issues as to the sufficiency of the allegations of the complaint and the conduct of the proceedings before the Hearing Board. The Administrator objected to the Hearing Board's failure to find, as to Count I, that Wiggins aided another in conduct he knew would violate the Rules of Professional Conduct. The Administrator acknowledged that, as to Count II, the Hearing Board's finding that Wiggins failed to abide by a client's decision whether to accept an offer of settlement, should be vacated as the conduct on which it was based differed from the conduct charged in the complaint as the basis for that Rule violation. In other respects, the Administrator sought to have the Review Board uphold the Hearing Board's findings of misconduct, as well as its sanction recommendation.

The Review Board affirmed the Hearing Board's findings as to the misconduct charged, except its finding that, as to Count II, Wiggins failed to abide by a client's decision whether to accept an offer of settlement. The Review Board also agreed with the Hearing Board's recommendation as to discipline.

BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

A. LEO WIGGINS, JR.,

Respondent-Appellant,

No. 31228584.

Commission No. 04 CH 33

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

The Administrator-Appellee filed a three-count complaint against Respondent-Appellant, A. Leo Wiggins, Jr. Wiggins denied misconduct and some of the facts alleged in the complaint. After a hearing, the Hearing Board found that the Administrator proved that Wiggins engaged in some, but not all, of the misconduct charged. The Hearing Board recommended that Wiggins be suspended for one year.

The case is before the Review Board on Wiggins's exceptions. He raises issues as to the sufficiency of the allegations of the complaint, the sufficiency of the evidence, the impartiality of the hearing panel, prosecutorial misconduct, and the sanction recommended. The Administrator contends that there was no impropriety in the procedures before the Hearing Board. He seeks to have the Review Board affirm the Hearing Board's findings of misconduct, with one exception, and its sanction recommendation. The Administrator contends, however, that the Hearing Board erred in failing to find that Wiggins violated Rule 8.4(a)(2) as charged in Count I.

COUNT I

Count I related to Wiggins's business relationship with John Block, an attorney who had been disbarred on consent. Count I of the complaint charged that Wiggins gave

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assistance to another's conduct, when he knew that conduct would violate the Rules of Professional Conduct in violation of Rule 8.4(a)(2) (210 Ill. 2d R. 8.4(a)(2)), assisted a disciplined attorney in conduct which violated Supreme Court Rule 764(b) (134 Ill. 2d R. 764(b)), and engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)), conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)), and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770)). The Hearing Board found, as to this Count, that Wiggins violated Rule 8.4(a)(5) and Supreme Court Rule 770, but that the Administrator did not prove the remaining misconduct charged.

John Parker Block was licensed to practice law in 1972. He concentrated in plaintiff's personal injury work, handling numerous cases.

Block, who had become addicted to cocaine, was arrested in Mexico on drug-related charges in November 1985. He was incarcerated in Mexico from November 1985 until early 1988. Block stopped using drugs and alcohol and successfully completed parole in late 1989. After returning to Chicago, Block began operating a travel business.

On June 2, 1986, the Supreme Court entered an order striking Block's name from the master roll of attorneys licensed to practice in Illinois. According to documents in evidence, a motion to strike was filed in April 1986. At the time, disciplinary charges relating to neglect and conversion were pending against Block. Block did not obtain reinstatement of his license at any time relevant to these proceedings.

Wiggins met Block through a mutual friend in 1993. Block and Wiggins became and remained very close social friends.

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At the time, Wiggins's practice was not doing well. After discussions with Block, Wiggins decided to concentrate in personal injury cases. Initially, Wiggins and Block agreed that Block would go to Wiggins's office occasionally on a Saturday, to go over files with Wiggins and be sure that they were being "worked properly." They later discussed a marketing strategy, with which Block assisted Wiggins. Block was not compensated for this activity.

As Wiggins began getting more personal injury business, he asked Block for more assistance. Wiggins knew that Block's name had been stricken from the master roll of attorneys and that, consequently, there might be restrictions as to the type of work Block could do. However, Wiggins did not consider Block a "disbarred attorney," as Block had surrendered his license rather than going through a full disciplinary proceeding. Wiggins did not check Block's status with the ARDC.

Wiggins and Block each researched the extent to which they could legitimately work together. After Block reached an opinion, he provided Wiggins with his research. Wiggins testified that he looked at, inter alia, the Supreme Court Rules, case law, and the Code of Professional Responsibility. As he did not consider Block a disbarred attorney, Wiggins was not sure if he looked at Supreme Court Rule 764.

Based on this research, Wiggins did not believe that there was a blanket prohibition against a person in Block's position being employed by an attorney. Wiggins, however, understood that any such arrangement would be subject to significant restrictions. Wiggins understood that Block could not have substantive contact with clients or maintain or occupy a law office. He understood that Block could not hold himself out as an attorney, practice law, or "engage with" other persons who were attorneys. Consequently, there were specific office procedures concerning Block. Specifically, Block was never to be considered or

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addressed as an attorney. He never spoke with clients or other lawyers. If anyone accidentally mistook Block as an attorney, Block corrected them. Wiggins's office staff was instructed to do the same. Wiggins also recognized that Block could not perform the duties of or identify himself as a paralegal or law clerk.

Wiggins believed, however, that Block could do various things and that, within those parameters, he and Block could operate legitimately. Wiggins believed that Block could draft pleadings, which an attorney would read prior to filing. He also thought that Block could have contact with insurance adjusters, as the insurers had their own attorneys and the adjusters would not rely on Block's statements to their detriment. Wiggins also believed that Block could discuss cases with Wiggins and give Wiggins his opinion.

Wiggins and Block entered into an independent contractor arrangement, which began in 1993 and continued until 2003, after the ARDC began its investigation into the matter. Wiggins then ended the arrangement on the advice of his attorney.

Wiggins paid Block hourly, at a rate of $40, plus expenses. Block testified that he received approximately $65,000 to $70,000 per year for the last couple of years of their arrangement.1 Documents in evidence indicate that, during some years, Block received a greater amount, as well as a smaller amount during the earlier years. Block worked essentially full-time for Wiggins for most of the period at issue, although he also did other work during this time.

Under their arrangement, Block handled Wiggins's pre-litigation files, did some administrative work, including maintaining the library, assisted Wiggins in setting up office procedures, and advised Wiggins in connection with litigation files, including advice on litigation strategy. Block directed Wiggins's support staff to gather medical documentation for

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cases. Block decided what medical records to obtain, determined when the medical documentation was complete, and reviewed and analyzed the medical documentation.

In addition, Block called insurance adjusters and provided them with information, including information relating to special damages. Block and Wiggins also conferred about the value of cases. Block would give Wiggins his opinion about the value of cases, based on an analysis of the medical records and liability issues. After Wiggins set the range for negotiation, Block negotiated settlements with insurance companies. Wiggins, not Block, advised clients about the offers. The client and Wiggins decided whether or not to accept an offer.

In 2000-01, Wiggins had approximately 300-350 open non-litigation files at a time. Gathering medical specials, negotiating cases, and work on non-litigation files comprised about 70% of Block's time for Wiggins. Another 10% of Block's time for Wiggins was spent on activities such as drafting form letters, setting office procedures, maintaining the library, and doing errands. The remaining 20% of Block's time was spent assisting Wiggins on litigation files. This included drafting pleadings, doing legal research, proofreading and editing pleadings, drafting appellate briefs, and preparing for arbitration or trial. Block also reviewed potential personal injury cases referred to Wiggins, summarized the damages and any problems with the cases, and offered recommendations about the cases.

Block maintained an office in the same building and on the same floor as Wiggins's office. Block's office was not in the same suite as Wiggins's. Block did not have a door into Wiggins's office; he entered through the hallway. When Wiggins moved his office, Block also moved. Block was in a separate office, with a separate hallway entrance, but adjacent to Wiggins's office. Block's name was not on the door of Wiggins's office or on Wiggins's stationery, and Block never signed correspondence on Wiggins's letterhead. Block was not

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listed in the phone book in connection with Wiggins's office. Block, however, routinely went to Wiggins's office to work on files, talk with Wiggins, and give work to Wiggins's support staff.

The Hearing Board found that the arrangement between Wiggins and Block violated Rule 764(b) because Block maintained a presence in Wiggins's law office. The Hearing Board concluded that Block performed the duties of a paralegal or law clerk and that his arrangement with Wiggins allowed Block the opportunity to engage in the unauthorized practice of law. Consequently, the Hearing Board concluded that this arrangement was prejudicial to the administration of justice and violated Supreme Court Rule 770. Additionally, the Hearing Board reasoned that Block's presence in Wiggins's office created the possibility that the public's regard for the effectiveness of the disciplinary process would be lessened.

The Hearing Board concluded that the Administrator did not prove violations of Rule 8.4(a)(2) or 764(b). It found that Rule 764(b) was not a rule of professional conduct on which a charge under Rule 8.4(a)(2) could be based. The Hearing Board also concluded that Wiggins did not violate Rule 764 himself, as he was not affiliated with the disciplined attorney as a partner or associate.2

COUNT II

Count II related to Wiggins's representation of Karen Shyne. As to Count II, the Hearing Board found that Wiggins failed to abide by a client's decision whether to accept an offer of settlement in violation of Rule 1.2(a) (134 Ill. 2d R. 1.2(a)), failed to promptly pay or deliver funds in violation of Rule 1.15(b) (188 Ill. 2d R. 1.15(b)), and engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)) and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770)).3

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Wiggins represented Shyne in a personal injury matter arising out of an automobile accident. In June 2000, Shyne signed a contingent fee agreement with Wiggins. The contract gave Wiggins a limited power of attorney to sign, execute, endorse, and negotiate any documents, including releases and drafts, necessary to prosecute and terminate her claim. Under the contract, funds received were to be disbursed to Shyne upon settlement and no settlement was to be made without her consent.

Wiggins settled Shyne's claim against the other driver for the policy limits of $25,000. A release was signed in January 2001. Apparently Wiggins or someone acting at his direction signed the release, pursuant to the power of attorney. Wiggins was not charged with improperly signing Shyne's name to the release. On or about January 8, 2001, the insurer sent $18,410 to Wiggins, constituting the settlement amount less advance payments previously made on Shyne's behalf. Wiggins prepared a closing statement that showed $8,935.64 due to Shyne after deducting expenses, liens, and attorney fees.

In February 2001, Shyne went to Wiggins's office to pick up a check. Shyne testified that Wiggins did not fully explain the check's purpose. A friend who accompanied Shyne inquired whether Shyne could still file a UIM claim if she accepted that check. During this conversation, Block entered the room and explained that Shyne could do so.

Conflicting evidence was presented as to whether Shyne signed the settlement statement and whether Wiggins obtained her permission, in advance, to settle the claim against the other driver.

Wiggins then brought an under-insured motorist (UIM) claim against Shyne's insurer, State Farm Insurance. Shyne opted to proceed on that claim through alternative dispute

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resolution (ADR). The ADR agreement provided that any settlement under the UIM claim would be set off by the $25,000 that Shyne had received in settlement of the underlying claim.

On May 9, 2001, State Farm sent Wiggins $5,000, as an advance draft without prejudice on the UIM claim. Wiggins deposited that payment in his client trust account. From this amount, Wiggins issued a check to himself for fees of $1,100 on May 25, 2001. On June 12, 2001, he issued a check for $555.55 to the referring attorney. Shyne's portion of this check remained in Wiggins's client trust account.

After the ADR hearing, an award was made for $20,985. Because the arbitrator awarded less than $25,000, Shyne received nothing additional from the arbitration. She was, however, entitled to receive her share of the $5,000 advance Wiggins received in May 2001.

Wiggins did not pay Shyne her portion of the $5,000 until the day of the hearing. Wiggins testified that this happened inadvertently and that he thought he had paid her previously.

Shyne testified that Wiggins did not send her a copy of the arbitration decision, but merely told her that the judge had decided she would not get anything more. Shyne testified that Wiggins did not explain what had happened. When Shyne asked Wiggins what happened to the $5,000, he did not give her an explanation and became belligerent when she inquired further. Shyne did not hear further from Wiggins. He did not give Shyne her file upon request, apparently due to an unpaid expense. Therefore, Shyne sent Wiggins a letter terminating his services.

Shyne complained to police, as she felt Wiggins was keeping her $5,000 improperly. Police refused to pursue the matter. Shyne then complained to the ARDC. Initially, the ARDC declined to pursue the claim and so notified Wiggins. Therefore, Wiggins assumed

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that there was no problem and that he had paid Shyne. The Hearing Board believed that the delay in paying Shyne was not due to any dishonest motive, but was simply an error by Wiggins.

At the hearing, Wiggins tendered checks to Shyne for the balance due to her from the $5,000, less the attorney fees that had been paid out in 2001, plus $1,429.02, representing interest on the $5,000 from the time of settlement.

COUNT III

Count III concerned Wiggins's representation of Dorothy Townsend, her minor daughter, and Veronica Townsend ("the Townsends"). As to Count III, the Hearing Board found that Wiggins engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) (210 Ill. 2d R. 8.4(a)(4)), conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)), and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770)).

In May 1999, Wiggins was hired to represent the Townsends in a personal injury claim against the CTA. Wiggins used his standard contingent fee agreement, which gave Wiggins a limited power of attorney, permitting him to sign, execute, endorse, and negotiate any documents, including releases and drafts necessary to prosecute and terminate the claim. Under the contract, funds received were to be disbursed to the clients upon settlement and no settlement would be made without their consent.

Wiggins filed suit against the CTA. The case was settled in May 2002. After receiving the releases described below, the CTA sent Wiggins a settlement check, which he deposited in his trust account. The Townsends later received their portion of the settlement.

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At the time of settlement, the CTA's attorney, Alan Goldberg, tendered form releases to Wiggins. Wiggins returned those documents, signed and witnessed, to Goldberg with a cover letter describing the documents as "properly executed releases."

Neither Dorothy nor Veronica Townsend signed the releases. Instead, Wiggins signed them or had someone else do so, pursuant to the power of attorney in his contract. Wiggins also had the signatures witnessed. The releases did not reveal, and Wiggins did not tell Goldberg, that someone other than the Townsends had signed the releases. Goldberg testified that, if he had known this, he would have consulted with a supervisor before proceeding.

Goldberg had had other cases with Wiggins. He testified that there was never any alleged impropriety in relation to those matters.

The Hearing Board found misconduct as to Count III because Wiggins acted in a manner designed to deceive the CTA, because the clients' signatures were executed on the releases without disclosing that someone else had signed them and as the purported signatures were witnessed.4

BACKGROUND AND CHARACTER EVIDENCE

Wiggins was licensed to practice law in Illinois in 1980. Wiggins worked as a staff attorney for the presiding judge of the Cook County Juvenile Court for five years. He then started a general practice with a partner. From 1994 onward, Wiggins concentrated his practice in personal injury.

Wiggins donated money and pro bono legal services to an organization that served HIV positive young mothers. He financially supported various charitable causes.

Wiggins was actively involved in the Cook County Bar Association (CCBA) Law Office Management committee. This committee assisted practicing attorneys in conducting their

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practices properly, i.e., so as not to violate ARDC regulations. It also served disciplined attorneys who were required to enroll in a law office management program. Wiggins chaired the committee for about five years. As committee chair, Wiggins conducted meetings, lectured, and sponsored seminars on practice management and ethics. He also assisted specific disciplined attorneys, meeting with them and with ARDC staff to ensure that the conditions of their discipline were being met.

Attorney James Paul Costello testified that Wiggins was known as a "stand-up lawyer" with a "very solid" reputation. While Costello had not read the complaint, he knew generally of the charges in Count I and testified that, if proven, they would not change his opinion of Wiggins.

Attorney Donald Hubert contacted Wiggins after hearing of the charges against him and offered to be a character witness. Hubert knew Wiggins through his involvement in the CCBA's Law Office Management Committee. They also officed in the same building. Hubert testified that he had never heard anyone say anything negative about Wiggins. While he had not read the complaint, he knew that one of the charges involved employing a disbarred attorney. Hubert testified that, if proven, that charge would not change his opinion of Wiggins.

Arthur Wheatley, an attorney for the Chicago Transit Authority (CTA), had worked on bar committees with Wiggins. He knew that Wiggins had filed lawsuits against the CTA, but Wheatley had not handled any of them. Wheatley testified that Wiggins had a good reputation and that he never heard anything negative about Wiggins. Wheatley had introduced other attorneys to Wiggins, so that they could refer cases to him. While he had not read them, Wheatley knew generally of the charges against Wiggins. He testified that, if proven, they would not change his opinion of Wiggins.

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Attorney Roderick Sawyer had referred cases and other lawyers to Wiggins. He also was involved with CCBA committee work with Wiggins. Sawyer testified that Wiggins had a reputation as a "straight shooter" who would give an honest opinion as to whether or not a case was worth pursuing and who, while sometimes gruff, did great work for his clients. Sawyer knew the general allegations against Wiggins; he had declined Wiggins's offer to review the complaint. He testified that, if proven, the charges would not change his opinion of Wiggins.

Judge John Laurie knew Wiggins from appearances in court. Judge Laurie had discussed Wiggins with others, including other judges, and testified that he had an excellent reputation for truthfulness and veracity. Judge Laurie was vaguely familiar with some of the charges. He testified that, if proven, the charges would not change his opinion of Wiggins's truthfulness and veracity.

ANALYSIS

Factual findings by the Hearing Board are to be affirmed 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). This is a very deferential standard of review, which does not permit the Review Board to overturn the Hearing Board's factual findings merely because it disagrees with them or might have reached a different conclusion if it had been the fact finder. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397. 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

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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). Thus, the Hearing Board's legal conclusions are reviewed de novo. Discipio, 163 Ill. 2d at 527, 645 N.E.2d 906, 206 Ill. Dec. 654; see Owens, 144 Ill. 2d at 377, 581 N.E.2d 633, 163 Ill. Dec. 479.5

Generally, technical procedural objections are not favored in disciplinary cases. In re Betts, 109 Ill. 2d 154, 167, 485 N.E.2d 1081, 92 Ill. Dec. 838 (1985), cert. denied, 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 358 (1986). Issues relating to procedures before the Hearing Board and its evidentiary rulings are reviewed for abuse of discretion. In re Joyce, 133 Ill. 16, 29, 549 N.E.2d 232, 139 Ill. Dec. 720 (1989); see generally In re Horne, 97 CH 98 (Review Board Feb. 16, 2000), approved and confirmed, No. M.R. 16743 (June 30, 2000). Harmless error and waiver principles also apply to review of such issues. See generally In re Petrulis, No. 96 CH 546 (Review Board Dec. 9, 1999), approved and confirmed, No. M.R. 16556 (June 30, 2000); In re Marcanti, No. 96 CH 1 (Review Board Oct. 16, 1997), approved and confirmed, No. M.R. 14249 (Jan. 29, 1998).

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).

The parties have raised numerous issues. The Review Board has considered all of the issues raised by the parties. As to any issues not expressly discussed herein, the Review Board has found no reversible error.6

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As to Count I, Wiggins challenges the Hearing Board's findings of misconduct. The Administrator seeks to have the Review Board uphold the Hearing Board's findings of misconduct and, in addition, find that Wiggins violated Rule 8.4(a)(2) by aiding Block in the unauthorized practice of law. We affirm the Hearing Board's findings as to the misconduct charged in Count I.

As Wiggins observes, generally violations of Rule 8.4(a)(5) and/or Supreme Court Rule 770 are found in situations in which violations of other rules are also proven. See In re Storment, 203 Ill. 2d 378, 397, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002); In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991). However, violation of another rule is not necessarily a prerequisite to a finding that a respondent violated Rule 8.4(a)(5) or Supreme Court Rule 770. E.g., In re Cwik, No. 89 CH 690 (Review Board March 9, 1993); see also In re Smith, 168 Ill. 2d 269, 285-88, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995).

Under Supreme Court Rule 770, attorneys may be disciplined for conduct that tends to defeat the administration of justice or to bring the courts or legal profession into disrepute. Rule 770 focuses on the respondent's conduct. See In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997). In contrast, the focus of Rule 8.4(a)(5) is on the impact of the conduct. See e.g., In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840, 148 Ill. Dec. 243 (1990).

The Hearing Board's conclusions that Wiggins's conduct violated Rule 8.4(a)(5) and Supreme Court Rule 770 are supported both legally and factually. As the Hearing Board found, Wiggins allowed Block, a disbarred attorney, to maintain a presence in his law office and perform the duties of a paralegal or law clerk. The Hearing Board correctly observed that Block's presence in Wiggins's office created the possibility that the public's regard for the effectiveness of the disciplinary process would be lessened. See In re Kuta, 86 Ill. 2d 154, 427

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N.E.2d 136, 140, 56 Ill. Dec. 56 (1981). Such circumstances are sufficient to support the Hearing Board's finding that Wiggins violated Rule 770. See generally In re Discipio, 163 Ill. 2d 515, 526, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994); 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). Further, the evidence demonstrated that Wiggins had Block working on litigation matters and drafting pleadings. Given the facts of this case, this is a sufficient nexus with the administration of justice to support the Hearing Board's finding that Wiggins violated Rule 8.4(a)(5). See generally Rinella, 175 Ill. 2d 504, 677 N.E.2d at 915, 222 Ill. Dec. 375.

We agree with the Hearing Board that a violation of Rule 8.4(a)(2) and Supreme Court Rule 764 was not proven.

Disciplinary rules are to be strictly construed. In re Winthrop, No. 02 CH 27 (Review Board Feb. 8, 2005), reversed on other grounds, 219 Ill. 2d 526, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006); see In re Owens, 144 Ill. 2d 372, 377-78, 581 N.E.2d 633, 163 Ill. Dec. 479 (1991). Given the language of the rules at issue, and the language of the complaint, the Hearing Board did not err in deciding that the Administrator had not proven that Wiggins violated Rule 8.4(a)(2) or Rule 764(b).

Rule 8.4(a)(2) prohibits an attorney from aiding another in conduct the lawyer knows will violate "these Rules." Count I of the Administrator's complaint charges that Wiggins violated Rule 8.4(a)(2) by giving assistance to another's conduct, when he knew that conduct would violate the Rules of Professional Conduct, and that Wiggins assisted a disciplined attorney in conduct which violated Supreme Court Rule 764(b). Thus, the complaint reads as though the Rule that Wiggins allegedly assisted Block in violating is Supreme Court Rule 764(b).

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However, as the Hearing Board observed, Supreme Court Rule 764(b) is not a rule of professional conduct. Consequently, it cannot be the basis for a finding of a violation of Rule 8.4(a)(2).

Similarly, Wiggins did not violate Supreme Court Rule 764(b). Rule 764(b) is a rule directed to disciplined attorneys and to attorneys affiliated with such attorneys as partners or associates. At the time, Wiggins was not a disciplined attorney. He was neither Block's partner nor Block's associate. Therefore, Wiggins did not fall within Rule 764(b).

The Administrator seeks to have us reverse the Hearing Board's finding as to Rule 8.4(a)(2) by arguing that the alleged violation of that Rule was really based on allegations that Block engaged in the unauthorized practice of law.

An attorney may be disciplined only for the misconduct charged in the complaint. In re Chandler, 161 Ill. 2d 459, 470, 641 N.E.2d 473, 204 Ill. Dec. 249 (1994); In re Doyle, 144 Ill. 2d 451, 471, 581 N.E.2d 669, 163 Ill. Dec. 515 (1991). The complaint must state the facts of the misconduct charged and reasonably inform the lawyer of the misconduct of which he or she is accused. In re Beatty, 118 Ill. 2d 489, 499, 517 N.E.2d 1065, 115 Ill. Dec. 379 (1987); In re Harris, 93 Ill. 2d 285, 443 N.E.2d 557, 559-60, 66 Ill. Dec. 631 (1982). In analyzing issues relating to the sufficiency of the complaint, a key consideration is whether the complaint's allegations were misleading. See Harris, 93 Ill. 2d 285, 443 N.E.2d at 559-60, 66 Ill. Dec. 631.

The complaint does not cite or mention Rule 5.5 (134 Ill. 2d R. 5.5), the Rule that proscribes the unauthorized practice of law. The Administrator contends that the complaint adequately referenced the unauthorized practice of law by Block. However, we disagree with the Administrator that the complaint's failure to specify which rule was allegedly violated was harmless in this case.

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Where the Administrator seeks to charge a respondent with conduct that violates a specific disciplinary rule, the complaint should specify the rule(s) allegedly violated. The complaint in this case did not specify Rule 5.5. As a result of the complaint's failure to do so, the Hearing Board, quite understandably, focused its attention on the misconduct that was charged, i.e., whether Wiggins aided Block in conduct that violated Rule 764(b). The Hearing Board expressly noted, in discussing the sanction, that there were no allegations that Block engaged in the unauthorized practice of law. Under these circumstances, the Administrator cannot now claim that the Hearing Board erred in failing to find that the respondent aided and abetted in the violation of a different, uncharged rule.

Therefore, we affirm the Hearing Board's finding that the Administrator did not prove that Wiggins violated Rule 8.4(a)(2) or Supreme Court Rule 764(b).7

As to Count II, the Administrator acknowledges that the Hearing Board erred in finding that Wiggins violated Rule 1.2(a). The complaint charged that Wiggins violated Rule 1.2(a) by settling Shyne's underinsured motorist claim without her authority. The Hearing Board, however, found that Wiggins violated Rule 1.2(a) by settling the claim against the other driver without Shyne's knowledge or authority. The conduct charged in the complaint, therefore, differs from the conduct on which the Hearing Board based its finding of misconduct. An attorney may be disciplined only for the misconduct charged in the complaint. Doyle, 144 Ill. 2d at 471, 581 N.E.2d 669, 163 Ill. Dec. 515. We therefore reverse the finding that Wiggins violated Rule 1.2(a) as to Count II.

We affirm the Hearing Board's remaining findings as to the misconduct charged in Count II, as well as it findings as to the misconduct charged in Count III. Those findings are

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based primarily on factual issues. The Hearing Board's findings on those issues are not against the manifest weight of the evidence.

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 in any given case, 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). In imposing discipline, the purpose is not to punish the individual respondent, but to protect the public, to maintain the integrity of the profession, and to 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 be considered in determining discipline. Discipio, 163 Ill. 2d at 528, 645 N.E.2d 906, 206 Ill. Dec. 654. 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). Regardless of the precise rule violations found, a respondent is to be disciplined based on his or her conduct. See generally In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051, 139 Ill. Dec. 495 (1989).

The Administrator seeks to have the Review Board uphold the one-year suspension recommended by the Hearing Board. Wiggins seeks a reprimand. The totality of the proven misconduct requires more than a reprimand, censure, or short suspension. A one-year suspension is warranted, given all the facts and circumstances of this case.

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The one-year suspension recommended by the Hearing Board is within the range of discipline imposed for similar misconduct. This is particularly true given the progression, over time, in the discipline imposed by the Court for similar misconduct.

In In re Schelly, 94 Ill. 2d 234, 446 N.E.2d 236, 68 Ill. Dec. 502 (1983), the respondent was suspended for three months. Schelly employed Koenig, a close friend who had been disbarred, as a law clerk. Koenig told Schelly that he had been unable to find another job, and Schelly's conduct was motivated solely by a desire to help his friend, not to enrich himself. The arrangement lasted for five to six years, until the Administrator charged Schelly. Schelly limited Koenig's responsibilities to preparing case files, updating the docket book, and requesting continuances when Schelly was not available. Koenig exceeded these responsibilities more than once. Schelly continued to employ Koenig even after learning of these activities. In considering the discipline to impose upon Schelly, the Court noted that Schelly presented significant mitigating evidence. Further, while the misconduct was serious, Schelly was the first case in which the Court disciplined an attorney for aiding a non-attorney in the practice of law. See In re Schelly, 94 Ill. 2d 234, 239, 446 N.E.2d 236, 68 Ill. Dec. 502 (1983).

The respondent in In re Yamaguchi, 118 Ill. 2d 417, 515 N.E.2d 1235, 113 Ill. Dec. 928 (1987) was suspended for six months for having signed numerous tax valuation complaints that either Yamaguchi had not reviewed or were blank. The complaints were then completed and filed by a non-attorney, Ebert, whom Yamaguchi did not employ. This arrangement continued for four years. Yamaguchi, who had no prior discipline in over 40 years of legal practice, signed the complaints to accommodate Ebert, a close friend, who had been filing tax valuation complaints for years until the assessor's office began to enforce a rule

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requiring such complaints to be signed by an attorney. There was no evidence that Yamaguchi profited in any way from this conduct.

In In re Discipio, 163 Ill. 2d 515, 645 N.E. 2d 906, 206 Ill. Dec. 654 (1994), the respondent was suspended for two years for having aided a disbarred attorney, Jerome Ruther, in the unauthorized practice of law and splitting legal fees with the non-attorney. The Court imposed a two-year suspension even though Discipio presented significant mitigating evidence and had made an effort to curtail Ruther's activities.8

Wiggins set up an arrangement that enabled a disbarred attorney, Block, to maintain a presence in his law office. This arrangement continued for ten years. Block engaged in a broad range of activities during that time, including preparing pleadings, and working on legal files. Wiggins benefited substantially from their arrangement. Wiggins, whose practice was not doing well when he met Block, built a successful personal injury practice with Block's assistance.

Further, as the Hearing Board observed, while Wiggins claimed that he did not know Block's disciplinary status, he could have easily determined it. In addition, the efforts that Wiggins undertook to structure limits within which Block could operate evidence his awareness that Block was in fact disbarred.

Conduct that enables a disbarred attorney to maintain a presence in a law office and engage in activities that, at the very least, a paralegal would perform casts serious doubt upon the integrity of the profession and its ability to police itself. See Kuta, 86 Ill. 2d 154, 427 N.E.2d at 140, 56 Ill. Dec. 56. The nature of this misconduct is very serious. Similar conduct by other attorneys in the future must be deterred. See Discipio, 163 Ill. 2d at 528, 645 N.E.2d 906,

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206 Ill. Dec. 654. Therefore, the misconduct proven as to Count I alone warrants significant discipline.

The Hearing Board's recommendation of a one-year suspension is also supported by the fact that Wiggins also engaged in additional misconduct. Some of that misconduct was unintentional, i.e., the failure to promptly pay Shyne her portion of the settlement proceeds, and would not merit significant discipline. However, other proven misconduct, such as that found as to Count III, involved dishonesty. The presence of this additional misconduct further supports the sanction recommended by the Hearing Board.9

For the foregoing reasons, we affirm the Hearing Board's findings and conclusions of law as to the misconduct charged, except that we vacate its finding that Wiggins violated Rule 1.2(a) as to Count II. We also affirm the Hearing Board's recommendation that Respondent-Appellant, A. Leo Wiggins, Jr., be suspended from the practice of law for one year.

Date Entered: 28 September 2007

Respectfully Submitted,

Leonard F. Amari
Daniel P. Duffy
Terrence V. O'Leary

_________________________________
1
Because Wiggins was not charged with splitting legal fees with a non-attorney, evidence relating to the manner in which Block was paid is not detailed here.

 2 Given Wiggins's efforts to avoid misrepresenting Block's status as an attorney, the Hearing Board found no violation of Rule 8.4(a)(4) as to Count I; the Administrator does not challenge this finding.

3 The Hearing Board found that the Administrator did not prove, as to Count II, that Wiggins engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4).  The Administrator does not challenge this finding.

4 Evidence was presented to the Hearing Board about other allegations of misconduct as to Count III.  As to those issues, the Hearing Board found in favor of Wiggins.  As the Administrator has not challenged those findings, those facts are not addressed in this report. 

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5 The Administrator argues that, to the extent that the issues involve application of undisputed facts to the law, the applicable standard of review is a clearly erroneous standard.  The Review Board has declined to follow the clearly erroneous standard in other cases.  E.g., In re Feeley, No. 03 CH 78 (Review Board), petition for leave to file exceptions allowed, discipline modified, No. M.R. 20740 (March 21, 2006). 

6 For example, Wiggins alleges bias by the Hearing Board.  However, claims of bias cannot be based simply on allegations in the respondent's brief.  Betts, 109 Ill. 2d at 169, 485 N.E.2d 1081, 92 Ill. Dec. 838.  Instead, the record as a whole must be considered.  See In re Petrulis, No. 96 CH 546 (Review Board Dec. 9, 1999), approved and confirmed, No. M.R. 16556 (June 30, 2000).  After consideration of the record as a whole, we find absolutely no basis for any claims of bias.  Similarly, Wiggins objects to the arguments by the Administrator's attorney at hearing that Wiggins split fees with Block, conduct that was not charged in the complaint.  The fact that this conduct was not charged was discussed at the hearing, and it is clear that the Hearing Board understood this fact.  The Hearing Board expressly decided that the Administrator had not proven that Wiggins split fees with Block.  The record demonstrates no prejudice from such arguments.  See Betts, 109 Ill. 2d at 171, 485 N.E.2d 1081, 92 Ill. Dec. 838. 

7 This decision does not affect our recommendation as to discipline.  Our recommendation as to discipline is based on the proven conduct of the respondent, not the number of disciplinary rules violated.  See generally In re Gerard, 132 Ill. 2d 507, 532, 548 N.E.2d 1051, 139 Ill. Dec. 495 (1989).

8 In In re Martay, No. 91 CH 206 (Review Board Dec. 10, 1993), approved and confirmed, No. M.R. 9894 (Mar. 30, 1994), the respondent had aided the same disbarred attorney in the unauthorized practice of law and split legal fees with him.  The Court, in a summary order, approved the Review Board's recommendation that Martay be suspended for one year.  The order in Martay, however, predated the Court's opinion in Discipio.  Therefore, the fact that Martay received a one-year suspension for conduct more serious than that of Wiggins does not indicate that a one-year suspension for Wiggins is unduly harsh.

9 This conclusion makes it unnecessary for us to address the Administrator's argument that the Hearing Board's finding that Wiggins settled a claim for Shyne without authority may be considered in aggravation, even though conduct on which that finding was based was not charged in the complaint.