Filed January 4, 2006
In re Rodney David Wellington
Supreme Court No. M.R. 20054
Commission No. 05 RT 3001
Synopsis of Hearing Board Report and Recommendation
NATURE OF CASE: Petitioner requested reinstatement after being suspended for one year and until further order of court for neglect, misrepresentation, failure to communicate with client, failure to refund fees and practicing law without being registered with the Commission
RULES DISCUSSED: Supreme Court Rule 767
RECOMMENDATION: Reinstatement denied
DATE OF OPINION: January 4, 2006
HEARING PANEL: Stuart J. Chanen, Brian W. Bell and Kenneth A. Peters
ADMINISTRATOR'S COUNSEL: Gina M. Abbatemarco
RESPONDENT'S COUNSEL: Karim Dure
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
RODNEY DAVID WELLINGTON,
|Supreme Court No. 20054
Commission No. 05 RT 3001
REPORT AND RECOMMENDATION OF THE HEARING BOARD
A hearing on Rodney David Wellington's petition for reinstatement to the practice of law was held on October 7 and 18, 2005 at the offices of the Attorney Registration and Disciplinary Commission, Chicago, Illinois before a panel consisting of Stuart J. Chanen, Brian W. Bell and Kenneth A. Peters. Petitioner appeared and was represented by Karim Dure. The Administrator was represented by Gina M. Abbatemarco.
CONDUCT FOR WHICH PETITIONER WAS DISCIPLINED
On March 30, 2001, the Administrator filed a seven-count complaint against Petitioner alleging that he neglected tax deed matters for Teanya Kelly and Betty Swan, failed to communicate with those clients, made misrepresentations to Kelly regarding his work on her matter, failed to refund unearned fees and practiced law while not registered with the Commission. At the time of the complaint, Petitioner had been previously disciplined for neglect. Petitioner consented to discipline and on March 22, 2002 he was suspended for one year and until further order of Court.
PETITION AND OBJECTIONS
On February 4, 2005 Petitioner filed a Petition for Reinstatement pursuant to Supreme Court Rule 767. The Petition lists his employment history and income since his suspension, the
dates and amounts of restitution, his financial assets and obligations, and a summary of his treatment for alcohol and drug addiction.
The Administrator filed objections to the Petition and requested that it be denied. The objections focused on the serious nature of Petitioner's misconduct, his maturity and experience at the time of his misconduct, his failure to refund approximately $11,000 in unearned fees, his failure to disclose and pay several outstanding federal and state tax liens, his history of drug use, and his lack of candor and forthrightness.
Petitioner testified on his own behalf, called three witnesses, and introduced eleven exhibits. The Administrator examined Petitioner adversely, called two additional witnesses, presented thirteen exhibits and submitted the evidence deposition of Dr. Stafford Henry. In addition the parties submitted a stipulation regarding the testimony of Raenee Jemison.
Petitioner graduated from the University of Iowa in 1976 with a degree in broadcast journalism. After playing professional football for three and one-half years, he suffered an injury which ended that career. He then attended law school and, after becoming licensed in 1985, worked for one year with an attorney who represented athletes. Petitioner then started his own practice concentrating on real estate tax work. (Tr. 96-97, 101-04).
In 1997 and 1998 Petitioner was retained to perform legal work for Teanya Kelly and Betty Swan. Both clients had obtained certificates of purchase from a real estate tax scavenger sale and asked Petitioner to obtain a tax deed for those properties. Petitioner described the task as a multi-step process which included filing a petition, ordering a title search, and sending out notices to interested parties within a specific time period. Petitioner testified that he began the
work for both clients but did not complete the process for either of them. (Adm. Ex. 1; Tr. 104-05).
From 2000 to 2002 Petitioner's parents suffered serious health problems. In 2000 his mother had a stroke and could no longer be the primary caretaker for his father who, as a result of diabetes, was a double amputee and partially blind. During the latter part of 2000, Petitioner moved in with his parents to care for them. Petitioner considered his father to be his best friend and stated that witnessing his father's helplessness during his final months was a devastating experience. Petitioner's father died in April 2002. (Tr. 107-09).
Petitioner testified that, because he was not prepared for the all-consuming responsibility of caring for his parents, his obligations to his clients Kelly and Swan slipped through the cracks. He expressed remorse for his failure to complete his duties to Swan and Kelly. (Tr. 110-11).
In 2002 Petitioner consented to discipline and was suspended in March of that year. He stated he agreed to the sanction because he knew he had been negligent and he had no funds to fight the allegations. Concerning his failure to register with the Commission for two years prior to his suspension, Petitioner attributed that omission to the stress in his life and to his substance abuse. He acknowledged he did not raise the issue of his substance abuse during the consent proceedings. At the time of his suspension, Petitioner was forty-eight years old and had been practicing law for seventeen years. (Tr. 107, 112-15, 196-97, 216).
Petitioner stated that he has made full restitution to Kelly and Swan. He completed restitution to Kelly in April 2001 by giving her two checks in the amounts of $1100 and $500. Since Swan was repaid through the ARDC client protection program, Petitioner reimbursed the ARDC for $5,639 in June 2004. Petitioner stated he has paid all of the fees and dues owed to the ARDC. (Resp. Ex. 1; Tr. 114, 116).
Petitioner acknowledged that, in addition to those matters for which he was disciplined, he also neglected matters he was handling for Henry Ash and Aubrey Davis and failed to refund unearned fees to them. Petitioner testified he received $3,500 from Henry Ash in September 1999 to pursue a zoning variance on Ash's behalf but did not complete that work. He was in contact with Ash in 2001 to set up an installment plan for repayment of the fees and made one payment of $700. He has not been in contact with Ash since 2001 and acknowledged he still owes Ash $2800. (Resp. Ex. 4; Tr. 116-17, 121, 217).
Concerning Aubrey Davis, Petitioner stated that he was not aware until July 2005 that Davis had submitted a request for an investigation of Petitioner's conduct to the Administrator in 2004. In that request Davis stated he paid Petitioner $8,952 to obtain a deed for properties Davis had purchased at a tax sale in 1997. Due to Petitioner's failure to perform the work, Davis claimed he lost more than $20,000 in fees and property. Petitioner explained that he contacted Davis and offered to set up a repayment plan but Davis refused the offer because he wanted his payment in one lump sum. As a result, Petitioner has not made any repayment to Davis. (Resp. Ex. 5; Tr. 118-19, 123, 218).
Petitioner stated he has set up an account entitled "Good Works" into which he will deposit at least $250 to $300 each month for the purpose of paying outstanding liabilities. He intends to make restitution to his former clients on an ongoing basis. (Resp. Ex. 7; Tr. 118-19).
Petitioner testified he has been arrested three times during his period of suspension. In October 2002 and February 2003 he was arrested for unlawful possession of a controlled substance and in August 2003 he was arrested on a traffic charge for driving another person's car without proper registration. The police report for one of the arrests lists Petitioner's occupation as "lawyer" and also lists a business address for him. Petitioner denied that he represented to the arresting officer that he was an attorney. He stated that after the officer made some unnecessary
comments, he told the officer "I have practiced law" and "I know the law." He explained that the address he gave the officer was for the office of another attorney who accepted Petitioner's mail because Petitioner had no permanent residence at that time. The charges were dismissed in all three cases. (Admin. Ex. 6, 9-11; Tr. 130, 183-87, 198-99, 213-14, 237)
Petitioner testified regarding his thirty-five years of drug and alcohol use. He began using drugs and alcohol in college and then, as a professional athlete, the habit became part of his lifestyle. After his years with the NFL, his use of cocaine continued and gradually took control of his life. Following his father's death in 2002, he became despondent and progressed from powdered cocaine to crack cocaine. (Tr. 131-35, 162-63, 215).
Petitioner began working for United International Mortgage Bank ("United") in 2004. At that time he attempted to control his addiction and was able to work for a few months. When he tested positive for drug use in the spring of 2004, his addiction was exposed and he was directed to attend a two-week day-program in California. After his return to Chicago he was able to abstain for only a short period of time before again testing positive for drug use. In August 2004 he entered the Cri-Help residential treatment program in California, where he stayed for 85 days. During his time in the program he attended meetings on a daily basis and was assigned to an individual caseworker. Following his completion of the Cri-Help program, he resided in a sober living house and attended an outpatient treatment program three days each week. (Tr. 164-67, 223-24, 230).
Since Petitioner's return to Chicago in January 2005, he has attended Alcoholics Anonymous meetings at least four times per week and has had daily contact with his sponsor. Petitioner sponsors two other participants in the program. Petitioner stated he has been clean and sober for thirteen months. (Tr. 163, 167-69, 224).
Petitioner understands he has caused devastation to other people. He is attempting to reconcile with his mother and sister, who no longer speak to him. He visits his eight-year-daughter in California twice each month when he attends meetings at United's corporate offices. Petitioner stated he is committed to staying clean and sober and is willing to be monitored for drug use. (Tr. 169-71, 226).
Regarding any omissions or mistakes in his Petition for Reinstatement, Petitioner stated he prepared the petition by himself at the time he was leaving Cri-Help. He stated that as his head began to clear, he realized the importance of his law license and wanted to begin the process of becoming reinstated. Much of the information provided in the petition was based upon his own personal recollections and a credit report that he obtained. Petitioner explained he did not disclose that his accounts with Commonwealth Edison, T-Mobile and Sprint had been placed for collection because that information did not appear on the credit report he was using. Petitioner stated that although he has not yet paid those obligations, he intends to repay everything he owes. He denied having any intent to deceive the Board. (Tr. 124, 239-42, 258-60).
In his petition Petitioner stated "to the best of his knowledge" he had "fully complied" with Supreme Court Rule 764, which requires that clients be notified of an attorney's suspension. He acknowledged that he did not send notification letters to his clients or file an affidavit listing his clients but noted that he had only three clients at the time of his suspension. He further stated he was not aware of his Rule 764 obligations because he represented himself in his disciplinary proceedings. He stated that he did not purposefully fail to disclose any information. On September 30, 2005, he filed a motion asking the Supreme Court for leave to file a list of clients and notice pursuant to Rule 764. (Resp. Ex. 8; Tr. 124-25, 209-12).
In response to the Administrator's objection that Petitioner did not file state tax returns for 1998, 2001, 2002 and 2003 as claimed in his Petition, and has outstanding tax liabilities that
were not disclosed, Petitioner testified when he prepared his petition he thought his accountant had filed the returns in question or was in the process of doing so. As evidence of his payment of taxes owed, he pointed to a $300 cashiers check dated June 4, 2004 made out to his accountant. He further stated that when he attempted to pay his taxes on July 13, 2005 he was informed by the Illinois Department of Revenue that payment had been made in March 2005. Petitioner submitted copies of his Illinois tax returns for the years 1998, 2001, 2002 and 2003. Attached to three of the returns was a photocopy of an envelope addressed to the Illinois Department of Revenue and postmarked March 29, 2005. The returns indicated that the total amount of tax owed by Petitioner for those years was $375. Petitioner acknowledged he has not filed his tax returns for 2004. (Resp. Ex. 6, 13; Tr. 125-27, 200).
Documents from the Illinois Department of Revenue dated June 1991 and April 1994 indicate that the Department has a tax lien against Petitioner for non-payment of taxes. Petitioner acknowledged that his total existing state tax liability is approximately $6,000. He stated he has been in contact with the collection agency handling his state tax liability but no agreement has been reached regarding a payment plan. Petitioner did not disclose the state tax lien in his reinstatement petition. (Adm. Ex. 5; Tr. 201-04).
Petitioner estimated that his current federal tax liability is approximately $6,000. Lien notices from the IRS dated January 1999 and February 1994 indicate that Petitioner's original tax liability was in excess of $30,000 but Petitioner explained that, because of a statute of limitations on tax liability, a large part of that debt has been extinguished. Petitioner testified he recently worked out a payment plan whereby he will submit $500 to the federal government each month. He provided proof of his initial payment, which was made on August 14, 2005, but did not have documentation of his September payment because he submitted his check "a little bit late" and it
had not yet cleared the bank. Petitioner acknowledged he did not disclose the federal tax lien in his petition. (Adm. Ex. 4, Resp. Ex. 6; Tr. 128-29, 202, 205).
When questioned about his current income, Petitioner stated his compensation from United is based upon a percentage of the commissions on loans that his branch is able to obtain. During the last eight months his monthly income has ranged from $2,500 to $5,500. He anticipated that his 2005 income from United would be approximately $45,000. (Tr. 129, 198, 253-54).
In addition to his employment income, Petitioner receives a percentage of rental income from three properties he owns with Sandra McBeth. Petitioner described McBeth, who is the president of United, as his personal friend. Regarding a joint bank account that he and McBeth opened in March 2005 to invest in real estate, Petitioner stated that nearly 100 percent of the funds in the account belong to McBeth, although some undetermined amount represents his share of profits from their joint real estate transactions. He stated he did not disclose his and McBeth's joint real estate investments in his petition because the investments began after the petition was filed. (Tr. 197, 219, 227, 234, 236, 254, 256).
Regarding his bank accounts, Petitioner acknowledged that a Wells Fargo account has been overdrawn on several occasions. He further acknowledged that he did not disclose a Harris Bank account that was opened after his petition was filed. The Harris account is used by Petitioner and Sandra McBeth for investment in real estate. (Tr. 206-08).
Petitioner identified a copy of a January 2005 check for $250 written on the account of Atlanta's Phoenix Properties, Inc.. The check is made out to Petitioner and bears the handwritten notation "attorney fee-United International" on the memo line. Petitioner stated he received the check from Raenee Jemison, who was considering opening a branch office for United and had expressed a need for legal assistance with a partnership agreement. Petitioner stated that he
referred Jemison to an attorney he worked with in Chicago. After Petitioner deposited the check into his account, Jemison decided not to open an office and Petitioner returned the funds to her. (Admin. Ex. 12; Tr. 246-51).
Petitioner and the Administrator stipulated that Raenee Jemison, a partner/owner in Atlanta's Phoenix Properties, Inc. would state that she met with Petitioner regarding the possible opening of a United branch through Jemison's real estate office. Jemison requested Petitioner to arrange for someone to provide her with legal assistance and Petitioner referred her to an attorney that worked in house at United. Jemison then authorized a check for $250 to Petitioner for the purpose of potentially retaining the attorney at United. When Jemison decided not to establish a branch, Petitioner returned Jemison's funds. Jemison would further state that Petitioner never held himself out as an attorney. (Resp. Ex. 12).
Regarding his efforts to stay abreast of the law, Petitioner testified that in his present position with United he reviews and analyzes legal documents that are a part of loan packages. He also reads the Daily Law Bulletin "now and then." During his suspension he has not attended any law-related classes or seminars or any Bar Review course nor has he reviewed any changes in the Rules of Professional Conduct. (Tr. 208-09, 213, 257).
Petitioner acknowledged that in the past, he took his law license for granted. Now, however, he sees his license as a privilege and looks forward to regaining it so he can serve his community. He stated that, next to staying clean and sober, being reinstated to the practice of law means more to him than anything else. If reinstated, Petitioner believes his license would enhance his opportunities both at United and outside United. He does not anticipate opening a practice right away. (Tr. 172-74, 245-46).
Jay Laisne testified that he operates a company known as Life Coach, LLC and is also a circuit speaker for Alcoholics Anonymous. Laisne met Petitioner through Alcoholics Anonymous in Los Angeles and has been Petitioner's sponsor in that program for approximately eight months. Laisne traveled to Chicago from California to give testimony on behalf of Petitioner. (Tr. 38-43, 62).
Laisne explained the 12-step process for overcoming an alcohol or drug problem and his role as Petitioner's sponsor. When Petitioner was in Los Angeles, Laisne accompanied him to AA meetings on a daily basis. Since Petitioner returned to Chicago, Laisne speaks with him by telephone almost daily. During these conversations they discuss Petitioner's acknowledgement and recognition of past mistakes, his family relationships, and any current problems or concerns. Laisne stated that Petitioner has made a list of everyone he has harmed and is making amends to them. Laisne was aware that Petitioner attempted to work out a payment plan to reimburse one of his former clients and that the client refused Petitioner's efforts. (Tr. 41-44, 47, 49-50, 63).
Laisne stated he has sponsored between 250 and 300 people in AA programs. Of that number, thirty people have maintained their sobriety. According to Laisne, a key requirement for recovery is a desire to stay clean and sober. He described Petitioner as having a desire stronger than any person he has worked with in AA in ten years. He also applauded Petitioner's spiritual strength as playing a large part in his recovery. (Tr. 44, 46, 53-54).
Laisne described Petitioner's recovery process as smooth and his chances of maintaining sobriety superior. He attributed Petitioner's anticipated success to the fact that he goes to many meetings and has taken responsibility for his actions. Laisne was not aware of the exact facts which gave rise to Petitioner's suspension from the practice of law nor had he reviewed the petition or the objections to the petition. (Tr. 56, 59-62).
Johnny L. Miller
Johnny L. Miller, pastor of the Mount Vernon Church in Chicago, testified he has known Petitioner for over a decade. He stated that when they first met, Petitioner was a role model who mentored young men in the community. Petitioner has also provided legal representation to Miller. (Tr. 14, 18-19, 33).
After Petitioner's suspension, Miller was informed by Petitioner that Petitioner could no longer represent him. Miller then became aware that Petitioner had drug and alcohol problems and that he left the community for a period of time. Miller stated that when Petitioner returned, he became involved in the community, was accessible, was no longer depressed, and conducted business in an appropriate manner. Miller believes Petitioner now possesses the character and integrity that he once saw when Petitioner was involved in mentoring. (Tr. 20-21, 29-34).
Based on his experience as a supporter of the AA and NA programs held at his church, Miller views Petitioner as recovered and moving in the right direction with his life. He believes Petitioner has the capability to make a great contribution to humanity. (Tr. 23-25, 31).
Sandra Kay McBeth
Sandra K. McBeth testified she has been the president of United International Mortgage Bank for twenty-three years. The bank, which originates and services loans, is based in California but has branches in many states, including Illinois. McBeth hires the management staff for the branches and for corporate headquarters. (Tr. 66-67).
McBeth met Petitioner in 2003 through a mutual friend and in March 2004 she hired him to start up and manage a branch of United in Chicago. During the interview process she learned from Petitioner that he had been suspended from the practice of law. After checking with the ARDC, she did not view the reason for his suspension as a problem that would interfere with his ability to manage a branch. McBeth viewed Petitioner as someone who could assume a
leadership role, hire and supervise employees, motivate staff members and bring business into the branch. McBeth stated that Petitioner is responsible for the total operation of the branch. (Tr. 68-72, 75, 77, 84).
McBeth stated she was not initially aware of Petitioner's battles with alcohol and drugs but learned of his problems when the results from a random drug test came back positive. As mandated by United's bonding company, Petitioner was assigned to an out-patient program. When he continued to test positive for substance abuse, he was enrolled in the Cri-Help in-patient program in California. After finishing that program, he moved into a sober living facility for a period of time and remained free of substances. (Tr. 78-80).
McBeth stated that since Petitioner's completion of the mandated programs and his return to work in 2005, he has performed in an exemplary fashion and his performance evaluations have been excellent in all areas. Petitioner is compensated by receiving a commission of twenty to thirty percent on the loans that are brought into his branch. (Tr. 69, 74, 81, 86-87).
McBeth testified that she and Petitioner are personal friends and share two joint bank accounts for their private business dealings. One of the accounts was opened in March or April of 2005 and is used, in part, for investment in real estate. McBeth stated that the employees of United are encouraged to establish investment portfolios and she has similar investment partnerships with other employees. McBeth was interested in doing business with Petitioner because of his experience in construction and development, his political clout, and the fact that he has integrity. (Tr. 85, 89-90, 92-93).
Dr. Stafford Henry
Dr. Stafford Henry, a board-certified psychiatrist, testified by way of evidence deposition that he reviewed records relating to Petitioner's treatment for addictions, contacted people who know Petitioner, and interviewed Petitioner for approximately two and one-half hours on July 27,
2005. Dr. Henry learned of Petitioner's history of substance abuse, his role as primary care-giver for his parents, his in-patient and out-patient treatment programs, his current involvement in the 12-step community, his employment with United International Mortgage Bank, and his approximately one-year abstinence from the use of drugs and alcohol. He noted that the collateral sources of information were consistent with Petitioner's own self-report. (Henry Dep. 14, 24, 26-35).
Dr. Henry described Petitioner as being very forthright in acknowledging the damage he caused his clients and as being genuinely remorseful for his actions. He stated that Petitioner spoke of his commitment to regaining his law license and doing whatever was necessary to achieve that goal. (Henry Dep. 25, 44).
Based on the information he obtained, Dr. Henry diagnosed Petitioner as being in sustained remission from cocaine dependence, alcohol dependence, cannabis abuse and other substance abuse. He further diagnosed Petitioner as having a depressive disorder not otherwise specified. (Henry Dep. 36).
Dr. Henry stated that, given the addictive nature of cocaine, Petitioner will always be at risk for a relapse. He therefore recommended that if Petitioner's law license were to be reinstated, Petitioner should be urine-monitored for approximately one year following his reinstatement. Further, Petitioner should remain involved indefinitely in the 12-step community by maintaining contact with his sponsor and attending meetings at least three times per week. (Henry Dep. 31, 39-40).
Dr. Henry believed Petitioner's prognosis is quite good provided he remains abstinent and adheres to the recommendations. He noted that the fact Petitioner's self-report was consistent with information gleaned from collateral sources bodes well for Petitioner's ability to maintain abstinence. In addition, Petitioner's level of commitment, humility and serenity is consistent
with someone truly in recovery. Dr. Henry believed that Petitioner has a good appreciation of his powerlessness over his addiction. If Petitioner follows the recommendations, Dr. Henry could identify no mental-health related issues that would preclude a safe return to the practice of law. (Henry Dep. 38-39, 44, 36).
Henry Ash testified he retained Petitioner in September 1999 and paid him $3,000 to handle a zoning matter. After one meeting with Petitioner and an alderman, Ash experienced difficulty in contacting Petitioner. On one occasion when Ash was able to speak to Petitioner, Petitioner mentioned that he had some problems with his parents. (Tr. 139-41).
Ash testified that Petitioner never resolved the zoning issue. In March 2000 Ash sent Petitioner a letter requesting a refund. When he did not receive a response, he paid $300 to attorney Elise Dixon, who communicated with Petitioner and worked out a plan whereby Petitioner agreed to make installment payments to Ash. Ash received one payment of $750 in 2001, and has not received any additional payments since that time. He instructed his attorney to contact the ARDC because he wants a refund of the money he paid to Petitioner. (Tr. 142-46).
Aubrey Davis testified he hired Petitioner in connection with a tax deed matter and paid him $8,900. Part of the money was paid to Petitioner directly and part was paid through another attorney. (Tr. 150, 154).
Davis stated that he paid nearly $14,000 to purchase four lots at a tax sale. Petitioner was supposed to obtain tax deeds for the properties but did not do the necessary work within the time period allowed. Davis' subsequent attempts to contact Petitioner by telephone and in person were unsuccessful. Davis stated he lost the properties and the money he paid for them. No documentation was provided to support the exact amount of Davis' loss other than his written
communication to the ARDC wherein he stated that Petitioner's conduct caused him to lose $20,452 in attorney's fees and property. (Resp. Ex. 5; Tr. 150-51, 154, 156, 159).
Davis has not received any refund from Petitioner. He stated he was recently contacted by Petitioner, who offered to make payments on an installment basis. Davis refused the offer because he has no confidence in Petitioner. When questioned further, he stated he would rather receive $500 installments than wait years for a lump sum payment. (Tr. 151-55).
FINDINGS AND CONCLUSIONS
The purpose of a reinstatement proceeding is the same as that of an attorney disciplinary proceeding, that is, to safeguard the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Rothenberg, 108 Ill.2d 313, 484 N.E.2d 289 (1985). A petitioner seeking reinstatement to the practice of law has the burden of proving by clear and convincing evidence that he should be reinstated. In re Richman, 191 Ill.2d 238, 730 N.E.2d 45 (2000); In re Parker, 149 Ill.2d 222, 595 N.E.2d 549 (1992). In considering a petition for reinstatement, the focus is on petitioner's rehabilitation, present good character, and current knowledge of the law. In re Fleischman, 135 Ill.2d 488, 553 N.E.2d 352(1990) ("Rehabilitation is the most important factor in reinstatement proceedings").
Supreme Court Rule 767(f) instructs us to consider the following factors in determining the petitioner's rehabilitation, present good character, and current knowledge of the law:
the nature of the misconduct for which the petitioner was disciplined;
the maturity and experience of the petitioner at the time discipline was imposed;
whether the petitioner recognizes the nature and seriousness of the misconduct;
when applicable, whether petitioner has made restitution;
the petitioner's conduct since discipline was imposed; and
the petitioner's candor and forthrightness in presenting evidence in support of the petition.
Keeping in mind the foregoing factors and the principles articulated by the Court, we now examine the evidence before us to determine whether Petitioner has met his burden of proof.
Nature of Misconduct
The severity of the misconduct leading to an attorney's discipline is an important factor in determining whether reinstatement is warranted. Indeed, the Supreme Court has cautioned that the significance of this factor cannot be minimized by subsequent exemplary conduct. In re Richman, 191 Ill.2d 238, 740 N.E.2d 45 (2000).
The misconduct for which Petitioner was disciplined - neglect, misrepresentation, failure to communicate with clients, failure to refund unearned fees and practicing law without registering with the Commission - was undeniably serious. That misconduct, which was aggravated by the fact that Petitioner had been previously disciplined for neglect, warranted a one- year suspension until further order of court.
Following the imposition of discipline in March 2002, two additional instances of neglect and failure to refund fees came to light. Those additional instances of misconduct, which have been admitted by Petitioner, occurred during the same time period as the misconduct for which discipline was imposed.
In determining whether Petitioner's misconduct was of such a nature as to bar his reentry to the practice of law, we consider the fact that neglect and misrepresentation generally warrant only a moderate suspension. See In re Ring 141 Ill.2d 128, 565 N.E.2d 983 (1990) (six month suspension for neglecting a criminal appeal and making misrepresentations to a client); In re Taylor, 66 Ill.2d 567, 363 N.E.2d 845 (1977) (one year suspension for pattern of neglect). In this
case Petitioner's misconduct occurred during a time when he was burdened with demanding family responsibilities and was suffering from alcohol and substance abuse.
We note that Petitioner's absence from the practice of law has substantially exceeded the suspension period imposed by the Supreme Court for his misconduct. We conclude that, while the serious nature of Petitioner's misconduct deserves careful consideration on our part, it does not pose an impediment to reinstatement in this case.
Maturity and Experience of Petitioner
The second factor we consider is the maturity and experience of Petitioner at the time discipline was imposed. Petitioner was approximately forty-five years old and had been practicing law for nearly fifteen years when he failed to pursue real estate tax matters for his clients. Since much of his practice had been devoted to that type of work, his familiarity with the area of the law was undisputed. We find therefore that Petitioner's maturity and experience at the time of discipline do not weigh in his favor. See In re Fleischman, 135 Ill.2d 488, 497, 553 N.E.2d 352 (1990) (maturity and experience of 40-year-old attorney who had been actively practicing for approximately 20 years weighed heavily against him).
Acknowledgement by Petitioner of his Misconduct
Over the course of a two-day hearing, we heard Petitioner's testimony and observed his attitude and demeanor. He expressed remorse for his misconduct, acknowledged that his behavior was wrong, and recognized that his actions have had devastating effects on other people, including his clients and members of his family. Petitioner's overall demeanor conveyed humility, regret, and a desire to atone for his past mistakes.
Expressions of remorse are typically considered to indicate recognition of misconduct. See In re Parker, 149 Ill.2d 222, 595 N.E.2d 549 (1992). Therefore, as to the question of whether Petitioner recognizes the nature and seriousness of his misconduct, we conclude that he does.
Payment of Restitution
Petitioner's payment of restitution, the fourth factor for our consideration, is problematic. While Petitioner has made full restitution to Kelly and Swan - the two clients whose matters resulted in his discipline - he has not refunded his unearned fees to two other clients whose matters he also neglected. Petitioner admitted he currently owes $2,800 to Henry Ash and approximately $8,900 to Aubrey Davis.
Having listened to the testimony of both Ash and Davis, we conclude that Petitioner's efforts to repay those two clients have been feeble at best. Petitioner clearly was aware of his debt to Ash but, other than an initial payment of $700 in 2001, he has made no effort to reduce his debt or assure Ash that repayment would be forthcoming. Any regular payments, no matter the size, would have impressed us and probably would have satisfied Ash, who expressed frustration that he was unable to communicate with Petitioner for four years and had to retain another lawyer.
As to Davis, we understand that Petitioner's proposal of incremental payments was rejected. Not surprisingly, however, when we pointed out to Davis that waiting for a lump sum payment may take years, he readily consented to installment payments. Given his lack of hesitation when the alternatives were explained to him, we believe Petitioner could have convinced him to accept periodic amounts in lieu of waiting for a total payment.
Restitution is a condition of reinstatement except in those rare instances where repayment to the victims is conclusively established to be an impossibility. In re Schechet, 105 Ill.2d 516, 475 N.E.2d 828 (1985). In the present case, we view Petitioner's repayment strategies, such as they are, as lacking true resolve. While we recognize that he is still in a rebuilding phase as far as his employment income is concerned and therefore may not be able to repay his obligations immediately, we would have preferred to see evidence of incremental payments, no matter how
small. We believe such an effort is possible in light of testimony that Petitioner has been an active investor in real estate and has realized some profit from those investments. Apparently most or all of that profit is being reinvested into additional properties.
Conduct Since Discipline was Imposed
The fifth factor for our consideration is Petitioner's conduct since discipline was imposed. We know little of Petitioner's activities in 2002 and 2003 other than the fact that he was abusing alcohol and drugs, did not file his income tax returns, and was arrested on several occasions. Any improper conduct during that time period appears to have been driven by Petitioner's drug activity and, given his subsequent treatment and efforts to overcome his addictions, will not negatively influence our determination.
After Petitioner's employment in the spring of 2004, he tested positive for drug use and entered a two-week rehabilitation program. Following completion of the program, he again tested positive and was directed by his employer to enter a three-month in-patient program in California, followed by a period of residence at a sober living facility. In early 2005 Petitioner returned to Chicago and his position of employment.
At the time of hearing Petitioner had been responsible for his own treatment program for approximately nine months. We heard undisputed testimony that he has abstained from drug and alcohol use and has been totally committed to living a clean and sober life. He has attended AA meetings on a regular basis and has maintained almost daily contact with his AA sponsor. We also heard very favorable testimony from Petitioner's supervisor concerning his success as a branch manager.
Dr. Henry, while generally very positive concerning Petitioner's ability to maintain his abstinence, stated that given the addictive nature of cocaine, Petitioner will always be at risk for a
relapse. Dr. Henry recommended that if Petitioner's law license were to be reinstated, Petitioner should be urine-monitored for approximately one year following his reinstatement.
While Petitioner's efforts to regain control of his life and become a productive member of society are very impressive and should be applauded, we are concerned that the duration of his recovery has been relatively short. At the time of hearing Petitioner had a 35-year history of substance abuse and only nine months of self-sustained abstinence. We view his recent turn-around as an excellent beginning but, for the protection of the public, we prefer to see a longer period of abstinence with regular monitoring.
As for other conduct since discipline was imposed, the Administrator introduced evidence that in January 2005 Petitioner accepted a check that bore the notation "attorney fee" on the memo line. Having reviewed Petitioner's and Raenee Jemison's explanations for that check, which they assert was intended for the retention of another attorney and which fee, in any event, was ultimately returned, we conclude that the evidence is insufficient to establish that Petitioner accepted the fee for his own services or that he held himself out to be a lawyer. We do believe, however, that Petitioner exercised incredibly poor judgment in accepting the check and then depositing it into his own bank account. At a time when Petitioner was barred from practicing law and indeed was preparing to petition the court for reinstatement, we would expect him to pay close attention to the professional rules and carefully monitor his conduct to avoid any hint of impropriety. Accepting and placing into his own account a check marked "attorney fee" does not meet that expectation.
Petitioner's Candor and Forthrightness
Finally, we consider Petitioner's candor and forthrightness in presenting evidence in support of his petition. The Administrator challenged certain information submitted by
Petitioner, including his compliance with Rule 764, his financial obligations, and his income tax filings, as being inaccurate or misleading.
Petitioner explained that he prepared his petition himself while residing at a drug treatment facility and, to some extent, relied on personal recollection. He stated he did not disclose certain consumer credit accounts that had been placed for collection because those debts did not appear on a credit report that he reviewed. With respect to his representation that he had filed his state tax returns, Petitioner stated he had been in contact with his accountant and believed the accountant was handling the filings. While we believe the foregoing errors are indicative of a general lack of attention to detail in Petitioner's preparation of the petition, we do not believe Petitioner's misstatements demonstrate a willful lack of candor or a specific intent to deceive us. See In re Parker, 149 Ill.2d 222, 595 N.E.2d 549 (1992) (omissions in petition were insignificant in that they were not harmful to attorney and were not willful attempts to conceal information). Similarly, with respect to bank accounts that were opened or had negative activity after the date Petitioner filed his petition, we do not construe his failure to update his petition as a purposeful concealment of information. We accept Petitioner's explanations for the omissions or misstatements and note that he was forthcoming when questioned about any oversights.
While we give little weight to the foregoing errors, we are disturbed by Petitioner's statement that "to the best of his knowledge" he had "fully complied" with the Rule 764 requirements of notification to his clients. During his testimony before this panel, Petitioner confessed that the requisite letters had not been sent to clients following his suspension because he was not familiar with the requirements of Rule 764 at that time. While he explained that he had only three clients at the time he was disciplined and is currently attempting to provide notification to those clients, we view his representation of compliance as an indication of recklessness in the preparation of his petition. (In addition to showing recklessness, Petitioner's
response also impacts another element for our consideration: his knowledge of the law. When asked to provide "all facts relating to [his] compliance with Supreme Court Rule 764," his answer that he had complied "to the best of his knowledge," without taking the necessary steps to determine the specific requirements of the Rule and whether he had in fact complied with it, raises questions not only about his care in preparing the Petition, but also about his willingness or ability to inform himself of the controlling legal principles at issue.)
We are also troubled by Petitioner's failure to disclose his existing tax liabilities to both the state and federal government. Those additional debts, which apparently are of a long-standing nature, are part of the disclosures required by Commission Rule 402. In this case the undisclosed debts are particularly significant because they indicate a history of financial instability and may have an impact on Petitioner's ability to complete his restitution to his clients.
Petitioner acknowledged that he owes approximately $6,000 to the Internal Revenue Service and approximately $6,000 to the Illinois Department of Revenue. He recently entered into an agreement regarding his federal tax liability whereby he will submit a payment of $500 to the IRS each month. As of the date of hearing, he had made one payment in August 2005. While he claimed to have made a second payment in September, he could not substantiate that submission because he had sent the check in late. Regarding his state tax liability, he has not reached any agreement with the agency responsible for collection of that debt.
Having observed Petitioner and listened to his testimony, we conclude that he did not intend to deceive us in his presentation of information. Nevertheless, he was guilty of enough omissions and misstatements in his petition to cause us some concern regarding this element. In assessing petitions for reinstatement, we fully expect a level of care, candor and judgment commensurate with the gravity of the request.
Consideration of the foregoing factors is intended to aid in our determination of Petitioner's rehabilitation, present good character and current knowledge of the law. Rehabilitation is "a matter of one's ‘return' to a beneficial, constructive and trustworthy role." In re Anglin, 122 Ill.2d 531, 537, 524 N.E.2d 550 (1988); In re Wigoda, 77 Ill.2d 155, 159, 395 N.E.2d 571 (1979).
While Petitioner engaged in serious misconduct which could not be attributed to either immaturity and inexperience, that misconduct was not so egregious as to bar his reentry to the practice of law. We believe he fully recognizes the nature and severity of his acts as well as the consequences of those acts. With the exception of his disclosure of existing tax liabilities and his compliance regarding Rule 764, he was generally candid and forthright in his acknowledgement of his past behavior and in his presentation of information.
Several significant factors, however, weigh against Petitioner's reinstatement at this time. First, we are troubled by his marginal efforts at restitution to Ash and Davis. While we gave some consideration to recommending reinstatement conditioned upon a repayment plan, we have concerns about his ability to adhere to a repayment schedule given his additional debts that were not disclosed in the petition. See In re Livingston, 133 Ill.2d 140, 549 N.E.2d 342 (1989) (reinstatement denied because attorney had not returned unearned fee and had significant debts, including tax liabilities); In re Powers, 122 Ill.2d 18, 521 N.E.2d 921 (1988) (reinstatement denied due to unpaid financial obligations and omissions in the petition).
Second, we do not believe Petitioner's recovery from his addictions has been of sufficient duration to allow us to conclude that he has made a clear showing of rehabilitation. Uppermost in our minds is the protection of future clients and we do not feel confident at this time that Petitioner's return to practice would be risk-free. See In re Roberts, 92 CH 192, M.R. 8322
(September 23, 1994) (reinstatement denied where attorney had made "good progress" toward recovering from alcoholism and other impairments but recovery was not yet complete).
Finally, in determining whether Petitioner should be reinstated, we consider his current knowledge of the law. No evidence was presented that Petitioner regularly reviews legal journals or advance sheets, attended seminars in his area of interest, or even reviewed the Professional Rules of Conduct during his period of suspension. While reinstatement rarely, if ever, turns on this factor, it is, as we stated above, a legitimate concern in this case in light of Petitioner's admitted lack of familiarity with the notification requirements of Supreme Court Rule 764.
We would like to emphasize that we do not view the foregoing deficiencies as insurmountable; rather, we believe they can be overcome with additional time. Indeed, had we been faced with a more carefully prepared petition accompanied by an additional year of abstinence, a record of regular payments toward outstanding liabilities, and a demonstrated effort to maintain a current knowledge of the law, we would not hesitate to recommend reinstatement.
Given Petitioner's progress to date and his commitment toward achieving reinstatement, we believe he ultimately can be successful in reaching that goal. To that end, we encourage him to present a subsequent petition if the present one is withdrawn or denied by the Supreme Court.
For the reasons stated, we find that Petitioner has not met his burden of proving his rehabilitation, good character, and current knowledge of the law by clear and convincing evidence. We therefore recommend that Petitioner Rodney David Wellington's Petition for Reinstatement be denied at this time.
Date Entered: January 4, 2006
|Stuart J. Chanen, Chair, with Brian W. Bell and Kenneth A. Peters, concurring.|