Filed September 4, 2007
In re William Earl Brooks
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) filing a suit or taking other action on behalf of a client when the lawyer knows or reasonably should know that such action would serve merely to harass or maliciously injure another; 2) advancing a claim the lawyer knows is unwarranted under existing law; 3) failure to provide competent representation to a client; 4) initiating a proceeding where there is no basis for doing so that is not frivolous; 5) failing to act with reasonable diligence and promptness in representing a client; 6) failing to promptly respond to a client's reasonable requests for information about the status of their legal matter; 7) failing to promptly refund any part of a fee paid in advance that has not been earned; 8) engaging in conduct that is prejudicial to the administration of justice; 9) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 1.1, 1.2(f)(1), 1.2(f)(2), 1.3, 3.1, 1.4(a), 1.16(e), 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: One year suspension and until further order of Court.
DATE OF OPINION: September 4, 2007.
HEARING PANEL: Lon M. Richey, Michelle M. Montgomery, and Katheryn H. Ward.
RESPONDENT'S COUNSEL: Frederick F. Cohn.
ADMINISTRATOR'S COUNSEL: Alicia F. Duncan.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
WILLIAM EARL BROOKS,
Commission No. 05 CH 47
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on July 17, 2006 and June 6, 2007 at the offices of the Attorney Registration and Disciplinary Commission, 130 East Randolph, Chicago, Illinois before a panel consisting of Lon M. Richey, Chair, Michelle M. Montgomery, and Katheryn H. Ward. Alicia F. Duncan represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent William Earl Brooks appeared and was represented by Frederick F. Cohn.
On July 5, 2005, the Administrator filed a five-count Complaint against Respondent. Count III was dismissed at hearing on motion by the Administrator. The remaining counts charged that Respondent filed an unwarranted claim, neglected three client matters, failed to respond to client inquiries, and failed to return an unearned fee.
On August 26, 2005 Respondent filed his Answer in which he admitted many of the factual allegations but denied all charges of professional misconduct.
The hearing in this matter commenced on July 17, 2006 and the Administrator presented several witnesses at that time. In light of information regarding Respondent's recent visit to a
psychologist, the Administrator asked that the hearing be continued so that Respondent could be evaluated by a medical professional. The hearing was adjourned and continued for that purpose. After Respondent was evaluated by a psychiatrist and a neuropsychologist, the hearing recommenced on June 6, 2007.
The Administrator's case consisted of seven witnesses, including two expert witnesses, and seventeen exhibits. Respondent testified on his own behalf and presented one group exhibit.
In March 2003 Respondent agreed to represent Karen Washington with regard to a bankruptcy petition she had filed in the United States Bankruptcy Court for the Northern District of Illinois. On April 15, 2003, he filed his appearance on her behalf. (Adm. Ex. 1).
Andrew Nelson, an attorney with a firm in Chicago, testified that his firm represented Sterling Bank & Trust ("Sterling Bank") in a series of Chapter 13 bankruptcy cases filed by Karen Washington. Sterling Bank held the first mortgage on Washington's residence. Nelson stated that in January 2003, at a time when foreclosure proceedings had been brought against Washington's residence, Washington filed her fourth bankruptcy. The bankruptcy filing automatically stayed the foreclosure proceedings. (Tr. 121-31, 135; Adm. Ex. 1, 5, 6).
In April 2003, when Respondent filed his appearance on behalf of Washington, Washington was in a default posture both on payments to the trustee as well as her direct monthly mortgage payments to Sterling Bank. On May 7, 2003, the trustee filed a motion to dismiss the Chapter 13 case for unreasonable delay and failure to make payments to the trustee. On May 19, 2003 Nelson's firm filed a motion on behalf of Sterling Bank to modify the
automatic stay or to dismiss the case with a 180-day bar to refiling. Respondent did not file a response to either motion. (Tr. 132-35; Adm. Ex. 1).
On May 27, 2003, the court granted Sterling Bank's motion to dismiss the Chapter 13 case and imposed a 180-day bar to refiling. Nelson stated that the 180-day bar is an extraordinary form of relief designed to combat perceived abuses of the bankruptcy process. The order did not specify the date that the 180-day bar expired. Respondent did not attempt to appeal the May 27th order, but filed a motion to vacate the dismissal. That motion was denied. (Tr. 136-39, 159, 172; Adm. Ex. 1)
Nelson stated that the 180-day bar on refiling enabled Sterling Bank to proceed with the foreclosure process, and a judgment of foreclosure was entered on August 18, 2003. Thereafter, a sale of the property was scheduled for November 20, 2003. Nelson stated that his office sent out notices of the sale as required by law and published the notice three times. He had no evidence that Washington received the mailed notice. Nelson did not receive any communications from Respondent and, to his knowledge, Respondent did not enter an appearance in the foreclosure matter. (Tr. 138-41, 161)
Nelson stated that Sterling Bank's efforts to sell the property were stayed by Respondent's filing of another Chapter 13 bankruptcy petition on behalf of Washington. The petition was filed on November 20, 2003, which was the 177th day of the 180-day bar. The only creditor identified in the petition was Sterling Bank, even though additional creditors had been listed in previous petitions. Further, the petition did not disclose the pending foreclosure proceedings against Washington's property, did not list all of Washington's prior bankruptcies, and understated the amount owed to Sterling Bank. (Tr. 142-48; Adm. Ex. 22).
Nelson stated that attorneys have an affirmative duty to ascertain whether a debtor has filed previous bankruptcy petitions. The debtor's attorney also must determine whether the 180-
day bar has expired. Nelson stated that a miscalculation of dates is not a judicially recognized excuse for violation of the 180-day bar. (Tr. 169-72).
On December 4, 2003, Sterling Bank filed a motion to annul the automatic stay and dismiss the bankruptcy case. The motion, which was scheduled to be heard on December 15, 2003, also sought sanctions against Respondent on the basis that the bankruptcy was filed for the sole purpose of delaying the foreclosure sale, was in violation of the May 27, 2003 court order, and was in violation of Bankruptcy Rule 9011(b)(1) and (2) which prohibits pleadings that are unwarranted or frivolous or that are filed for the purpose of delay.1 Respondent asked for a continuance on the basis that he had not had sufficient time to investigate the allegations in Sterling Bank's motion and he had been under extreme stress due to his wife's illness. Although Respondent noticed his motion to continue for December 15, 2003, he did not appear on that date. The Court granted Sterling Bank's motion and entered an order annulling the automatic stay and dismissing the bankruptcy case with another 180-day bar for refiling. Further, Washington was ordered to pay sanctions in the amount of $1,307.62. (Tr. 151, 162-64; Adm. Ex. 2)
On January 9, 2004, Washington filed her own motion to vacate the dismissal order of December 15, 2003. The Court struck that motion and Sterling Bank proceeded with the foreclosure sale on Washington's property. The property was sold on January 16, 2004 and Washington lost all rights to the property. (Tr. 153, 157; Adm. Ex. 2).
Nelson testified that, sometime after December 15, 2003, he spoke to Respondent and Respondent promised to send a check pursuant to the sanction order. When Nelson had not received payment by March 9, 2004, he filed a motion requesting that the Court institute civil contempt proceedings. On March 22, 2004 the Court issued a rule to show cause why the debtor should not be held in contempt and set the matter for hearing on April 12, 2004. Nelson did not
recall Respondent appearing at the April hearing but stated Respondent did pay the sanction in May 2004. Nelson did not know if the funds came from Washington or Respondent. (Tr. 154-56, 164-68; Adm. Ex. 2).
Nelson testified that Respondent's conduct harmed Sterling Bank in that the bank had to pay attorneys fees and court costs as a result of the bankruptcy petition that was filed when a bar was in place. (Tr. 157).
Gerald Mylander, an attorney, testified he has been employed by Glenn Stearns, a Chapter 13 trustee for the Northern District of Illinois, since 1999. Mylander administers Chapter 13 bankruptcy cases and represents Stearns in those cases. (Tr. 27).
Mylander testified he represented the trustee in a Chapter 13 bankruptcy which was filed by Geraldine Campbell on December 19, 2002. Shortly after filing her petition, Campbell retained an attorney who represented her through the confirmation of the petition. Campbell's petition listed one creditor, Chase Manhattan Mortgage. (Tr. 30, 33-34; Adm. Ex. 7).
On May 23, 2003 the bankruptcy court entered an agreed order stating that if the case were dismissed, the debtor would be barred from filing another bankruptcy case for 180 days from the date of the dismissal. Mylander explained that during the 180-day period Campbell would not be able to stop any future foreclosure sale of her home. (Tr. 34, 36; Adm. Ex. 14).
On July 11, 2003 an order was entered providing that if Campbell failed to maintain her plan payments as required, she would be notified that she was in default and would have fifteen days to cure the default. If she did not cure the default, the case would be automatically dismissed without further hearing. Mylander stated that the order was unusual because typically a debtor who falls behind in payments would have an opportunity to appear before the
bankruptcy judge to seek additional time. Because Campbell had attempted to save her home in two prior bankruptcy cases, the Court was less lenient and wanted to keep the case on a shorter leash. (Tr. 37-39, 79-80).
On September 23, 2003, the trustee's office sent Campbell a notification that she was in default on her payments. Campbell was not able to cure the default within the time frame provided to her, and the case was dismissed. As a result of the dismissal, the automatic stay was lifted and the bar against future filings was effectuated. (Tr. 40-42; Adm. Ex. 7).
Mylander stated that Campbell sent payment to the trustees office approximately one week after the date it was due and filed a motion to vacate the dismissal order. Campbell failed, however, to notify her creditors of the motion. Mylander opined that if Campbell had complied with the procedural requirements, the Court probably would have granted her motion. Instead, the Court continued her motion to November 14, 2003 to allow her to present it in the proper format and provide notice to creditors. (Tr. 41-44).
On November 14, 2003, Campbell had not made progress in curing her defects and informed the court she was hiring an attorney. The Court reset the matter for December 5, 2003 and instructed Campbell to have her attorney file an appearance by December 1, 2003. On December 5, 2003, Campbell identified Respondent as her attorney but he did not appear when the motion was called. Further, Respondent had not filed an appearance or a corrected notice to vacate the dismissal. Consequently, the Court denied Campbell's motion to vacate the dismissal. (Tr. 44-45; Adm. Ex. 7).
On December 10, 2003, the Court ordered a hearing pursuant to Bankruptcy Code Section 329 which allows the Court to review an attorney's transactions with a debtor. Mylander stated that the hearing, which was set for January 9, 2004, presented Respondent with an opportunity to explain the reason for his tardiness on December 5, 2003. (Tr. 47, 76).
On December 17, 2003 Respondent filed a motion to vacate the dismissal, and set the motion for hearing on January 9, 2004. Mylander testified that Respondent's motion misstated a date, failed to state any grounds for vacating the dismissal, and did not provide notice to all the creditors. (Tr. 488-49; Adm. Ex. 7).
Mylander appeared in court on January 9, 2004 to oppose Respondent's motion, but Respondent did not appear at the scheduled time for hearing. Respondent did appear two hours late, and filed his appearance on that day. The Court continued the pending matters to January 23, 2004, at which time Campbell appeared in court but Respondent did not appear. The Court denied the motion to vacate the dismissal and, as to the section 329 hearing, ordered that Respondent return the $200 fee he received from Campbell by March 15, 2004. Respondent did not refund the $200 by the stated date. (Tr. 50-52, 68; Adm. Ex. 7).
A status hearing was scheduled for March 19, 2004. Respondent did not appear at the scheduled time but did appear when the court call was over, or nearly over, and tendered a check for $200 at that time. On March 25, 2004 the Court ordered that Respondent be prohibited from representing parties before the bankruptcy court in Will County for a period of 90 days, and requested that the trustee's office pursue civil contempt proceedings against Respondent for failing to appear and failing to return funds to Campbell. Respondent filed two motions to vacate the Court's order but, according to Mylander, both motions were technically defective. (Tr. 53-54, 70; Adm. Ex. 7).
Mylander stated that his office reported Respondent's conduct to the ARDC because of the harm Respondent caused to Campbell in not pursuing her case or returning her money. At the time Respondent became involved in the case, a possibility existed that the case could be reinstated. Instead, his conduct prevented Campbell from saving her home. Further, every time a
mortgage company's attorney has to appear in court, those fees are assessed against the debtor. (Tr. 56-60, 75).
Mylander stated his office was harmed by Respondent's conduct in that he had to spend an inordinate amount of time on additional paper work in the case. In Mylander's opinion, Respondent's failure to appear in court also harmed the bankruptcy court, the administration of justice, and the reputation of all lawyers. (Tr. 56, 59-60).
Mylander was aware that Respondent attributed his tardiness to his wife's illness, but did not know if the excuse was valid and did not believe it was relevant. He recalled one occasion when Respondent was late for a scheduled hearing and informed the judge that his wife's caretaker had not arrived on time. (Tr. 61, 63, 74, 77).
Judge Wallace Black
Judge Wallace Black, a federal bankruptcy judge for the Northern District of Illinois, testified that he presided over the bankruptcy case filed by Geraldine Smith Campbell in December 2002. Regarding a December 10, 2003 order setting the matter for a hearing on January 9, 2004, Judge Black stated that Section 329 of the Bankruptcy Code allows a judge to order an attorney to appear for an inquiry concerning the reasonableness of the attorney's compensation. Judge Black stated he had entered only a half dozen such orders in his five years as a bankruptcy judge. He entered the order in Campbell's case because she reported at a hearing on December 5 that she had paid $200 to Respondent and he did not appear in court on that date. Judge Black acknowledged he had no personal knowledge that Campbell informed Respondent of the December 5 hearing, but, based on his experience with debtors, he believed that Respondent had been told that he needed to appear on that date. (Tr. 85-88, 99).
Judge Black stated that, although the hearing on January 9, 2004 was set for 11:00 a.m., Respondent did not arrive until nearly 1:30 p.m., at which time the debtor had already left. The
case was recalled and continued to January 23, 2004. Judge Black stated that, had Respondent appeared on time, he would have had an opportunity to explain why he was not in court on December 5, 2003. (Tr. 89-90, 106, 111).
When Respondent did not appear on January 23, 2004, Judge Black denied Campbell's pending motion to vacate the dismissal of her bankruptcy case. Judge Black stated that he typically gives debtors multiple chances to pursue their case and he would have been willing to consider the motion if Respondent had appeared. With regard to the section 329 hearing, he ordered that Respondent refund $200 to Smith Campbell by making payment to the trustee on or before March 15, 2004. Judge Black set a status hearing for March 19, 2004 to make sure the money had been paid. Notice of the order was mailed to Respondent. (Tr. 90-93, 107, 111-12; Adm. Ex. 7)
Respondent did not refund any money by the required date and arrived late for the status hearing on March 19, 2004. After passing the case when it was first called, Judge Black re-called it and, at that time, Respondent made payment of $200 to the trustee. (Tr. 93, 95).
As to Respondent's tardiness to court, Judge Black recalled that, at some point, Respondent referred to his wife's illness and problems getting caregivers to appear on time. Judge Black believed Respondent's personal circumstances mitigated his lateness, but did not excuse it. (Tr. 95, 100, 107-08, 113).
On March 25, 2004 Judge Black entered an order suspending Respondent from representing anyone in bankruptcy court in Joliet for 90 days. Judge Black stated he had never barred any other attorney for 90 days for being tardy to court, but Respondent was chronically late and unprepared and his conduct was very detrimental to Campbell's case. Further, Judge Black wanted to get Respondent's attention for the sake of people he might be representing in the future. Judge Black acknowledged he did not issue a rule to show cause which would have
allowed Respondent to explain in detail why he was late or unprepared, but stated that the bankruptcy rules do not require a rule to show cause. Judge Black believed the December 10 order, which stated that Respondent was to appear "to examine the above-named debtor's transactions with you as an attorney" satisfied the notice requirements of due process. Judge Black denied Respondent's subsequent motions to vacate the March 25, 2004 order. (Tr. 96-98, 101-14; Adm. Ex. 7).
Judge Black stated that Respondent's tardiness impacted the administration of justice and the bankruptcy court because it caused a delay in the progress of the call. (Tr. 98).
Ronald Manning, currently retired, testified that he was a Deputy Marshall of the U.S. Bankruptcy Court until 2002. In August 2004 Manning retained Respondent to represent him in connection with a billing problem Manning was having with the gas company. Manning met with Respondent for close to an hour, paid him $200, and gave him information and documents regarding his building. Manning understood that Respondent would send a letter to the gas company. (Tr. 189-93, 197-99, 203-04).
Over the next several months Manning attempted to contact Respondent but Respondent did not respond. Manning stated that after he filed a complaint with the ARDC, he was contacted by Respondent. Manning eventually resolved his problem by calling the gas company himself. (Tr. 194-95, 200).
Manning testified that in September 2005 he received a refund of $200 from Respondent. He had no knowledge as to whether Respondent ever talked to the gas company or did any work on the matter. (Tr. 196, 199-200).
Respondent's client file
Respondent's client file for Ronald Manning, which was introduced into evidence, contained notes of his meeting with Manning on August 31, 2004 regarding Manning's gas bill. Respondent's time records for the next two months indicate that he called Manning, received and reviewed Manning's gas bill, closing statement, and lease agreement with a tenant, and spoke to representatives of Nicor on Manning's behalf. In correspondence to the ARDC regarding Manning's matter, Respondent stated that he contacted representatives of Nicor, believed the matter was resolved, and was not aware of Manning's telephone calls that went unanswered. (Adm. Ex. 9).
Shirley Sartin-Randle testified she retained Respondent, who is her husband's cousin, in October 2003 to assist her with obtaining legal guardianship over her father. She met with Respondent, paid him $300, and gave him a letter from Banco Popular stating that her father's house was in foreclosure. Sartin-Randle stated that Respondent agreed to help with the guardianship and the foreclosure. She received a receipt for the $300 that stated "For Foreclosure." (Tr. 206-09, 227-28; Adm. Ex. 11).
After her initial meeting with Respondent, Sartin-Randle attempted to reach him numerous times but was not able to talk to him. She returned to his office on January 12, 2004, at which time Respondent told her he was working on the foreclosure matter and not to worry about the guardianship matter. When Respondent asked for another $200, Sartin-Randle gave him that amount. Thereafter Sartin-Randle left numerous messages for Respondent but was not able to reach him. (Tr. 210-13; Adm. Ex. 10).
On May 14, 2004 Sartin-Randle went to Respondent's office and, at his request, gave him $1,500 as the final payment for the foreclosure and guardianship. When Sartin-Randle inquired about the status of her matters, Respondent told her he would take care of it and not to worry about it. (Tr. 213-14, 236; Adm. Ex. 10).
After the May 14 meeting, Sartin-Randle called Respondent at his office and left numerous messages with his secretary but Respondent did not return her calls. In September 2004, she began keeping a log of her phone calls. Sartin-Randle finally spoke to Respondent on November 29, 2004 and informed him that Catholic Charities had taken over her father's house and placed him in a nursing home. She testified she had initially retained Respondent to avoid that outcome. (Tr. 215, 219-22. 230-31).
During Sartin-Randle's conversation with Respondent, she advised him she wanted a refund of the money she had paid to him. Respondent agreed to return $1,000 but, despite several more conversations and promises to return the money, he did not do so immediately. Sartin-Randle acknowledged that most of her telephone calls to Respondent occurred after she asked for a refund. By the time she sent a letter to the ARDC in January 2005, she had received only $400 from Respondent. On July 3, 2006, she received the remainder of the $2,000 she had paid to Respondent. (Tr. 222-25, 231)
Sartin-Randle testified her father was harmed by Respondent's conduct because he had to go into a nursing home and his property was taken through foreclosure. As a certified nurse Sartin-Randle felt she could have taken care of her father, but she acknowledged she never asked Catholic Charities to arrange to have her father placed in her home. She stated that, because of Respondent's conduct, she does not trust the legal system and is afraid to hire a lawyer. (Tr. 226, 229, 233).
Respondent's client file
Respondent's client file contains notations of his initial meeting with Sartin-Randle on October 7, 2003, as well as a copy of his appearance in the foreclosure matter and a motion for disaffirmance of sale which he apparently drafted. The file does not indicate whether the motion was ever presented, nor does it reflect any other filings with respect to the foreclosure or guardianship matters.
Evidence Relating to Mitigation and Aggravation
Dr. David E. Hartman
Dr. David E. Hartman, who testified as an expert in the fields of clinical psychology and forensic and medical neuropsychology, stated that he had been retained by Dr. Stafford Henry and the ARDC to conduct a neuropsychological evaluation of Respondent to determine whether he was capable of practicing as an attorney. On November 6, 2006, Dr. Hartman interviewed Respondent and administered a series of tests to assess Respondent's behavior as well as his cognitive and emotional functioning. He also reviewed Respondent's medical diagnostic results and overall health picture because those results affect various kinds of brain function. (Tr. 248-49, 254, 261-62; Adm. Ex. 17).
Dr. Hartman stated that Respondent had been diagnosed with high blood pressure and diabetes, both of which can impair cognitive function. He was concerned that Respondent viewed these conditions as minor and temporary, and had not filled prescriptions for his high blood pressure. When Dr. Hartman took Respondent's blood pressure in the morning and afternoon of November 6, the readings were clearly in the hypertensive range. Because people with high blood pressure and diabetes are at increased risk for cognitive impairment, stroke, or heart attack. Dr. Hartman advised Respondent to fill his prescriptions and monitor his blood pressure. (Tr. 263-65).
Dr. Hartman diagnosed Respondent as having Cognitive Disorder Not Otherwise Specified: executive function and memory impairment. He suggested a rule-out diagnosis of a mild vascular dementia, which is a global and progressive impairment of cognitive function based on damage to the blood vessels in the brain related to hypertension and diabetes. (Tr. 265-66; Adm. Ex. 18).
Dr. Hartman explained that his diagnosis was manifested by Respondent's impairment on tests of problem-solving and strategizing. Further, he observed that Respondent had a number of organizational difficulties during their interview. For example, Respondent arrived late because his cell phone service had been shut off and he had to have it restored; he took telephone calls during the interview relating to a real estate closing that was scheduled that same afternoon; and he was unusually slow in taking his tests and did not always follow Dr. Hartman's directions. (Tr. 267-71).
With respect to performance on the neuropsychological tests, Dr. Hartman testified that Respondent's scores were in the average range on the tests for overall intelligence and basic attention, but he was borderline impaired on the test that measured attention with a distraction component. On tests measuring organizational ability, strategizing, and problem-solving, Respondent was in the impaired range, which means he performed worse than about ninty-five percent of the normal population. Since impairments will most likely have some consequence to real world behavior, Dr. Hartman predicted that Respondent would be experiencing attention and organizational difficulties in other aspects of his life. (Tr. 272-78).
Dr. Hartman found that Respondent's visual senses were normal, but he had a noticeable sensory defect in his right ear. As to various memory functions, Respondent's performance ranged from low average to impaired. Respondent also showed impairment in his visuo-spatial abilities, which would translate in the real world to having problems putting things together
conceptually and practically. Dr. Hartman expressed concern that someone with Respondent's test results could function in a profession such as law, which requires flexibility, problem-solving, and a high level of memory and organization. He stated that his concerns were confirmed by Respondent's behavior during the interview process. Dr. Hartman acknowledged that Respondent could perform some legal-type tasks but noted that he would require fairly strict and continuous supervision. (Tr. 279-85, 302-03).
Dr. Hartman stated that, after he formed his opinions, he read a report in which Dr. Stafford Henry diagnosed Respondent as suffering from dementia. Dr. Hartman explained that cognitive disorder is the more conservative diagnosis and, unlike Dr. Henry, he did not have access to Respondent's complete record. As to Dr. Henry's diagnosis of depression, Dr. Hartman stated he did not see any evidence of depression but had no reason to doubt Dr. Henry's diagnosis. Overall, he felt his opinions were consistent with Dr. Henry's opinions. (Tr. 293-95).
As to the cause of Respondent's impairment, Dr. Hartman noted that diabetes and hypertension are definitive risk factors for early dementia, especially among African-Americans. An MRI report also indicated vascular dementia. Dr. Hartman allowed for the possibility that Respondent may have been depressed after his wife died, but did not see any evidence of depression or grief reaction at the time of the evaluation. (Tr. 286-87, 297).
Dr. Hartman stated that either cognitive disorder or vascular dementia would materially interfere with Respondent's ability to practice law. He advised Respondent to see a doctor about his blood pressure, and to seek care from a neurologist and a cardiologist, but noted that Respondent's history of compliance with medical treatment has not been good. With respect to a prognosis, Dr. Hartman did not believe that Respondent's deficits were reversible, but stated that such a determination could be made only with retesting after six months of full compliance with medication and aggressive control of blood pressure and blood sugar. According to Dr. Hartman,
Respondent would have to be very detailed and conscientious in terms of his own health care and, even then, the likelihood of improvement would not be high. (Tr. 288-91, 297-98).
Dr. Hartman acknowledged, on cross-examination, that he has no information concerning Respondent's current health condition or whether he has been taking any medication for his diabetes. (Tr. 299-300).
Dr. Stafford Henry
Dr. Stafford Henry, a physician board certified in general psychiatry, addiction psychiatry and forensic psychiatry, testified he was retained by the Administrator to conduct a psychiatric evaluation and a fitness for duty evaluation of Respondent. He met with Respondent on September 13, 2006 and January 3, 2007, and reviewed collateral data including Respondent's deposition, the Administrator's complaint, and reports from Dr. Hartman and Dr. Pohlman. He also interviewed one of Respondent's colleagues but Respondent did not allow him to speak to any family members. (Tr. 306, 313-14, 319; Adm. Ex. 19).
As to his first meeting with Respondent, Dr. Henry recalled that Respondent had a rambling speech style, was admittedly forgetful, and took telephone calls during the interview. Those facts, and Dr. Henry's clinical impression that Respondent was possibly suffering from some element of cognitive deficit, led him to refer Respondent to Dr. Hartman for a neurological evaluation. Dr. Henry also referred Respondent to a medical doctor for evaluation of his physical health. (Tr. 314-17).
Dr. Henry diagnosed Respondent as suffering from dementia and major depressive disorder. He believed that further study was required to rule out an additional diagnosis of obstructive sleep apnea. Dr. Henry described dementia as being characterized by memory loss and an impairment of executive functioning. He noted that Respondent admitted being forgetful, engaged in confabulation, and displayed a level of disorganization. In addition to his own
observations, Dr. Henry relied on the reports of Dr. Hartman and Dr. Pohlman in forming his diagnosis of dementia. (Tr. 321-25).
With respect to the diagnosis of major depressive disorder, Dr. Henry believed that condition was precipitated by the death of Respondent's wife and mother in 2005, and by financial difficulties. Respondent's depression was evidenced by his pervasive sense of sadness as well as classic symptoms such as carbohydrate craving, sleep disturbance, thoughts of suicide, and crying spells. Dr. Henry noted that hypertension and diabetes can also manifest as depressive symptoms. He believed that Respondent had only minimal insight into his depression. Although Dr. Henry felt that Respondent's depression was somewhat improved by their second meeting in January 2007, the dementia symptoms were unchanged. (Tr. 327-32).
Dr. Henry opined that some association existed between Respondent's symptoms of dementia and the misconduct alleged in Count I of the Administrator's complaint because the circumstances surrounding the misconduct reflected a general disorganization, a lack of appreciation for due diligence, and faulty reasoning. Dr. Henry felt that no causal connection existed between the psychiatric diagnosis and the conduct alleged in Counts II, IV and V because Respondent cited reasons for his behavior that were unrelated to psychiatric issues. As to whether any mental health issues interfere with Respondent's ability to practice law and adhere to the Rules of Professional Conduct, Dr. Henry felt that Respondent's dementia, specifically his memory deficit and his impairment in organization and executive functioning skills, precludes him from consistently adhering to the rules. (Tr. 333-37, 341).
Dr. Henry recommended that Respondent seek care from a primary care physician to manage his diabetes and hypertension; undergo an MRI; seek treatment from a psychiatrist and psychologist; take part in a sleep study; and, after completion of the foregoing, repeat a neuropsychological and psychiatric evaluation. Dr. Henry pointed out that, even if Respondent's
depression, diabetes and hypertension are corrected, the dementia may not necessarily be reversed and therefore a reassessment should take place to determine if he could adhere to the rules of the legal profession. The reassessment can only occur after a period of complete compliance and stabilization. Dr. Henry was aware that Respondent underwent an MRI in May 2007 and that he was on medication for his hypertension and diabetes at the time of their second interview. He acknowledged that he does not know Respondent's present condition concerning his depression, blood pressure diabetes, or dementia. (Tr. 343-44, 349-50, 354).
Respondent testified that he has been taking medication for pre-type 1 diabetes and pre-hypertension once a day since November 2006. He has received treatment from Cook County Hospital, the Fantus Clinic and a medical doctor who specializes in podiatry. He has also had an MRI and is seeing a psychiatrist twice a month. Respondent stated that he is willing to undergo a test for sleep apnea although his psychiatrist advised him that he no longer has the symptoms of that condition. He expressed his willingness to continue with the treatment, to seek any other treatment that is recommended by either his psychiatrist or his physician, and to be re-evaluated after any period of set forth by the ARDC. (Tr. 360-63).
Respondent stated that, at his counsel's suggestion, he is using form letters to notify clients of information such as court dates and receipt of documents from opposing parties. (Tr. 364; Resp. Ex 1).
On November 26, 2002 the Illinois Supreme Court approved a Report and Recommendation of the Hearing Board which found that, as to two separate client matters, Respondent converted settlement funds totaling approximately $3,000. As to another matter, Respondent failed to pursue his client's case, failed to respond to the client's requests for
information, and made false representations to the client and the court regarding actions he had taken in the case. The Court suspended Respondent from the practice of law for twenty-four months, with the last twenty-two months of the suspension stayed by probationary conditions which included restitution, a class in professional ethics, supervision by another attorney, and compliance with the professional rules.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill.2d 477, 577 N.E.2d 762 (1991).
The factual allegations of Count I regarding the Karen Washington bankruptcy were largely admitted by Respondent. He filed an appearance on Washington's behalf in April 2003 and represented her in May 2003 when the Bankruptcy Court dismissed her petition and imposed a 180-day bar to refiling. Respondent did not dispute his knowledge of that order and, in fact, his filing of a motion to vacate the order conclusively establishes that he was apprised of the Court's action.
Several days before the expiration of the bar on refiling, and on the same day that a foreclosure sale was scheduled for Washington's property, Respondent filed another bankruptcy petition on Washington's behalf. By so doing, he violated the Court's May 2003 order and thwarted the process by which creditors are allowed to pursue funds owed to them. The timing of the filing clearly demonstrates that Respondent's intent was to forestall the foreclosure sale,
and therefore his action was taken in abrogation of the bankruptcy rule which requires that petitions or other pleadings not be filed for purposes of harassment or unnecessary delay.
Compounding Respondent's improper filing of the bankruptcy petition, the evidence shows that he failed to appear in court for hearing of Sterling Bank's motion to dismiss the petition, even though he had noticed his own motion for a continuance for the same date. The Court granted the bank's motion to dismiss and ordered Washington to pay sanctions to Sterling Bank for costs incurred due to the improper petition. When no payment was made by March 2004, Sterling Bank filed a motion for civil contempt against Washington and a rule to show cause was issued against her. In May 2004 Respondent paid the sanction to Sterling Bank.
By reason of the foregoing, we find that the Administrator proved by clear and convincing evidence that RESPONDENT:
filed a suit or took other action on behalf of a client when he knew or reasonably should have known that such action would serve merely to harass or maliciously injure another in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct;
advanced a claim the lawyer knows is unwarranted under existing law in violation of Rule 1.2(f)(2);
failed to provide competent representation to a client in violation of Rule 1.1;
initiated a proceeding where there is no basis for doing so that is not frivolous in violation of Rule 3.1;
engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5);
engaged 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.
Count II involved Respondent's actions with respect to the bankruptcy of Geraldine Smith Campbell. He agreed to represent Campbell in December 2003.
The evidence established that on January 9, 2003, Respondent arrived late for a hearing scheduled by the Court to examine his transactions with Campbell. Thereafter, he failed to appear at the rescheduled hearing on January 23, 2003, failed to refund a fee to his client by the date ordered by the Court, and arrived late for another hearing on March 19, 2004. As a result of Respondent's chronic tardiness and his failure to abide by the Court's order, he was suspended from practicing in the Bankruptcy Court for the Northern District of Illinois for 90 days.
The foregoing facts were proved by clear and convincing evidence and we received no testimony or documents to the contrary. Therefore we find that, with respect to Campbell's bankruptcy, Respondent engaged in the following misconduct:
failure to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3;
conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5);
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.
Count IV involved Respondent's representation of Ronald Manning in connection with a dispute over gas bills for an apartment building owned by Manning. The Administrator charged that Respondent failed to act with reasonable diligence, failed to promptly respond to requests for information, engaged in conduct that is prejudicial to the administration of justice, and engaged in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute.
Manning testified that he retained Respondent in August 2004, paid him $200, and met with him for nearly one hour. Thereafter, according to Manning, Respondent failed to pursue his matter and failed to return telephone calls. In December 2004 Manning complained to the
ARDC that Respondent had taken no action in the case. Sometime later Manning apparently resolved his dispute on his own and in September 2005, he received a refund of $200 from Respondent.
Respondent did not testify concerning his representation of Manning, but his client file was admitted into evidence. Time records in the file indicate that after meeting with Manning for two hours in August 2004, Respondent pursued the gas bill dispute over the course of the next two months by requesting and reviewing documents and contacting representatives of Nicor gas company. The documents in Respondent's file included Manning's gas bill, a real estate closing statement, and a lease. Respondent's records also reflect at least one telephone call to Manning during that period. In correspondence to the ARDC, Respondent stated that he had made inquiries to the gas company, believed the matter was resolved, and was not aware of any unanswered telephone calls.
Having reviewed the conflicting evidence, we conclude that the Administrator did not meet her burden of proof with respect to Count IV. While Manning was not aware that any action was taken by Respondent, the notes in Respondent's client file indicate that he performed some services during the two months after he was retained. The fact that his efforts did not achieve the desired result does not prove a lack of diligence on his part. Respondent's notes also indicate that he had some communication, albeit minimal, with Manning during that time period. Accordingly, we find that the misconduct charged in Count IV was not proved by clear and convincing evidence.
Count V involved Respondent's representation of Shirley Sartin-Randle, who testified that she retained Respondent in October 2003 and paid him $2,000 in connection with her attempt to seek guardianship over her father and prevent a foreclosure of his property. According
to Sartin-Randle, Respondent did not pursue the matters for which he was retained and did not respond to her telephone calls. She testified that ultimately her father had to go into a nursing home and his property was taken through foreclosure, a result that she had hired Respondent to prevent. After repeated requests for the refund of the fees she paid, she received $400 in January 2005 but did not receive the remainder of the refund until July 2006.
Sartin-Randle's recitation of events was uncontradicted. Respondent's client file contained a motion which he apparently drafted on her behalf, but we did not receive any evidence regarding the filing or outcome of that motion. The evidence did not establish that he made any efforts to pursue her case or respond to her telephone calls between January and September 2004. Accordingly, we find that the Administrator proved the following misconduct by clear and convincing evidence:
failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3;
failure to promptly respond to a client's reasonable requests for information about the status of her legal matter in violation of Rule 1.4(a);
failure to promptly refund any part of a fee paid in advance that has not been earned in violation of Rule 1.16(e);
conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and
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.
Having concluded that Respondent engaged in wrongdoing, we must determine the appropriate discipline warranted by the misconduct. In determining the proper sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the
administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill.2d 515, 645 N.E.2d 906, 912 (1994).
We also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill.2d 380, 583 N.E.2d 526, 535 (1991). In mitigation we note that Respondent cooperated in the proceedings. In re Clayter, 78 Ill.2d 276, 399 N.E.2d 1318 (1980).
Respondent urged us to consider his medical condition as a mitigating factor. He argued that he suffered from depression brought about by the deaths of his mother and his wife, and that the depression caused him to ignore other medical problems. We agree that mental disorders can be considered in mitigation where a causal connection is established between the disorder and the misconduct. See In re Crisel, 10 Ill.2d 332, 461 N.E.2d 994 (1984) (Court considered attorney's psychological illness as a mitigating factor, noting that "where there is evidence linking the impairment to the misconduct, the impairment will be considered in mitigation, but will not act as a bar to discipline"). See also In re Hopper, 85 Ill.2d 313, 423 N.E.2d 900 (1981) (depressive neurosis considered as mitigating factor). In the present case Dr. Henry testified that there was an "association" between Respondent's dementia and his misconduct with respect to the Washington bankruptcy, but found no causal connection between his mental condition and the remainder of the misconduct. Since Respondent's mental disorder played, at most, a minor role in his overall wrongdoing, we give only minimal weight to this factor in determining the appropriate discipline.
In aggravation, we consider the harm or risk of harm resulting from Respondent's actions. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care). In this case
Respondent's actions with respect to the Washington bankruptcy caused financial harm to Washington's creditor, Sterling Bank, and impeded the judicial process by causing an unnecessary delay in the sale of Washington's property. Respondent also placed Washington at risk for having to pay sanctions attributable to his misconduct. Similarly, with respect to the Campbell bankruptcy, Respondent's failure to appear in court caused harm to his client, who was unable to have her bankruptcy case reinstated, as well as to the trustee and the judicial process. As for the Sartin-Randle matter, the client testified that Respondent failed to pursue the matters for which he was hired and, as a result, her father lost his property and was placed in a nursing home.
Failure to make prompt restitution has been viewed as an aggravating circumstance. See In re Uhler II, 126 Ill.2d 532, 535 N.E.2d 825 (1989). Although we heard evidence that Respondent ultimately refunded the fees he received from Sartin-Randle, the bulk of the repayment did not occur for more than one year after her request and was not accomplished until she complained to the ARDC.
We also consider in aggravation the fact that Respondent did not engage in an isolated instance of misconduct. Rather, his actions reflect a pattern of misdeeds involving several different client matters. See In re Lewis, 138 Ill.2d 310, 562 N.E.2d 198 (1990); In re Smith, 168 Ill.2d 269, 659 N.E.2d 896 (1995).
Finally, prior discipline has been considered to be a significant aggravating factor in determining the proper sanction. See In re Blank, 145 Ill.2d 534, 585 N.E.2d 105 (1991); In re Guilford, 1145 Ill.2d 495, 505 N.E.2d 342, 345 (1987). Respondent was disciplined in November 2002 for engaging in misconduct which included, as in the present case, neglect and failure to respond to client inquiries. He was suspended for twenty-four months, with the final twenty-two months stayed by conditions of probation which included a class in professional
ethics and supervision by another attorney. Notwithstanding the imposition of those conditions, Respondent engaged in subsequent misconduct and, in fact, repeated the same type of behavior that the probationary conditions were designed to address. Equally distressing is the fact that Respondent's current misconduct occurred when he was still on probation for his prior misconduct. Because the impact of the previous discipline and the imposition of probation conditions was obviously insufficient to prevent the current misconduct, we give this factor significant consideration.
We turn now to a determination of discipline. Respondent filed a bankruptcy petition when he knew or should have known the filing was barred by a court order, engaged in two instances of neglect, failed to communicate with a client, and failed to promptly refund unearned fees. The Administrator has suggested that an appropriate sanction would be a suspension of one year until further order of court.
In In re Samuels, 126 Ill.2d 509, 535 N.E.2d 808, 816 (1989) the Court stated that "neglect of a legal matter is in itself sufficient ground for suspension" and "the length of the suspension has depended on the aggravating and mitigating factors." In that case the attorney was suspended for one year for neglecting the cases of four clients. In aggravation the attorney had made misrepresentations to his clients concerning the status of their cases and had failed to cooperate in the disciplinary proceedings. Similarly, in In re Taylor, 66 Ill.2d 567, 363 N.E.2d 845 (1977) the attorney was suspended for one year for neglecting the cases of three clients. The pattern of consistent neglect was an important factor in the Court's decision.
The Administrator directed our attention to In re Nalick, 02 SH 63, M.R. 19294 (May 17, 2004). In that case the attorney, who had been previously disciplined, was suspended for one year for neglecting a case, providing information in a bankruptcy petition and motion that he knew or should have known was false, and knowingly misleading a bankruptcy trustee at a
creditor's meeting. The combination of misconduct, aggravated by prior discipline, bears enough similarity to the present case to provide reliable guidance for our recommendation.
Given the misconduct which occurred in this case, and in light of the serious aggravating circumstances and relatively minor mitigating factors, we believe that a one-year suspension is warranted. We also agree with the Administrator that the suspension should be until further order of court. As we stated previously, it is a matter of great concern that Respondent's previous disciplinary record not only did not prevent a recurrence of similar misconduct, but did not deter wrongdoing at a time when he was on probation and should have had a heightened sense of his ethical obligations. In In re Timpone, 208 Ill.2d 371, 804 N.E.2d 560, 569 (2004) the Court imposed a suspension until further order of court where an attorney's recidivism demonstrated that he had not grasped the importance of his ethical obligations. See also In re Levin, 101 Ill.2d 535, 463 N.E.2d 715 (1984).
Respondent's diagnosed mental condition is also a concern which warrants a suspension until further order of court. See In re Guilford, 115 Ill.2d 495, 505 N.E.2d 342 (1987) (Court cited mental illness and addiction as situations which warrant a suspension until further order); In re Cole, 95 CH 749, M.R. 14221 (January 29, 1998) (Court approved Hearing Board report which found that damage to attorney's cognitive ability to function presented a "classic situation" in which a suspension until further order was justified). Although Respondent's misconduct in this case was, in large part, attributed to circumstances other than his diagnosed conditions, both Dr. Henry and Dr. Hartman opined that dementia will interfere with an attorney's ability to practice law in accordance with the rules of the legal profession. We note that Respondent testified that he is on medication and seeking treatment for both his psychological and physical problems, yet he offered no independent expert testimony to confirm those claims. Based on the evidence we received, we would not feel comfortable returning Respondent to the practice of law
without a convincing demonstration that his conditions have been successfully treated and his mental acuity is such that he can adhere to the rules of professional conduct. To do otherwise, we believe, would shortchange our commitment to protect the public and safeguard the integrity of the profession.
Having considered Respondent's misconduct, his prior discipline and other aggravating circumstances, the lack of compelling mitigating factors, and the relevant caselaw, we recommend that Respondent William Earl Brooks be suspended from the practice of law for a period of one year and until further order of court.
Date Entered: September 4, 2007
|Lon M. Richey, Chair, with Michelle M. Montgomery and Katheryn H. Ward concurring|
1 Rule 9011(b) of the Federal Rules of Bankruptcy Procedure provides that, by presenting a petition to the court, an attorney certifies that "(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. . ."