Filed February 21, 2008
In re David Michael Levin
Commission No. 05 CH 71
Synopsis of Review Board Report and Recommendation
Levin was charged with misconduct in a five-count complaint that included conversion and failing to keep a client's property separate from his own property, (Count I), using or revealing a confidence or secret of a client, (Count III); charging an unreasonable fee, advancing a claim or defense he knew was unwarranted under existing law, and bringing a proceeding or asserting an issue where there was no basis for doing so that was not frivolous, (Count IV); and threatening to present professional disciplinary actions to obtain an advantage in a civil matter, (Count V). Counts I, II and IV charged in addition that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, and all five counts claimed that he engaged in conduct prejudicial to the administration of justice and engaged in conduct which tended to defeat the administration of justice or to bring the courts or legal profession into disrepute. Respondent admitted some of the factual allegations of the complaint, and denied some of them. He denied all of the allegations of misconduct.
The Hearing Board found that the Administrator had presented clear and convincing evidence that Respondent commingled funds and engaged in conduct prejudicial to the administration of justice in Count I. He engaged in conduct prejudicial to the administration of justice and conduct that tended to defeat the administration of justice or to bring the courts or legal profession into disrepute in Count II, and committed all of the misconduct charged in Count III. The Hearing Board found that none of the misconduct of Count IV, and all of the misconduct of Count V, was sufficiently proved. It recommended that Respondent be suspended from the practice of law for eighteen months.
The case was before the Review Board on the exceptions of the Administrator, who contested the Hearing Board's findings that there was insufficient evidence that Respondent's conduct was dishonest in Count II and that he charged an unreasonable fee in Count IV, and urged the Review Board to recommend that Respondent's suspension continue until further order of court. Respondent objected to all of the Hearing Board's findings of misconduct and argued that the complaint should be dismissed, or if not, that he should be censured.
The majority of the Review Board affirmed the findings of the Hearing Board, except that it concluded Respondent did not engage in conduct prejudicial to the administration of justice in Count I and that his conduct was sufficiently reckless that it was dishonest in Count II. It recommended that Respondent be suspended for eighteen months. One panel member dissented from the majority's finding that there was sufficient proof of dishonesty in Count II, and would have upheld the Hearing Board's finding.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
DAVID MICHAEL LEVIN,
Commission No. 05 CH 71
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter arises from a five-count complaint filed by the Administrator-Appellant against Respondent-Appellee, David Michael Levin. Count I charged Respondent with conversion and failing to keep a client's property separate from his own property, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct. Count III alleged that he used or revealed a confidence or secret of a client, in violation of Rule 1.6(a), while according to Count IV, Respondent charged an unreasonable fee, in violation of Rule 1.5(a); advanced a claim or defense he knew was unwarranted under existing law, in violation of Rule 1.2(f)(2); and brought a proceeding or asserted an issue where there was no basis for doing so that was not frivolous, in violation of rule 3.1. Count V claimed that Respondent threatened to present professional disciplinary actions to obtain an advantage in a civil matter, in violation of Rule 1.2(e). Additionally, Counts I, II and IV charged that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4). All five counts claimed that Respondent engaged conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), and in conduct which tended to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.
Respondent admitted some of the factual allegations of the complaint, and denied some of them. He denied all of the allegations of misconduct.
The Hearing Board found that the Administrator had presented clear and convincing evidence that Respondent commingled funds and engaged in conduct prejudicial to the administration of justice in Count I. He engaged in conduct prejudicial to the administration of justice and conduct that tended to defeat the administration of justice or to bring the courts or legal profession into disrepute in Count II, and committed all of the misconduct charged in Count III. The Hearing Board found that none of the misconduct of Count IV, and all of the misconduct of Count V, had been sufficiently proved.
Respondent presented no mitigating evidence. The Hearing Board considered in aggravation his lack of remorse and failure to recognize the seriousness of his misconduct, and fact that he had been disciplined on two previous occasions. Rejecting the Administrator's suggestion of a suspension of two years and until further order of court, the Hearing Board recommended that Respondent be suspended from the practice of law for eighteen months.
The case is now before the Review Board on exceptions filed by the Administrator, who contests the Hearing Board's findings that there was insufficient proof that Respondent's conduct was dishonest in Count II and that he charged an unreasonable fee in Count IV, and urges us to recommend that Respondent be suspended for eighteen months and until further order of court. Respondent objects to the Hearing Board's finding that he commingled property in Count I, that he revealed client confidences in Count III, that he threatened disciplinary action against an attorney to gain advantage in a case in Count V, that he engaged in conduct prejudicial to the administration of justice in Counts I, II, III and V and in conduct which tended to defeat the administration of justice or to bring the courts or legal
profession into disrepute in Counts II, III and V. He argues that the complaint should be dismissed, or if not, that the Review Board should recommend that he be censured.
The facts are briefly summarized below.
Counts I and II
In or about January 2004, Eileen Foley consulted Respondent concerning damage to her property that had been caused by excavation at the Beverly Arts Center next door. Respondent agreed to review the documents Foley had, and determine whether he could help her. If he took the case, Foley would pay him for his review. If not, she would owe him nothing.
On February 19, 2004, Respondent wrote Foley, agreeing to represent her in connection with "any and all claims for damage to [her] residence and personalty as a result of and/or related to the construction of the Beverly Arts Center." The letter provided that compensation would be as follows:
(c) All expenses shall be borne by Eileen Foley and upon execution of this agreement Eileen Foley shall deposit with this office the sum of $500.00 as an advance against monies due this office for legal services and for payment of costs. An accounting will be made from time to time of all expenses incurred, and prompt payment shall be arranged for expenses advanced by this office.
(Emphasis added.) Additionally, Foley would pay Respondent $100 per hour, up to a maximum of $5,000, which would be offset against the thirty percent Respondent would receive from any recovery.
Foley signed the agreement the following day, and gave Respondent a check for $500, according to its terms. Foley's understanding was that the $500 would be used for whatever Respondent needed it for: "Court costs or research or --." She gave it to him to start the case and did not know if it would be used for Respondent's fees or court costs. She knew that Respondent had done "a fair amount of work" at that point.
Respondent cashed the check and used the money to pay personal and business expenses. According to Respondent, at the time that he cashed the check, he was owed approximately $1,900 for his review of Foley's documents.
Between February 20, 2004 and May 20, 2005, Foley wrote Respondent an additional ten checks totaling $3,405. Respondent negotiated eight of them, totaling $2,350, for cash, and used the proceeds to pay his own business and personal expenses.
On July 22, 2004, Respondent deposited the ninth check, in the amount of $600, into his account at North Bank entitled "David M. Levin, Ltd./IOLTA," and paid business and personal expenses until the account was overdrawn by $24.10. On August 19, 2004, he deposited Foley's check in the amount of $455 into the IOLTA account and received $55 from it in cash. He wrote checks to pay business and personal expenses against the balance until the account was overdrawn by $305.93. Respondent testified that although he had not changed the name of the account, he did not use the account for client funds.
On September 22, 2004, Respondent filed suit on Foley's behalf, alleging negligence and trespass. Foley v. Walsh Construction Company of Illinois, John P. Hopkins Sewer and Water Co. and Delta Demolition, Inc., Circuit Court of Cook County case number 04 L 10720. Respondent paid the $501 filing fee with a check drawn on the IOLTA account. At the time, the balance of the account was $10.03. North Bank refused to honor the check when it was presented for payment, due to the lack of funds in the account. Respondent made a payment of $100 toward the filing fees to the Clerk's office on December 13, 2004. As of April 18, 2005 the balance, and the $25 returned check charge, remained unpaid.
Foley's case eventually settled for $20,000. Although she did not know at that time that her filing fees were unpaid, she was completely satisfied with the representation she received from Respondent.
On July 17, 2002, a judgment of foreclosure was entered against Pamela Wyatt Scott.1 Between July 2002 and May 2004, Scott filed a series of bankruptcy petitions in an effort to stave off the sale of her home.
In May 2004, Scott consulted Respondent. Her last bankruptcy petition had been dismissed, and she was precluded from filing another for a period of time. The judicial sale of the property had already happened, and as there was no longer a stay in place, the sale was about to be finalized. Scott wanted Respondent to file a motion to vacate the judgment of foreclosure.
On May 19, 2004, Respondent sent Scott a letter, setting forth the conditions for compensation and retention. Scott would pay all expenses, plus legal fees of $100 per hour. Respondent would receive 25% of any recovery, less the amount of legal fees already paid. Upon execution of their agreement, Scott would pay Respondent the sum of $1,500, "as an advance against monies due this office for legal services and for payment of costs." Scott executed the agreement on May 22, 2004.
According to Scott, she retained Respondent to vacate the judgment of foreclosure only. From the beginning, according to Respondent, the strategy was to vacate the judgment, negotiate the reduction of the amount owed, which at that time was approximately $209,000, and obtain a new mortgage for the reduced amount. Respondent apparently received a settlement offer of $175,000 from the lender.
On November 17, 2004, Respondent filed an amended motion to vacate the judgment. A briefing schedule was set, which allowed him until November 24, 2004 to file a memorandum in support of his motion. However, his relationship with Scott had been "unraveling." According to Respondent, it was because he discovered that neither the value of the property, nor Scott's credit score was as high as she had indicated.
On November 24, 2004, Scott sent the judge presiding over her case a letter requesting additional time to file the memorandum, as she was firing Respondent and hiring another attorney. She explained to the judge that she believed Respondent was no longer acting in her best interests. There were too many inconsistencies in his facts and advice concerning her case. She was concerned about his competency, and felt that she could no longer trust him.
Respondent learned of Scott's letter when he received a copy of the court's order in response. On December 7, 2004, he filed a motion for leave to withdraw as her attorney. The motion revealed several confidential communications between the parties, including Respondent's advice as to how to proceed with the case at different times during the proceedings and Scott's responses to that advice, conflicts between them, and Respondent's belief that Scott had failed to disclose or had misrepresented the value of the property and her credit rating.
Respondent's motion to withdraw was granted on December 14, 2004. Points and authorities in support of the motion filed by Respondent were provided by Scott's next attorney, and the court granted the motion to vacate.
Respondent initially took the position that the information contained in the motion to withdraw was allowed by Rule 1.6(c)(3), which provides that a lawyer may reveal confidences or secrets necessary to defend him against an accusation of wrongful conduct. He felt that he needed to address the things that Scott had accused him of. He also claimed that confidentiality
had been "implicitly" waived when Scott authorized him to negotiate with the plaintiff's attorney. In his closing argument, however, Respondent admitted that if he had it to do again, he would have handled the matter differently. He had been concerned about being in trouble with the district court, and had not considered the confidentiality issue.
At various intervals during the course of his representation of Scott, Respondent sent invoices to her, which she paid. Pursuant to their written agreement, Respondent charged Wyatt $100 per hour for his services.
On February 28, 2005, Respondent wrote Scott to explain that if he had known the truth, rather than relying on her fraudulent misrepresentations of the value of her property and her credit rating, he would have charged her his usual hourly rate of $275. Having been discharged, he was now entitled to the reasonable value of his services for the balance of his fees, which was 13.5 hours at $275 per hour. He would accept $200 per hour to settle the matter, but warned Scott that "[i]f you do not choose to accept this proposal, I will file suit for the entire amount and allege fraud so as to prevent the claim from being discharged in bankruptcy."
When Scott did not respond to his letter, Respondent filed a two-count complaint against her in the Circuit Court of the 19th Judicial Circuit. Count I of the Complaint asked for quantum meruit fees at the rate of $275 per hour, totaling $12,506. Count II alleged that Scott had made false representations to Respondent, so that he would take her case on a contingent fee basis, rather than for an hourly fee. Respondent obtained a judgment against Scott in the amount of $12,506.
In February 2004, Respondent filed suit in the Circuit Court of Cook County against Roger Duba, on behalf of his client, Avdija Perazic, relating to a memorandum agreement entered into by the parties at the time that certain real estate was transferred. The case was docketed as case number 04 CH 2488. In or about March 2004, Duba's attorney filed a motion to dismiss the complaint. Attached to the motion was the affidavit of Perazic's previous attorney, Edmund P. Burke. Burke had represented Perazic at the time that the property was transferred.
Burke's affidavit stated that the transfers of property occurred as a result of citation proceedings and not by agreement. From the documents he had received in discovery, Respondent knew that this was not true. He knew that Burke had provided an affidavit to opposing counsel which contained a false statement concerning his client.
On March 5, 2005, Respondent sent Burke a letter describing his amazement at receiving Burke's affidavit disclosing privileged and confidential information. The letter did not indicate that the affidavit contained false information, but suggested that Burke "arrange to appear for a deposition to clear the record." It further stated,
If you believe you have not violated the Rules of Professional Responsibility and/or do [not] choose to voluntarily participate in clearing up the problem you have created, I will subpoena you for a deposition that explore[s] not only the statements contained in your affidavit but also the facts and circumstances leading to the execution of the affidavit. Upon receipt of the transcript, I will forward it [to] the Attorney Registration and Disciplinary Commission and ask they undertake an investigation to determine whether you[r] conduct violated the rules.
If I do not hear from you w/in seven (7) [days, I] will begin the process of serving you with a subpoena.
According to Respondent, he "was not thinking about all the consequences" of the letter at the time that he wrote it. Respondent did not intend to intimidate Burke, just to alert him to the fact that he had sworn to a statement that was not true, and he should not take this position when deposed. In fact, at the time of his deposition, Burke admitted that he did not know how or when the properties were transferred, or on what basis.
Respondent considered Burke's false statement to be inadvertent, and one that was not serious enough to require reporting under In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790, 127 Ill. Dec. 708 (1988). He intended by this letter to give Burke an opportunity to correct his error.
Rule 8.4(a)(4) - Conduct Involving Dishonesty
The Administrator first argues that the Hearing Board's finding that there was not sufficient evidence that Respondent engaged in dishonest conduct by tendering a $501 check to the Clerk of the Circuit Court in payment of the fees required to file Foley's complaint, at a time when he had $10.03 in the account upon which the check was drawn, was against the manifest weight of the evidence. The Administrator maintains that this finding cannot be reconciled with the evidence, which showed either that Respondent knew the check would not clear or that he acted recklessly. Administrator's Brief at 16-22.
The Hearing Board found credible Respondent's testimony that he was unaware of the balance of the account at the time when he tendered the check. Therefore, the Hearing Board found that the violation of Rule 8.4(a)(4) charged in Count I was not shown by clear and convincing evidence. Whether Respondent acted with dishonest intent is a factual determination. In re Petti, 00 CH 28 (Review Board, August 28, 2002), approved and confirmed, No. M.R. 18446 (January 23, 2003). Upon review, the factual findings of the Hearing Board must be
affirmed unless they are against the manifest weight of the evidence, which occurs when an opposite conclusion is apparent, or the fact found appears to be unreasonable, arbitrary or not based upon the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993); Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 212 Ill. Dec. 968 (1995).
The Administrator's argument that a violation of Rule 8.4(a)(4) may be found when an attorney's conduct is so careless or reckless as to be considered knowing is correct, however. In re Jakubowski, 93 CH 455 (Review Board, May 10, 1996) Respondent's petition for leave to file exceptions denied; Review Board approved and confirmed, No. M.R. 12728, (September 24, 1996). Black's Law Dictionary defines "recklessness" as "[c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk." Black's Law Dictionary (8th Ed. 2004). That is exactly what has happened in this case.
Respondent apparently believed that as long as he did not actually know the balance of his account, he could write checks with impunity. Despite a lengthy history of returned checks and overdrawn accounts, Respondent acknowledged that his bookkeeping "wasn't wonderful at that point." While he kept a running balance in his account, he agreed that "apparently [it was] not good enough." Bank records from the 8˝ months before he wrote the check to the Circuit Court show a confusing array of overdraft charges that resulted in part from fourteen checks written by Respondent that could not be cashed when first presented for payment, due to a lack of funds.
By tendering his check to the Clerk of the Court, Respondent implicitly represented that it would clear when it was presented for payment. In re Elias, 114 Ill.2d 321,
499 N.E.2d 1327, 102 Ill. Dec. 314 (1986). Because Respondent ignored the possibility that his careless banking practices might prevent the check from doing so, his conduct was in violation of the rules. While as the Hearing Board found, Respondent may not have had actual knowledge that his account was overdrawn, we conclude that his conduct in tendering the check under these circumstances showed sufficiently reckless disregard to violate Rule 8.4(a)(4).
Rule 1.5(a) - Unreasonable Fee
A client may discharge an attorney at any time, for any reason. In re Smith, 168 Ill.2d 269, 293, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995). Following his discharge, the lawyer is entitled to payment for services rendered to the client on a quantum meruit basis. Rhoades v. Norfolk & Western Railway Co., 78 Ill.2d 217, 230, 399 N.E.2d 969, 35 Ill. Dec. 680 (1979). The Administrator also objects to the Hearing Board's finding that the facts failed to show that Respondent charged Wyatt an unreasonable fee after being discharged, arguing that the amount he obtained from his lawsuit was not what he deserved, and substantially more than he expected to receive from the case. The contract between Scott and Respondent provided that she would pay him at the rate of $100 per hour, plus 25% of any recovery, less the payments made at the hourly rate. The lawsuit Respondent filed after his firing prayed for fees at the rate of $275 per hour, which he claimed was his usual hourly fee. The administrator argues that this was unethical and vindictive. Administrator's Brief at 23-27.
The Administrator does not take issue with the Hearing Board's factual findings, but with its finding, based on the circuit court's fee award, that those facts do not show a violation of Rule 1.5(a). The Supreme Court directs that the Hearing Board's legal conclusions are subject to de novo review. In re Discipio, 163 Ill.2d 515, 527, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994).2
Rule 1.5(a) provides that "[a] lawyer's fee shall be reasonable." By implication, the Circuit Court of the Nineteenth Judicial Circuit determined that Respondent's claim for $12,506 in quantum meruit fees was reasonable when it entered a judgment in his favor for that amount. A judgment entered by a court having jurisdiction over the parties and the subject matter is
binding upon all whom the law says shall be bound by it….until it is reversed in a regular proceeding for that purpose. While it remains a judgment it cannot be inquired into, nor its regularity questioned, in any collateral proceeding.
Malone v. Cosentino, 99 Ill.2d 29, 32, 457 N.E.2d 395, 75 Ill. Dec. 401 (1983).
A collateral attack on a judgment is an attempt to impeach the judgment in an action other than that in which it was rendered. Buford v. Chief, Park District Police, 18 Ill.2d 265, 271, 164 N.E.2d 57 (1960). The Administrator attempts to impeach the judgment previously entered by the circuit court by asking the Review Board to reach a different result, and that we cannot do. Even if the circuit court erred in finding that Respondent's claim for fees was reasonable, as the Administrator contends, it is determinative of the issue. Malone v. Cosentino, supra, 99 Ill.2d at 32, 457 N.E.2d 395, 75 Ill. Dec. 401. This prohibition against collateral attack applies "regardless of the sameness of the parties." Board of Trustees of Community College District 508 v. Rosewell, 262 Ill. App. 3d 938, 961, 635 N.E.2d 413, 200 Ill. Dec. 74 (1st Dist. 1992), appeal denied, 149 Ill.2d 647, 612 N.E.2d 511, 183 Ill. Dec. 859 (1993). We conclude, therefore, that Respondent's fees in this matter were reasonable.
Additionally, in In re Owens, 144 Ill.2d 372, 379, 581 N.E.2d 633, 163 Ill. Dec. 479 (1991), the Supreme Court held that while the judgment in a civil matter "may not be the only factor of consideration of a Hearing Board, it nevertheless may be a component in the greater whole of the Board's decision." The court's holding in Owens does not appear to have
been applied in a case where the judgment would prevent a finding of misconduct, rather than automatically result in one. However, we conclude that the judgment was not the only factor supporting the Hearing Board's finding. As the Hearing Board noted, whatever the previous arrangement between Respondent and Scott may have been, once Respondent was discharged, it was no longer in effect. Respondent was entitled to reasonable fees, on a quantum meruit basis. In re Smith, supra, 168 Ill.2d at 293, 659 N.E.2d 896, 213 Ill. Dec. 550. The Administrator presented no evidence indicating that the $275 per hour requested in Respondent's motion was per se' unreasonable.
Rule 1.15(a) - Commingling
Next, Respondent objects to the Hearing Board's finding in Count I that Respondent failed to keep his own property separate from that of his clients, in violation of Rule 1.15(a). He claims that the facts do not support such a finding since, as all money paid by Eileen Foley had already been earned as legal fees at the time he received it, no commingling could have occurred. Respondent's Brief at 16-19.
Respondent does not address the fact that the title of the account into which he deposited all of the money he received from Foley was "David M. Levin, Ltd./IOLTA," (Interest on Lawyer's Trust Accounts), (emphasis added). The fact that there were no funds belonging to a client in the account at a particular moment does not mean that at that moment, it was not a trust account. Respondent paid his business and personal expenses from that account. Placing personal funds in a client trust account violates Rule 1.15(a). In re Ingersoll, 186 Ill.2d 163, 170, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999).
Additionally, Foley's contract with Respondent required her to pay both legal fees and expenses. We have accepted Respondent's explanation that at the time he wrote the $501
check to file Foley's complaint, he was unaware that the account contained only $10.03. It follows, therefore, that Respondent must have intended to designate $501, plus the $56.80 he paid to serve the complaint as money that still belonged to Foley, to be used for costs. Reviewing the facts de novo, we find that they are sufficient to support a finding that respondent violated Rule 1.15(a).
Rule 1.6(a) - Revealing a Client's Confidences and Secrets
Respondent also objects to the Hearing Board's finding that he violated Rule 1.6(a), which prohibits an attorney from revealing a client's confidences or secrets without the client's consent. In advising the court that she had retained new counsel, Scott complained that Respondent was no longer acting in her best interests, was inconsistent in his facts and advice, could not be trusted and might not be competent. In an effort to defend himself against these charges, Respondent attached his affidavit to his motion to withdraw as Scott's attorney, which included the advice that he had given her and reasons for his change in strategy, Scott's responses and later in the case, her refusal to communicate with him, Respondent's version of the conflicts that arose between them and his belief that Scott had not been entirely honest about the value of her property or her credit rating. Respondent now claims that Rule 1.6(c), which allows a lawyer to reveal a client's confidences or secrets in order to defend against an accusation of wrongful conduct, permitted him to reveal this information. Respondent's Brief at 20-22.
Rule 1.6 is substantially similar to Rule 1.6 of the American Bar Association's Model Rules of Professional Conduct, except that subparagraph (c)(3) of our Rule 1.6 does not include the Model Rules' provision that an attorney may reveal a client's confidential information in response to allegations of wrongful conduct "in any proceeding." Mod. Rules
Prof. Conduct Rule 1.6(b)(3). Rule 1.6 of the Illinois rules does not suggest any limitation on the forum in which the rule applies. However, we note that the issue generally arises when the focus of the proceeding is on the quality of the attorney's representation, such as in a disciplinary proceeding, (In re Horne, 93 CH 568 (Review Board, August 9, 1996), approved and confirmed, No. M.R. 12936 (May 30, 1997)), or a malpractice action, Profit Management Development, Inc. v. Jacobson, Brandvik & Anderson, Ltd., 309 Ill. App. 3d 289, 721 N.E.2d 826, 242 Ill. Dec. 547 (2nd Dist. 1999), e.g.
Respondent revealed Scott's confidential information in the foreclosure action. The focus of the proceedings was not on Respondent's representation, but concerned whether or not he would be granted leave to withdraw from representing her. Respondent's revelation added nothing to the resolution of that issue. We find that Rule 1.6(c)(3) does not contemplate disclosure under such circumstances.
Commentary to the Model Rules advises that the purpose behind the prohibition against revealing information relating to a lawyer's representation of a client is to contribute "to the trust that is the hallmark of the client-lawyer relationship." Mod. Rules Prof. Conduct Rule 1.6(b)(3), Comment, . Allowing such information to be disclosed whenever a client becomes dissatisfied with her lawyer would have a definite chilling effect on that trust. We conclude that Respondent violated Rule 1.6(a) by including Scott's confidential information in his motion to withdraw as her attorney.
Rule 1.2(e) - Threat of Disciplinary Action
Next, Respondent objects to the Hearing Board's finding that he threatened Edmund Burke with disciplinary action if he did not withdraw the affidavit that he had provided
to the opposing party, in order to gain advantage in a civil lawsuit filed on behalf of his client, Avdija Perazic. Respondent's Brief at 23-24.
Respondent testified that he did not intend to intimidate Burke, merely to alert him to the fact that he might have ‘stepped over the line" by revealing confidences of his former client. As Respondent intended to depose Burke, he did not wish him to do so any further at the deposition.
Respondent believed that some of the information contained in Burke's affidavit, which was detrimental to Perazic's case, was incorrect. The Hearing Board found that his letter to Burke was intended to induce Burke to contradict the statements in the affidavit, by threatening to involve the ARDC. There is an ample basis for this determination.
According to the letter, Respondent previously had asked Burke to provide him with an affidavit and Burke had refused. Respondent was therefore "surprised" that he had given the defendant one, and "amazed" at its contents. The letter claimed that in Respondent's opinion, Burke had violated Rules 1.6 and 1.9. It did not specifically object to the contents of the affidavit, although it stated that Burke has "created a problem for Perazic which needs to be undone, and can by complete disclosure of the facts." It gave Burke seven days to "[clear] up the problem you've created," or Respondent would ask the ARDC to investigate.
Respondent also finds it significant that Burke was a witness, not an attorney in this case. Rule 1.2(e) states only that a lawyer "shall not present, participate in presenting or threaten to present….professional disciplinary actions to obtain an advantage in a civil matter." Respondent suggests no authority, and we find none, indicating that the rule is inapplicable when the person threatened is a witness. The Hearing Board's findings concerning Count V were not against the manifest weight of the evidence.
Rule 8.4(a)(5) & Supreme Court Rule 770 - Conduct Prejudicial to the Administration of Justice & Conduct Tending to Defeat the Administration of Justice or to Bring the Courts or Legal Profession Into Disrepute
Respondent next objects to the Hearing Board's findings that he engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), in Counts I, II, III and V. Respondent's Brief at 18-20, 22, 24. To prove that Respondent engaged in conduct prejudicial to the administration of justice requires the Administrator to show by clear and convincing evidence that the administration of justice was actually prejudiced. In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840, 148 Ill. Dec. 243 (1990). Actual impact on the administration of justice must be shown. In re George, 95 CH 608 (Review Board, January 10, 1997), approved and confirmed, No. M.R. 13478 (May 30, 1997). Accepting the facts as found by the Hearing Board, Respondent's commingling of his funds with those of his client in Count I, without more, did not have this result. We conclude that a violation of Rule 8.4(a)(5) was not sufficiently proved in Count I.
Respondent's claim that neither violations of Rule 8.4(a)(5) nor of Supreme Court Rule 770's prohibition against conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute were shown by clear and convincing evidence in Counts II, III and V results from the court's comment in In re Storment, 203 Ill.2d 378, 397, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002), that these are generally considered to be subsidiary charges. (See also In re Witt, 145 Ill.2d 380, 388, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991).) As it is his position that there was not sufficient proof that he revealed confidential information (Count III) or threatened Edmund Burke with disciplinary action (Count V), and the Hearing Board found that he did not engage in dishonest conduct in Count II, he argues that these "ancillary charges" must fall as well.
Respondent's arguments have become moot as a result of our holdings here. Even if this were not the case, our holdings following Storment establish that while violations of these rules may generally depend on proof of other, more specific misconduct, this is not a requirement. See, e.g., In re Nathe, 02 CH 60 (Review Board, January 20, 2005), Administrator's petition for leave to file exceptions denied, No. M.R. 20076 (May 20, 2005), rejecting Respondent's argument that no violation of Supreme Court Rule 770 can be found without another violation of the Rules, and In re Anderson, 96 CH 893 (Review Board, October 4, 2000), Administrator's petition allowed on other grounds, sanction increased, No. M.R. 17157 (January 19, 2001), where one count of the complaint charged only violations of Rule 8.4(a)(5) and Supreme Court Rule 770, both of which were proved by clear and convincing evidence.
The final issue is the proper sanction. The Hearing Board recommended that Respondent be suspended from the practice of law for eighteen months, but its recommendation is advisory only. In re Imming, 131 Ill.2d 239, 260, 545 N.E.2d 715, 137 Ill. Dec. 62 (1989). The Administrator urges us to increase Respondent's suspension to eighteen months and until further order of court, (UFO), due to the fact that he has been disciplined on two previous occasions, while Respondent suggests that censure would be appropriate. Administrator's Brief at 27-33; Respondent's Brief at 25, 28-29.
In making our recommendation, we consider the case based on its own particular facts and circumstances, yet we must keep in mind that the purpose of discipline 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 Timpone, supra, 157 Ill.2d at
197, 623 N.E.2d 300, 191 Ill. Dec. 55. Aggravating and mitigating factors are relevant. In re Witt, supra, 145 Ill.2d at 398, 583 N.E.2d 526, 164 Ill. Dec. 610.
The Administrator argues that Respondent should be suspended until further order of court because of his prior discipline and because of the Hearing Board's findings that he expressed no remorse for is actions, failed to recognize the seriousness of his misconduct and presented no evidence in mitigation.
Not every instance of repeated misconduct requires a suspension until further order of court. This is true even when similar misconduct is involved, (see, e.g., In re Towles, 99 CH 56 (Review Board, March 13, 2003), Respondent's petition for leave to file exceptions denied, No. M.R. 18749 (November 14, 2003)), and even when it is the respondent's third finding of misconduct, (see In re Guilford, 115 Ill.2d 495, 505 N.E.2d 342, 106 Ill. Dec. 36 (1987); In re Howard, 188 Ill.2d 423, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999)). A suspension until further order of court operates as the functional equivalent of disbarment. In re Baril, 00 SH 14 (Review Board, March 18, 2002), approved and confirmed in part suspension affirmed, No. M.R. 18162 (September 19, 2002). It is a sanction that the Review Board has found to be warranted "only in very limited circumstances." In re Kowalski-Bradley, 99 CH 77 (Review Board, September 17, 2001), approved and confirmed in part, No. M.R. 17802 (January 28, 2002).
We have examined the cases cited by the Administrator in support of his position and conclude that they involve misconduct of a much more serious nature, and misconduct much more harmful to the clients involved, than the misconduct of this case. Several involve multiple instances of neglect, e.g., In re Denny, 95 CH 563 (Hearing Board, February 29, 1996), approved and confirmed, No. M.R. 12526 (May 28, 1996), in which respondent neglected the cases of
three clients, two of which became time-barred; In re O'Bryan, 95 CH 708 (Hearing Board, April 22, 1996), approved and confirmed, No. M.R. 12996 (January 30, 1997), where among other misconduct, respondent neglected four cases; and In re Raymond, 94 CH 883 (Review Board, November 8, 1996), Administrator's petition for leave to file exceptions allowed, sanction increased, No. M.R. 13179 (January 30, 1997), resulting from two cases of neglect and repeated lies and misrepresentations to his client and to the ARDC. In his third disciplinary case, respondent in In re Marsh, 02 CH 15 (Hearing Board, January 9, 2004), approved and confirmed, No. M.R. 19556 (September 27, 2004), collected fees from eleven clients but failed to provide services to justify those fees, which was an aggravated version of the misconduct of his second disciplinary case. Respondent Brill had previously been disciplined for neglecting eight cases and again for conversion. He was finally suspended UFO when he neglected another case while practicing law during a period of suspension. In re Brill, 03 CH 85 (Review Board, December 29, 2005), Respondent's petition for leave to file exceptions denied, No. M.R. 20757 (May 16, 2006). The respondent in In re Timpone, 208 Ill.2d 371, 804 N.E.2d 560, 281 Ill. Dec. 595 (2004), who had previously neglected cases, among other misconduct, was suspended for three years and UFO in his third disciplinary case when the court concluded that he failed to grasp the importance of his ethical obligations after he commingled and converted client funds for a second time, entered into a business transaction with a client without making proper disclosures, and engaged in conduct involving fraud, dishonesty, deceit or misrepresentation.
The Administrator also cites In re Hildebrand, 04 SH 52 (Review Board, December 30, 2005), petitions for leave to file exceptions allowed, sanction increased, No. M.R. 20754 (March 20, 2006), where respondent was suspended for one year and UFO when he engaged in a conflict of interest by representing two defendants in the same criminal case at a
time when he was on probation for the same misconduct. In In re Schildman, 00 SH 60 (Review Board, July 3, 2003), Administrator's petition for leave to file exceptions allowed, sanction increased, No. M.R. 18905 (November 20, 2003), Respondent's suspension was continued until further order of court for misconduct that included engaging in a pattern of practicing law while suspended. Respondent was suspended UFO in In re Guy, 99 SH 91 (Hearing Board, December 27, 2000), approved and confirmed, No. M.R. 17401 (March 23, 2001), after committing several criminal offenses, both felony and misdemeanor.
Without meaning to minimize Respondent's history of misconduct, we note that all of his previous problems, and much of it in this case, result from his inability to keep his bank accounts in order. In the first proceeding, Respondent wrote checks to two employees that were returned for non-payment. In re Levin, 99 CH 42 (Review Board, August 31, 2001), Administrator's petition for leave to file exceptions granted, sanction increased, No. M.R. 17754 (January 28, 2002). The second case involved checks from two of his clients that Respondent claimed were a portion of the legal fees that the evidence showed that he had already earned, but which the Hearing Board found to be filing fees. Respondent deposited the checks in his operating account, and used the funds to pay business, personal and client expenses. A check that he wrote to pay bankruptcy filing fees was returned for insufficient funds. In re Levin, 03 CH 24 (Review Board, June 6, 2006), Administrator's petition for leave to file exceptions allowed; Respondent suspended for six months and required to enroll in the first professionalism seminar scheduled after entry of this order, No. M.R. 21047 (September 21, 2006). He commingled funds in Count I, and overdrew his account in Count II of this case. The Administrator does not cite a case in which such a severe sanction has been ordered for this type of misconduct.
We also find that this case is not entirely without mitigation. Respondent appears to have been cooperative in these proceedings, which is a mitigating factor. In re Samuels, 126 Ill.2d 509, 531, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989). It appears that Respondent attempted to correct the problem that resulted in his most recent disciplinary case concerning whether funds from his clients were filing or legal fees by having both Scott and Foley execute contracts specifying that their initial payments were "monies due….for legal services and for payment of costs." Although it was during his pro se' closing argument and not while under oath, we note that Respondent admitted that if he could do them over again, he would do things differently concerning both his motion to withdraw in Scott's case and his letter to Burke.
Finally, we attach significance to the fact that all of the misconduct in this case occurred before Respondent enrolled in the professionalism seminar as ordered in the previous case. After considering all of the circumstances, we find that they do not require what our Supreme Court has described as "after disbarment….the most severe [sanction] that [it] can impose on an attorney." In re Timpone, supra, 208 Ill.2d at 386, 804 N.E.2d 560, 281 Ill. Dec. 595.
After examining the cases cited by the Hearing Board, we agree that a suspension of eighteen months is appropriate. We affirm the Hearing Board's factual finds and its findings of misconduct, except that we conclude that there was not clear and convincing evidence that Respondent violated Rule 8.4(a)(5) in Count I, but that there was clear and convincing evidence that he violated Rule 8.4(a)(4) in Count II. We recommend that Respondent, David Michael Levin, be suspended from the practice of law for a period of eighteen months.
Date Entered: 21 February 2008
Terrence V. O'Leary
1 At the time that the judgment was entered and when she was Respondent's client, Scott was known as Pamela C. Wyatt. She became Pamela Wyatt Scott by the time of the hearing in this matter, and is referred to as such throughout to avoid confusion.
2 The Administrator relies on In re Pierce, 02 CH 88 (Review Board, July 29, 2005), petitions for leave to appeal denied, discipline modified, No. M.R. 20397 (November 22, 2005) in arguing that this issue presents a mixed question of law and fact, which should be reviewed under a clearly erroneous standard. It is the Review Board's responsibility to determine whether or not the facts, as found by the Hearing Board, constitute misconduct. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994). Typically, this involves a question of law, to which a de novo standard of review applies. In re Ushijima, 119 Ill. 2d 51, 56-57, 518 N.E.2d 73, 115 Ill. Dec. 548 (1987). To the extent that Pierce might suggest otherwise, the Review Board has declined to follow that decision. In re Feeley, 03 CH 78 (Review Board, December 30, 2005), Administrator's petition for leave to file exceptions allowed, sanction increased, No. M.R. 20740 (March 21, 2006).
Duffy, Daniel P., Panel Member, concurring in part and dissenting in part:
I concur in the majority's conclusions that a violation of Rule 8.4(a)(5) was not sufficiently proved in Count I and that Respondent's fees in the Scott matter were reasonable. However, I respectfully dissent and write separately concerning that portion of the majority report which concludes that by recklessly writing a check without knowing whether he had sufficient funds to cover it, Respondent violated rule 8.4(a)(4).
In the first disciplinary matter involving Respondent, the Administrator filed a complaint consisting of six counts. The Hearing Board found that misconduct was sufficiently proved in only two, where Respondent wrote eight checks to two employees that were returned for non-payment. The Hearing Board recommended that Respondent be suspended for ninety days, with the suspension stayed in its entirety. Finding it "a close case" whether Respondent had engaged in professional misconduct at all, the Review Board recommended that he be censured. The Supreme Court, which has the final responsibility to determine what conduct is disciplinable and the severity of the discipline required, In re Owens, 125 Ill.2d 390, 400, 532 N.E.2d 248, 126 Ill. Dec. 563 (1988), ordered Respondent suspended for ninety days and until restitution was paid. In re Levin, 99 CH 42 (Hearing Board, November 17, 2000), (Review Board, August 31, 2001), Administrator's petition for leave to file exceptions granted, No. M.R. 17754 (January 28, 2002).
Respondent was charged with misconduct in a two-count complaint in the second case. Respondent testified that the checks he received underlying both counts were a portion of his legal fees. The evidence showed that he had earned legal fees in excess of the amount of the checks. Respondent deposited the checks in his operating account and used the money to pay
business, personal and client expenses. In one count, his check written to pay filing fees for a bankruptcy petition was returned as his account did not have sufficient funds to pay it.
The Hearing Board found commingling, conversion and related charges in both counts, and recommended that Respondent be suspended for six months and required to enroll in an office management professional responsibility seminar. The majority of the Review Board found Respondent's conversions to be technical in nature, and recommended that no discipline be imposed. I dissented in that case, as in my opinion, there was not clear and convincing evidence of misconduct in either count. It was my recommendation that the charges against Respondent be dismissed. Without issuing a written opinion, the Supreme Court allowed the Administrator's petition for leave to file exceptions and suspended the Respondent for six months and required him to enroll in an office management professional responsibility seminar. In re Levin, 03 CH 24 (Hearing Board, September 1, 2004), (Review Board, June 6, 2006), Administrator's petition for leave to file exceptions allowed, No. M.R. 21047 (September 21, 2006).
In this, the newest case concerning the Respondent, the Hearing Board found credible Respondent's testimony that he was unaware of the balance of his account at the time he tendered the check at issue. Therefore, the Hearing Board found that the violation of Rule 8.4(a)(4) charged in Count I was not shown by clear and convincing evidence. Whether Respondent acted with dishonest intent is a factual determination. In re Petti, 00 CH 28 (Review Board, August 28, 2002), approved and confirmed, No. M.R. 18446 (January 23, 2003). The Hearing Board was able to observe Respondent and evaluate his demeanor and the reliability of his testimony. In re Spak, 188 Ill.2d 53, 66, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999); In re
Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900, 53 Ill. Dec. 231 (1981). The Hearing Board's finding was not against the manifest weight of the evidence and should be left undisturbed.
Date Entered: 21 February 2008
Daniel P. Duffy