Filed February 15, 2007
In re Kevin Michael Brill
Commission No. 04 CH 79
Synopsis of Review Board Report and Recommendation
The Administrator filed a three-count complaint against Brill, charging him with making false statements and creating and offering false evidence in two attorney disciplinary matters, and forgery and creation of false evidence in a civil matter.
The Hearing Board found that Brill committed all of the charged misconduct and recommended disbarment.
Brill filed a notice of exceptions and argued before the Review Board that (1) the Hearing Board lacked subject matter jurisdiction over the issue of the genuineness of the allegedly forged promissory notes, (2) the issues raised in the disciplinary proceeding were barred by res judicata, and (3) the Hearing Board's findings of misconduct were against the manifest weight of the evidence. As part of his challenge to the sufficiency of the evidence, Brill contended that the Administrator was required to present the testimony of a handwriting expert to prove forgery.
The Review Board determined that the Hearing Board had jurisdiction to determine for disciplinary purposes whether Brill forged the promissory notes, and that its determination did not infringe upon the jurisdiction of the bankruptcy court. The Review Board rejected Brill's res judicata argument, and also determined that the findings of misconduct were amply supported by the evidence. The Review Board concluded that circumstantial evidence can be enough to prove forgery by clear and convincing evidence, and that the Administrator successfully did so in this case.
The Review Board recommended that Brill be disbarred.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
KEVIN MICHAEL BRILL,
Commission No. 04 CH 79
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
In a three-count complaint, the Administrator-Appellee charged Respondent-Appellant, Kevin Michael Brill, with making false statements and creating and offering false evidence in two disciplinary proceedings and a civil lawsuit.
Following a hearing, the Hearing Board found respondent guilty of all of the charged misconduct, which included forgery; filing a suit when he knew or reasonably should have known that it would serve merely to harass or maliciously injure another in violation of Illinois Rule of Professional Conduct 1.2(f)(1)1; advancing a claim he knew was unwarranted under existing law in violation of Rule 1.2(f)(2); making a statement of material fact to a tribunal which he knew or reasonably should have known was false in violation of Rule 3.3(a)(1); offering evidence he knew to be false in appearing in a professional capacity before a tribunal in violation of Rule 3.3(a)(4); participating in the creation of false evidence in appearing in a professional capacity before a tribunal in violation of Rule 3.3(a)(5); making a statement of material fact he knew to be false, in connection with a lawyer disciplinary matter, in violation of Rule 8.1(a)(1); engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4); engaging in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and engaging in conduct which tends to defeat the administration
of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. The Hearing Board recommended that Respondent be disbarred.
Respondent filed exceptions and raises eighteen issues on review. For the reasons set forth in detail below, we will review Respondent's arguments that (1) the ARDC lacks subject matter jurisdiction over this matter, (2) this matter is barred by res judicata, and (3) the Hearing Board's findings are against the manifest weight of the evidence. We will not review Respondent's remaining arguments.
Between 1992 and 1995, Respondent represented Gloria Golden, now known as Glourious Swanson Greer-Tucker (Golden), on several bankruptcy petitions. In August 2000, the Administrator charged Respondent with converting over $14,000 in escrow funds that he was supposed to be holding for Golden in his client trust account. See In re Brill, No. 00 CH 34 (Hearing Board, Feb. 26. 2002). Both before and after the Administrator filed the complaint in No. 00 CH 34, Respondent stated under oath that Golden had not authorized him to disburse any of the escrow funds. Respondent testified at a hearing on October 2, 2001, that he did not have anything in writing from Golden that authorized him to use the escrow funds to pay his attorney fees. Following the hearing, the Hearing Board found that Respondent had committed conversion and recommended an 18-month suspension. Brill, No. 00 CH 34 (Hearing Board, Feb. 26. 2002).
Respondent filed exceptions to the Hearing Board's Report and Recommendation. In a pro se brief he filed with the Review Board on July 8, 2002, Respondent attached as an exhibit a copy of a promissory note dated July 6, 1995 (First Promissory Note). The note contains Golden's purported signature and states that Golden agreed to pay Respondent
$14,192.25, plus interest, in monthly installments of $300. The promissory note also authorizes Respondent to withdraw $10,733.25 of the escrow funds to pay Golden's attorney fees.
On July 18, 2002, Respondent filed a motion with the Illinois Supreme Court seeking to vacate an order suspending him on an interim basis. Respondent attached the First Promissory Note to his motion, and also attached a Second Promissory Note, which was dated July 6, 1995. The Second Promissory Note, also purportedly signed by Golden, states that Golden agrees to pay Respondent $1205 plus interest in $300 monthly installments. It authorizes Respondent to take $3750 of Golden's escrow funds. Later, Respondent attached the Second Promissory Note as an exhibit to his reply brief filed with the Review Board. He also attached the promissory notes to his petition to the supreme court for leave to file exceptions to the Review Board's Report and Recommendation. Ultimately, the supreme court suspended Respondent for 18 months. In re Brill, No. M.R. 18717 (Sept. 19, 2003).
In August 2003, the Administrator filed charges against Respondent in Case No. 03 CH 85, alleging that he practiced law while his suspension was in effect. At the hearing in that matter, Respondent offered the promissory notes into evidence and testified to their authenticity. The Hearing Board found that Respondent had neglected a client's case, engaged in the unauthorized practice of law and failed to comply with the Administrator's requests for information. In re Brill, No. 03 CH 85 (Hearing Board, Dec. 8, 2004). He received a suspension of 30 months and until further order of the court. In re Brill, petition for leave to file exceptions denied, No. M.R. 20757 (May 16, 2006).
In April 2004, Respondent filed a civil suit against Golden in Du Page County, alleging that Golden had executed the promissory notes and, therefore, owed him $57,445.02 in principal and interest. The promissory notes were attached to the complaint.
At the hearing in the instant matter, Ms. Golden testified that she did not authorize Respondent to use any of the escrow funds and did not sign the First or Second Promissory Note. She further testified that she was in Mississippi on July 6, 1995, the date written on the promissory notes. In addition, Golden stated that she did not remember signing several other documents that Respondent's counsel showed to her, and that she was not sure if the signatures thereon were hers.
Golden stated that she had not seen a copy of Respondent's complaint against her prior to the hearing. She had been served with papers and recognized the amount Respondent alleged that she owed him. Golden stated that she included the alleged debt to Respondent on a 2004 bankruptcy petition filed in Michigan because her attorney advised her to do so. On the bankruptcy petition, she checked the box indicating that the amount was disputed.
Dennis Berkson testified that he represented Respondent in Case No. 00 CH 34. He stated that during those proceedings Respondent never provided him with any documents indicating that Golden had allowed him to use her escrow funds or showing the amount of fees that Golden owed. Berkson testified that it was his understanding that Respondent submitted documents to the ARDC in 1998, but he did not represent Respondent at that time and did not know what documents Respondent provided.
Respondent called his sister, Nancy Beth Sandefur, as a witness. She testified that she was at Respondent's office on or about July 6, 1995, and saw an African-American woman there signing papers. She said that she recalled her father, who shared an office with Respondent, saying that the woman's name was Gloria Golden. Sandefur testified that she saw the same woman at Respondent's hearing. On cross-examination, Sandefur testified that in 1995
she only saw the woman from the back, but that she looked similar to the woman she saw at the hearing.
Respondent testified that he asked Golden to sign the First and Second Promissory Notes in July 1995, and recommended that she obtain independent legal advice about entering into such an agreement with him. Respondent testified that Golden came to his office and signed the notes. He gave her two detailed statements of his services and went over them with her and also gave her copies of the signed notes. Respondent had in Golden's file a mock promissory note bearing what purported to be Golden's signature. Respondent testified that someone else signed Golden's name, but he does not know who did so.
Respondent was asked to give a sworn statement to the ARDC in February 1998 in response to a complaint filed by Golden. Respondent testified that he brought the promissory notes to the sworn statement. According to Respondent, there was a discussion about the promissory notes off the record. Respondent stated that he was not allowed to mention the notes during his depositions or the hearing in Case No. 00 CH 34. According to Respondent, the promissory notes were offered into evidence in that matter but were excluded for failure to timely produce them. They were not on Respondent's exhibit list, and he made no record that they had been offered for submission into evidence.
The Administrator did not offer any expert handwriting testimony in the instant matter. Respondent testified that counsel for the Administrator had informed him that he had a handwriting expert, but the expert was later withdrawn because she could not offer an opinion.
Respondent offered no evidence in mitigation. In aggravation, the Administrator submitted evidence that Respondent had been censured in 1988 for neglecting eight cases, and suspended for eighteen months in 2003 for converting Golden's funds. The Administrator also
presented evidence that Respondent had filed a complaint in Golden's Michigan bankruptcy proceeding objecting to her discharge in bankruptcy on the ground that she owed him $57,445.02 in fees. Respondent accused Golden of lying to the bankruptcy court by failing to list on her bankruptcy petition approximately $14,300 in funds she had received from the ARDC Client Protection Fund.
The Hearing Board found that the evidence "overwhelmingly" established that Respondent forged Golden's signatures on the two promissory notes. The Hearing Board found credible Golden's testimony that she did not sign the notes, and found the testimony of Respondent and his sister to be "highly incredible."
We begin by noting that Respondent lists eighteen issues presented for review, yet fails to properly brief most of these issues. Rule 302(f)(5) of the Rules of the Attorney Registration and Disciplinary Commission requires the appellant to set forth in his or her argument "the contentions of the party and the reasons therefor, with citation of the authorities and the pages of the record relied on." ARDC Rule 302(i) provides that the Review Board may, among other things, refuse to review arguments not supported by citation to the record or legal precedent. We conclude that the only issues that Respondent has properly presented for review are the following: (1) that the ARDC and Illinois Supreme Court have no subject matter jurisdiction over the question of whether Respondent is a creditor of his former client; (2) that the instant disciplinary matter is barred by res judicata; and (3) that the Administrator failed to carry her burden of proof with respect to whether Respondent forged the promissory notes at issue. The remainder of Respondent's arguments are presented in a cursory fashion with
inadequate explanation, citation to the record, and citation to relevant authority, in violation of ARDC Rule 302(f)(5). Consequently, we decline to address them.
Respondent contends that the ARDC and Illinois Supreme Court lack subject matter jurisdiction over the instant matter because the United States Bankruptcy Court "is the only court with jurisdiction to decide the genuineness of the notes signed by Greer Tuckerů" Respondent's argument lacks merit. The Hearing Board made no finding regarding the validity of Respondent's claim in Golden's bankruptcy proceeding. Rather, it made findings regarding the authenticity of the promissory notes for the purpose of determining whether Respondent violated the Rules of Professional Conduct. Whether the Hearing Board's findings have any ramification in the Golden bankruptcy proceeding is for the bankruptcy court to determine; the Hearing Board did not purport to make such a determination. Instead, the issue the Hearing Board confronted and decided revolved around whether an Illinois-licensed attorney participated in the falsification of documents and acted deceitfully. Our supreme court bears sole responsibility for disciplining attorneys licensed in this State. In re Ettinger, 128 Ill.2d 351, 365, 538 N.E.2d 1152 (1989). The ARDC acts as an arm of the supreme court in administering its disciplinary responsibilities. In re Mitan, 75 Ill.2d 118, 123-24, 387 N.E.2d 278 (1979). Hence, the ARDC and supreme court clearly have jurisdiction over the charges in this matter.
Respondent next contends that the instant disciplinary matter is barred by res judicata. The doctrine of res judicata applies when there is (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of cause of action; and (3) an identity of parties or their privies. Simcox v Simcox, 131 Ill.2d 491, 497, 546 N.E.2d 609, 137 Ill.Dec. 664 (1989). Respondent argues that the Administrator could have raised the validity of the notes in Respondent's previous disciplinary proceeding, In re Brill, No. 00 CH 34. His
argument is not persuasive. It is undisputed that the notes were not admitted into evidence in the prior disciplinary proceeding and there was no judgment regarding the notes' validity. According to Respondent, he produced the promissory notes to the Administrator in 1998, so the Administrator could have pursued the forgery charges in the earlier proceeding. This contention is contrary to the Hearing Board's finding that Respondent did not testify about or produce the promissory notes during his prior disciplinary proceeding despite several opportunities to do so. Respondent cites no credible evidence to contradict the Hearing Board's finding. Accordingly, we conclude that this matter is not barred by res judicata.
Respondent further argues that the Administrator did not prove by clear and convincing evidence that the signatures on the promissory notes were forgeries. It is well-established that the Administrator bears the burden of proving the charged misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 168, 710, N.E.2d 390, 237 Ill. Dec. 760 (1999). The Hearing Board's factual findings, including its credibility findings, are entitled to great deference on appeal and will not be disturbed unless they are against the manifest weight of the evidence. In re Smith, 168 Ill.2d 269, 283, 659 N.E.2d 896, 213 Ill. Dec. 550 (1996).
Respondent asserts that Section 5/8-1501 of the Illinois Code of Civil Procedure (735 ILCS 5/8-1501) (West 2004) required the Administrator to present expert testimony or exemplars of Golden's signature to be compared with the promissory notes. Respondent's assertion is without merit.
Section 5/8-1501 merely sets forth different methods by which a party may "prove handwriting":
In all courts of this State it shall be lawful to prove handwriting by comparison made by the witness or jury with writings properly in the files of records of the case, admitted in evidence or treated as genuine or admitted to be genuine, by the party against whom the
evidence is offered, or proved to be genuine to the satisfaction of the court. 735 ILCS 5/8-1501 (West 2004).
Section 5/8-1501 does not state that handwriting comparisons must be offered as evidence. Neither does it say that expert testimony is required to prove handwriting.
And although courts have held that the genuineness of a signature is a proper question for a handwriting expert (Miles v. Graham, 7 Ill.App.3d 17, 19, 286 N.E.2d 497 (1972)), the general rule is that a jury is free to disregard that testimony if other evidence is determined to be more credible. See, e.g. (De Lage Landen Financial Services, Inc. v. Urban Partnership, LLC, 903 A. 2d 586, 591 fns. 5, 6 (Pa. Superior Ct. 2006) ("[W]e have found no legal requirement that a party alleging forgery must present a handwriting expert to support his claim."). See also U.S. v. Riddle, 41 M.J. 673, 676 (U.S. Air Force Ct. of Criminal Appeals 1994) ("We are unaware of any legal requirement for the government to prove forgery only with a handwriting expert, although the use of an expert is usually a mark of solid legal practice in preparing such a case.").
In this case, though the Administrator did not present expert evidence, the Hearing Board found that the circumstantial evidence "overwhelmingly" established that Respondent forged the promissory notes, for the reasons set forth in detail below. We can find no support in the law for Respondent's implicit contention that circumstantial evidence can never be enough, by itself, to establish forgery by a "clear and convincing" standard. And we cannot say, in the absence of any countervailing evidence, that the Hearing Board's finding in this regard was in error.
We further conclude that neither Golden's failure to defend against Respondent's lawsuit, nor her listing of her alleged debt to Respondent on her bankruptcy petition negates the findings of misconduct. Golden marked on her bankruptcy petition that her alleged debt to
Respondent was disputed, so she did not admit in that proceeding that the notes were valid. As for the Du Page County lawsuit, Golden testified that she had never seen the complaint against her prior to the hearing in this matter, and the Hearing Board found that Respondent had filed the lawsuit for the purpose of harassing Golden. Ultimately, her inaction in defending the lawsuit does not preclude a finding that Respondent committed misconduct.
The Hearing Board found that the evidence overwhelmingly established that Respondent committed the charged misconduct. In so doing, it relied in large measure upon Respondent's lack of credibility. We give particular deference to the Hearing Board's credibility findings, and Respondent has provided no persuasive reason for us to reject those findings. Moreover, the remaining evidence amply supports the Hearing Board's findings. The testimony of Respondent's former attorney that Respondent never mentioned the promissory notes in the prior disciplinary action, the lack of any reference to the notes in the record of the prior disciplinary action, Respondent's sworn statements in the prior proceedings that he had no documents authorizing him to use Golden's funds, and the timing of the production of the promissory notes all support our conclusion that the Hearing Board's findings are in accord with the manifest weight of the evidence.
Respondent does not challenge the Hearing Board's recommended sanction of disbarment, and we have no reason to disagree with the Hearing Board's recommendation. As the Hearing Board noted, the supreme court has held that the perpetration of a fraud upon the court is such serious misconduct as to warrant disbarment. See In re Ingersoll, 186 Ill.2d 163, 710 N.E.2d 390 (1999); In re Bell, 147 Ill.2d 15, 588 N.E.2d 1093 (1992); In re Lewis, Jr., 138 Ill.2d 310, 562 N.E.2d 198 (1990). We further note that the supreme court suspended Respondent's license for 30 months and until further order of the court after the Hearing Board
issued its recommendation in this matter. See Brill, No. M.R. 20757 (May 16, 2006). This lends additional support to our conclusion that disbarment is the appropriate sanction. Respondent's intentionally dishonest and deceptive misconduct has demonstrated that he is unable to abide by the ethical standards required of attorneys who are licensed to practice in Illinois. Therefore, we recommend that Respondent be disbarred.
For the foregoing reasons, we affirm the Hearing Board's factual findings and findings of misconduct. We recommend that Respondent, Kevin Michael Brill, be disbarred.
Date Entered: February 15, 2007
Daniel P. Duffy
1 All references herein to a Rule refer to the Illinois Rules of Professional Conduct.