Filed February 14, 2007
In re Tina Marie Olton
Commission No. 05 SH 27
Synopsis of Review Board Report and Recommendation
Tina Marie Olton was charged in a one-count complaint with misconduct related to her representation in guardianship and estate matters. The complaint alleged that Olton failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3, of the Illinois Rules of Professional Conduct, failed to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information, in violation of Rule 1.4(a), failed to explain a matter to the extent reasonably necessary to permit her client to make informed decisions regarding her representation, in violation of Rule 1.4(b), failed to promptly deliver funds or other property that a client was entitled to receive, in violation of Rule 1.15(b), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4), conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), and conduct that tended to defeat the administration of justice or 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. She denied the allegations of misconduct.
The Hearing Board found that Respondent had committed all of the misconduct charged in the complaint, except that she had not engaged in conduct prejudicial to the administration of justice. The majority of Hearing Board recommended that Respondent be suspended for sixty days, to be stayed in its entirety by a six-month period of probation, subject to certain conditions. The dissenting panel member found that Respondent was not a suitable candidate for probation, and recommended that she be suspended for sixty days, or, if the Supreme Court were to find that probation was appropriate, that she be suspended for ninety days with the final thirty days stayed by six months of probation.
The case was before the Review Board on the Administrator's exceptions. She challenged the Hearing Board's finding that the charge that Respondent had engaged in conduct prejudicial to the administration of justice had not been sufficiently proved and objected to the Hearing Board's recommended sanction. She suggested instead that Respondent should be suspended for ninety days. Respondent objected to the Hearing Board's finding that she had engaged in dishonest and deceitful conduct, and suggested that she should be censured if the Review Board did not agree with the Hearing Board's recommendation of probation.
The Review Board affirmed the Hearing Board's findings of fact and findings of misconduct. It found in addition that the Administrator met her burden of proof in establishing that Respondent engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5). The Review Board recommended that Respondent be suspended from the practice of law for a period of sixty days.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
TINA MARIE OLTON,
Commission No. 05 SH 27
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant filed a one-count complaint against Respondent-Appellee Tina Marie Olton, charging her with misconduct related to her representation in guardianship and estate matters. The complaint alleged that Olton failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3, of the Illinois Rules of Professional Conduct, failed to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information, in violation of Rule 1.4(a), failed to explain a matter to the extent reasonably necessary to permit her client to make informed decisions regarding her representation, in violation of Rule 1.4(b), failed to promptly deliver funds or other property that a client was entitled to receive, in violation of Rule 1.15(b), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4), conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), and conduct that tended to defeat the administration of justice or 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. She denied the allegations of misconduct.
The Hearing Board found that the Administrator proved by clear and convincing evidence that Respondent committed all of the misconduct charged in the complaint, except that she did not engage in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5). Due to the seriousness of Respondent's misconduct, the Hearing Board agreed that a sixty-day suspension was appropriate.
The majority of the panel found, however, that Respondent's misconduct was related to deficiencies in the overall management of her law office. It therefore recommended that the suspension be stayed in its entirety, and Respondent be placed on probation for six months, subject to several conditions.
The dissenting panel member found that Respondent's misconduct was not connected in any way to her lack of management skills. Due to the "web of deceit" spun by Respondent concerning one of the neglected matters, which lasted for a period of several years, he did not believe that the facts of the case warranted probation. The dissenting panel member recommended that Respondent be suspended for sixty days, or if the Supreme Court were to find that probation was appropriate, that she be suspended for ninety days with the final thirty days stayed by a six-month period of probation.
The case now comes before the Review Board on the exceptions of the Administrator. She argues that the evidence was sufficient to prove that Respondent engaged in conduct prejudicial to the administration of justice, and suggests that a ninety-day suspension is appropriate. Respondent contends that the evidence was insufficient to find that she engaged in dishonest or deceitful conduct and that we should affirm the Hearing Board majority's recommended sanction. If we find that probation is inappropriate, Respondent suggests that she should be censured.
The facts are briefly summarized below for purposes of this report. Further details can be found in the Hearing Board's Report and Recommendation.
The Guardianship Case
In November 1992, Respondent was retained by Robert and Peggy Preusler to represent Robert in a guardianship proceeding concerning his mother, Vivian Preusler. Robert, who resided in Florida, was Vivian's only child. Respondent filed a petition for guardianship in December 1992. In re the Matter of the Estate of Vivian Preusler, a disabled person, Kankakee County case number 92 P 403. The petition was granted, and Robert was appointed the guardian of Vivian's person. Municipal Trust & Savings Bank (Municipal) was appointed the guardian of her estate. Robert Edwards, a vice president and trust officer of Municipal, agreed to act as guardian of the estate on Municipal's behalf.
According to the amended inventory filed on August 3, 1993, Vivian's estate contained assets valued at approximately $413,915.50. Those assets included two rental homes located in Momence, Illinois, which had a market value of $42,072 as of March 31, 1993. As part of his duties as guardian of the estate, Edwards collected rents and managed the properties.
In 1996 Edwards ceased to be employed by Municipal and became a trust officer at Pontiac National Bank (Pontiac). He continued to act as guardian of Vivian's estate, although no court order appointing a guardian other than Municipal was ever sought or obtained. Edwards filed annual accountings and reports for the period from December 31, 1992 through August 31, 1996.
The Estate Proceedings
Vivian died on November 8, 1997. Although Vivian's guardianship estate remained open, on January 8, 1998, Respondent filed a petition for probate of her will and for
letters testamentary. In re the Matter of the Estate of Vivian Preusler, deceased, Kankakee County case number 98 P 5. The following day, Respondent and Robert Preusler were appointed as co-executors of Vivian's estate.
During the months that followed, the Preuslers first became aware of a number of problems related to Edwards' performance as guardian. The rental properties were in very poor condition. The pipes had burst at one location, and the house had been flooded. The insurance company had cancelled the policy on that property, and coverage had lapsed on the other. Rents had not been collected. There were questions concerning other assets of the estate. On March 11, 1998, Peggy wrote Respondent to discuss those issues, commenting that "if you agree, we would like to consider suing Pontiac Bank for the mismanagement of the account." According to Peggy's notes of her conversation with Respondent on March 20th, Respondent did agree. The Preuslers remembered the claim for damages agreed upon in the proposed lawsuit as $100,000.
The Mismanagement Claim
In an effort to get Edwards to account for his actions as guardian, Respondent filed a motion for final accounting in the guardianship proceeding on May 18, 1998. On June 5, 1998, the court ordered Edwards, Pontiac and Municipal to file a final accounting by July 15, 1998. Only Pontiac complied with the order.
After reviewing the information from Pontiac, the Preuslers had even more questions. On August 17, 1998 they wrote Respondent, listing their concerns. These included Edwards' failure to pay the property taxes on Vivian's Florida property or to complete her income taxes, his failure to locate the titles to the autos, and the damage to the rental properties. The Preuslers had obtained an estimate for repairs to the properties, which totaled $50,545.1
On September 24, 1998, Respondent sent the Preuslers a draft of a letter to Sarah Grove at Pontiac Bank concerning "issues or questions which she may be able to resolve." These consisted of twelve points raised by the Preuslers in their letter of August 17th. Respondent stated in her letter,
The remaining issues deal more specifically with mismanagement and should be the subject of a complaint. When we receive our answers from Sarah Grove, we will be able to determine whether any of these items should be included in that complaint or should be raised in the form of objections to the accounting. I will keep you advised.
On January 2, 1999, Peggy sent Respondent a fax that asked in part, "[N]ow that we are in 1999, when will we proceed with the lawsuit for accounting from Edwards, Pontiac, Municipal and the lawsuit for mismanagement against Edwards, Pontiac?" Respondent faxed back this reply on January 8, 1999: "In the next few weeks." Respondent's bill to the Preuslers for the period ending February 19, 1999 included charges for 2.5 hours of research concerning mismanagement issues and 3.5 hours for preparation of a "complaint of mismanagement." Peggy was not surprised by the charge. She thought that the mismanagement lawsuit was going forward.
During the next five years, there were several communications between the parties that the Preuslers believed pertained to the mismanagement lawsuit. According to Peggy, she received a voicemail message from Respondent on March 19, 1999, stating that the accounting case was set for status on March 31, 1999. Respondent did not reply to Peggy's two requests for further information that followed, but in a conversation with Robert on August 18, 1999, mentioned a court date of July 20, 1999. Peggy sent a fax to Respondent the following day, summarizing their conversation. The fax stated in part, "3. Court date of 7/20/99 - No representation of Bob Edwards. You have filed for ‘gathering of info' due October 28th. We're
asking for $100,000—damage to houses + loss of rent + management fees + your fees."
As both Robert and Peggy were employed, Peggy handled the majority of the correspondence and telephone calls concerning the estate, since it was easier for her to do so from her office. In or about February 2000, she contacted Michael A. Reid, a trust officer at Pontiac Bank, concerning dividend payments belonging to the estate. Apparently, she also mentioned the mismanagement suit. On February 5, 2000, Reid sent a fax to Respondent concerning the estate, which stated in part,
…. Mrs. Preusler informed me that a court date is set sometime this month regarding litigation by the Estate against Pontiac National Bank. This was the first I heard of such litigation. If this is true, would you please fax a copy of the notice directly to my attention …. as soon as possible ….
According to Peggy, she spoke to Respondent in March 2000, who told her that Edwards had appeared in court on February 29th, and had been given twenty days to "review and reply." This was followed by several years of purported continuances, beginning with a judge who was unavailable on the March 20th court date, so that the case was reset for April 25th. In September 2000, Respondent advised the Preuslers that the court date would be after the first of the year. On April 16, 2001, Respondent told Peggy that the judge was retiring, and the case was postponed until May, when another judge would be assigned.
In February 2002, Peggy received a message from Respondent stating that the case was set for March 22nd. In June of that year, Respondent advised her that the case would be heard in September. In September, Respondent said that the next court date was in May 2003. In April 2003, according to Respondent, it was continued until July or August. On June 16, 2003, Respondent changed that to sometime in September. That fall, Peggy received another message from Respondent stating that the case would not be heard until January 2004. Respondent's secretary, Jennifer Thiesen, remembered Peggy calling the office, probably in
December 2003, to find out when she and her husband needed to be present so that they could make airline reservations.
By January 2004, the Preuslers were tired of the constant delays in the case. Peggy estimated that she attempted to reach Respondent more than twenty times that month, but did not receive a return phone call. In February, Robert took over making the calls as his wife had become frustrated by Respondent's lack of response.
When Respondent did not return Robert's calls either, the Preuslers began to have concerns about their case. Robert called the Kankakee County courthouse and spoke to a woman in the clerk's office. She advised him that there were only two cases filed in which a Preusler was a party, Vivian's guardianship case and the estate matter. There had been no activity in either one since 1998. At the clerk's suggestion, Robert contacted a neighboring county in which Pontiac Bank was located, but the mismanagement suit had not been filed there, either.
At this point Robert called Respondent at least five or six times, leaving his name and phone number and a message that it was import that he speak to her. When he still received no return call, Robert obtained the name of the president of the Kankakee County Bar Association, Roger Elliott, and asked for his help. Elliott referred Robert to attorney Glen Barmann, who agreed to contact Respondent. Respondent remembered Barmann advising her to call the Preuslers, as they were "really, really upset." Respondent apparently made an attempt to reach Robert, but they did not speak again. On May 17, 2004, after she received notification that the Preuslers had retained another attorney, Respondent filed a motion to withdraw as Robert's attorney and as co-executor in the estate proceeding. The motion was granted on June 28, 2004.
Upon receiving the motions to withdraw, Robert wrote Respondent, directing her to surrender all information, items and evidence in her possession concerning his mother. This
included a pouch containing coins collected by Robert's father, which Respondent had obtained as co-executor of the estate, and a videotape taken by Skimerhorn Investigations, in or about December 1998, documenting the poor condition of the Momence rental property for purposes of the mismanagement lawsuit. Despite a diligent search, Respondent was unable to locate either item.2
Initially, the Administrator argues that the Hearing Board erred in finding that she failed to provide sufficient proof that Respondent violated Rule 8.4(a)(5). In a disciplinary proceeding, the Administrator has the burden of proving the misconduct charged by clear and convincing evidence. In re Imming, 131 Ill.2d 239, 250, 545 N.E.2d 715, 137 Ill. Dec. 62 (1989). Factual findings of the Hearing Board must be affirmed unless they are against the manifest weight of the evidence. In re Witt, 145 Ill.2d 380, 390, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991); Leonardi v. Loyola University, 168 Ill.2d 83, 100, 658 N.E.2d 450, 212 Ill. Dec. 968 (1995). However, the Hearing Board's legal conclusions are not binding, but are subject to de novo review. In re Discipio, 163 Ill.2d 515, 527, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994).
In order to find that Respondent engaged in conduct prejudicial to the administration of justice, we must conclude that there was clear and convincing evidence of a detrimental impact on the judicial process. In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840, 148 Ill. Dec. 243 (1990); In re Stern, 124 Ill.2d 310, 315, 529 N.E.2d 562, 124 Ill. Dec. 581 (1988). We need go no further than the guardianship case to find a violation of the rule.
Vivian Preusler died in November 1997. In June 1998, Respondent obtained a court order requiring Municipal, Pontiac and Bob Edwards to file a final accounting and report, which were necessary before the guardianship proceedings could be closed.
Only Pontiac complied with the order. On July 27, 1998, Respondent wrote Municipal and Edwards, enclosing another copy of the order and reminding them that the accounting was twelve days past due. She warned that the letter would serve as her final request for compliance.
Respondent took no further action concerning the guardianship case. The case was still open at the time of the hearing in this matter, which was almost eight years after Vivian's death.
"An attorney owes a duty to the court to aid the expeditious administration of justice." In re Smith, 168 Ill.2d 269, 290, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995). This includes the timely filing of documents that are a necessary predicate to the final resolution of the case. Id. In Smith, the court found that respondent's failure for more than a year to file the transcript of the prove-up hearing, so that the court could enter the judgment of dissolution of marriage in the case, amounted to conduct that prejudiced the administration of justice. Id. We determine that Respondent's failure for almost six years to seek enforcement of the order for accounting that she had previously obtained did so as well. We conclude that there was clear and convincing evidence in this case that Respondent engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5).
Respondent objects to the Hearing Board's finding that by advising the Preuslers of several non-existent court dates in a non-existent case, Respondent sought to deceive her clients and acted with dishonesty. She does not take issue with the Hearing Board's finding that the Preuslers were credible witnesses, who offered believable testimony, but suggests that her testimony was credible also.
According to Respondent's version of these events, this was a misunderstanding that resulted from her failure to be "clear." The Preuslers believed that their communications with Respondent related to the mismanagement issues, while Respondent was referring to issues concerning the accounting. She had initially intended to file a mismanagement suit, and had done research for and preparation of the complaint, but then changed her mind. Respondent thought that she had communicated her change in position to her clients, but was unable to produce the letter that she claimed to have sent to them. She denied ever telling them that the mismanagement case had been filed, or telling them of specific court dates.
The Hearing Board found Respondent's testimony to be unbelievable and unconvincing, finding instead that she had acted dishonestly and with the intent to deceive the Preuslers. Whether Respondent acted with dishonest and deceitful 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). We must give deference to all of the Hearing Board's factual determinations, but particularly those concerning the credibility of a witness, as the Hearing Board was able to observe Respondent's testimony and evaluate its reliability. 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).
After reviewing the evidence, we conclude that neither the Hearing Board's finding that Respondent was not a credible witness, nor that she acted with deceitful and dishonest intent was against the manifest weight of the evidence. We affirm the Hearing Board's finding that Respondent's misconduct violated Rule 8.4(a)(4).
The final issue is the appropriate sanction. The majority of the Hearing Board has recommended a suspension of sixty days, stayed in its entirety by a six-month period of
probation, subject to several conditions. The dissenting panel member would suspend Respondent for sixty days. Both recommendations are advisory only. In re Imming, supra, 131 Ill.2d at 260, 545 N.E.2d 715, 137 Ill. Dec. 62.
In making its own recommendation, the Review Board must consider the particular facts and circumstances of this case, yet keep in mind that the sanction imposed should be generally consistent with those imposed for similar misconduct. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). The purpose of the discipline recommended must not be to punish the Respondent, but to protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach. In re LaPinska, 72 Ill.2d 461, 473, 381 N.E.2d 700, 21 Ill. Dec. 373 (1978).
Sanctions imposed in cases involving neglect range from censure to disbarment. See In re Ackermann, 99 Ill.2d 56, 66, 457 N.E.2d 409, 75 Ill. Dec. 415 (1983). In this case, as the Hearing Board determined, Respondent neglected three cases—the guardianship, the estate case and the mismanagement proceeding—over a period of several years. She knowingly and repeatedly provided false information to the Preuslers, failed to keep them sufficiently informed about their cases or return their calls, and lost their property. Giving particular weight to the "elaborate blanket of lies" woven by Respondent, to use the description of the dissenting member of the Hearing Board, we find that a period of suspension is required. When suspension is the appropriate sanction for neglect of a legal matter, its length depends on the aggravating and mitigating factors presented. In re Samuels, 126 Ill.2d 509, 529, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989).
The mitigating evidence and character witnesses Respondent presented were impressive. Respondent has provided a great deal of service to her community since opening her
own practice in 1983. She had been president of the Society of Women in Law for several years at the time of the hearing, and helped raise funds for their scholarship program. She was president of the Momence Chamber of Commerce for five years. She also gave her time and money to other local civic organizations, such as the Lions Club, Junior League, Jayettes and Zonta, a professional women's organization.
Respondent apparently had obtained a grant and for three or four years, taught a class in the community program at Kankakee Community College on how to open a business. She was on Prairie State Legal Service's pro bono panel, and had been their Volunteer Attorney of the Year in 2002. She also did pro bono work for clients referred to her by local churches.
Four witnesses testified to Respondent's reputation for honesty, and to the high regard in which she is held by the legal community. They included the Public Guardian of Kankakee County, a circuit court judge and an attorney, all of whom had known Respondent for more than twenty years. Additionally, Respondent has not previously been disciplined, she was cooperative and expressed remorse, and she ultimately accepted responsibility to some degree. Her misconduct did not result from corrupt or pecuniary motives.
We cannot ignore the evidence in aggravation, however, particularly the fact that Respondent's neglect of the Preuslers' legal matters and her dishonesty and deception occurred over a period of several years. Her misconduct did not result from her lack of experience, or from any personal problems. Respondent failed to safeguard the Preuslers' property. She was less than forthright when testifying before the Hearing Board.
We have examined the numerous cases cited by both parties, and have found three to be particularly relevant to our determination that a period of suspension is warranted:
In In re Levin, 91 CH 392 (Review Board, December 6, 1993), approved and confirmed, No. M.R. 9823 (May 19, 1994), respondent was a sole practitioner who allowed a case to be dismissed. He attempted to keep his client from discovering this by claiming that he had negotiated a settlement, and created a phony disbursement statement and general release form. The Review Board described respondent's calculated deception of his client as "reprehensible," noting that he was an experienced attorney who completely neglected the case and then sought to hide the fact that he had done so. Levin was suspended for ninety days.
At the time that the respondent in In re Levin, 77 Ill.2d 205, 395 N.E.2d 1374, 32 Ill. Dec. 870 (1979), undertook representation of a plaintiff in a personal injury case, one of the defendants recently had been dismissed from the lawsuit because of the plaintiff's failure to answer his interrogatories. Respondent did not attempt to vacate the dismissal, but claimed to have reached a settlement with the attorney for the remaining defendant shortly before that attorney died. The deceased attorney had written nothing in his client's file to indicate that a settlement had been reached. Respondent did not act with diligence in attempting to complete the alleged settlement, and did not respond to the repeated attempts by the deceased attorney's firm to take the plaintiff's deposition. Eventually, the case was dismissed. The plaintiff testified that he learned of the dismissal from another attorney a year later. Without indicating what aggravating or mitigating evidence was presented, the court suspended the respondent for ninety days.
In In re Tabor, 01 CH 08 (Review Board, June 25, 2002), approved and confirmed in part, No. M.R. 18318, (November 26, 2002), respondent failed to appear at a status hearing regarding a worker's compensation claim, and the matter was dismissed. He filed a motion to vacate the dismissal, but never set the motion for hearing and eventually, the case
became time-barred. Respondent did not tell his client and did not return her calls. She was advised of the dismissal by the ARDC. The only mitigating evidence presented was respondent's acceptance of responsibility, his lack of prior misconduct and his lack of dishonest motive. Respondent was suspended for sixty days and until he was released from the malpractice judgment his client had obtained against him.
We consider these cases relevant to our determination of the appropriate sanction, although they each find only one instance of neglect, because of the close connection among the three matters neglected by Respondent. We distinguish this situation from the usual case involving three neglected matters as here, they involve the same clients and are closely related proceedings. While a pattern of neglect exists concerning the Preuslers' cases, there is no evidence that it extends beyond them. There is no evidence that Respondent neglected any other case during her 25 years in practice. We view this as an indication that Respondent's misconduct is an aberration in an otherwise very respectable career and is not likely to recur, which is an additional mitigating factor. In re Michod, 97 CH 99 (Review Board, November 29, 2000), petitions for leave to file exceptions denied, No. M.R. 17317 (March 22, 2001).
While the sanction that we recommend should be generally consistent with those imposed for similar misconduct, the merits of this case must also be considered. In re Andros, 64 Ill.2d 419, 425-26, 356 N.E.2d 513, 1 Ill. Dec. 325 (1976). Upon consideration of the particular circumstances of this case, namely that the mitigating factors are much more extensive than in Levin, Levin or Tabor, we conclude that Respondent deserves a lesser sanction. Therefore, we have also considered two additional cases.
In In re Carlson, 93 CH 643 (Review Board, November 3, 1995), Respondent's petition for leave to file exceptions denied; Report and Recommendation of the Review Board
approved and confirmed, No. M.R. 11984 (March 26, 1996), respondent was found to have neglected three legal matters, two of which concerned the same client. In all three instances, he "undertook to represent the client in litigation, failed to take actions necessary to maintain the viability of the action, did not advise the clients as to the status of their matters and failed to withdraw from representation…." Id. The cases were ultimately dismissed. There was no evidence of the extensive mitigation, nor the extensive deception of this case. Respondent was suspended for sixty days.
In In re Towles, 97 CH 90 (Review Board, August 19, 1999), Administrator's petition for leave to file exceptions denied; Report and Recommendation of the Review Board approved and confirmed, No. M.R. 16173 (November 22, 1999), Respondent neglected two cases and committed other misconduct, including engaging in conduct that involved dishonesty, fraud, deceit or misrepresentation. In the first matter, respondent filed a brief in a criminal case in which his notice of appeal had not been timely filed. The appellate court dismissed the appeal for lack of jurisdiction, but respondent informed his client that the court had decided against him on the merits. Respondent obtained additional funds from his client to file a petition for writ of habeas corpus, but never did so. In the second matter, respondent was retained to contest the validity of an indictment, as his client was facing deportation after pleading guilty to the charges that the indictment contained. There was no evidence that respondent did any work whatsoever on his client's behalf, but he claimed credit for getting the deportation proceedings terminated when that actually had been accomplished by another attorney. Respondent also made false statements to the Administrator concerning his involvement in the deportation matter. He was suspended for sixty days.
We determine that a suspension of sixty days is appropriate here. Under the circumstances of this case, however, we find that Respondent is not a suitable candidate for probation for two reasons.
Probation may be useful where an attorney's law practice needs to be monitored or limited, rather than suspended or revoked, in order to allow her to improve the case management skills necessary for a successful practice. In re Jordan, 157 Ill.2d 266, 275, 623 N.E.2d 1372, 191 Ill. Dec. 486 (1993); In re Smith, supra, 168 Ill.2d at 297, 659 N.E.2d 896, 213 Ill. Dec. 550. The Report and Recommendation of the Hearing Board identified several areas where Respondent's practice needed improvement. She needed to adequately track telephone calls, make sure that they were promptly returned, and determine the circumstances under which her clients would be billed for them. She needed to adequately track the status of cases and keep client better informed, and needed better procedures to avoid losing clients' property and documents from their files.
No evidence was presented that any of these problems ever had occurred in any case other than the Preuslers'. Additionally, Respondent testified that she already has made changes to her office procedures, such as the manner in which she inventories client's items and by setting aside a particular time devoted to returning calls, to keep this situation from ever happening again. It is not clear that, in this case, probation would serve the purposes for which it is intended. In re Tyler, 98 CH 74 (Review Board, May 17, 2000), approved and confirmed, No. M.R. 16873 (September 22, 2000).
More importantly, the Hearing Board found that Respondent's misconduct was a deliberate course of conduct that occurred over a period of several years. It found that she was dishonest and deceitful in her dealings with the Preuslers, and less than candid in her testimony
in these proceedings. Intentional misconduct and dishonesty cannot be monitored for compliance or improvement and therefore, probation is not a suitable sanction. In re Wiard, 99 CH 50 (Review Board, August 31, 2001), Administrator's petition for leave to file exceptions allowed, No. M.R. 17755 (January 28, 2002), Respondent's motion for reconsideration allowed, No. M.R. 17755 (March 26, 2002); In re Tyler, supra, 98 CH 74 (Review Board, May 17, 2000), approved and confirmed, No. M.R. 16873 (September 22, 2000).
Respondent has committed serious misconduct, which she has not entirely acknowledged. Noting again our confidence that Respondent's misconduct is not likely to be repeated, we conclude that a sixty-day period of suspension will sufficiently impress upon others the significant repercussions that will result from this type of misconduct, and will best serve the underlying purposes of our disciplinary process, namely to safeguard the public, maintain the integrity of the legal profession, protect the administration of justice from reproach. In re Discipio, supra, 163 Ill.2d at 528, 645 N.E.2d 906, 206 Ill. Dec. 654. We therefore affirm the Hearing Board's factual findings and finding of misconduct, and find in addition that the Administrator met her burden of proof in establishing that Respondent engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5). We recommend that Respondent-Appellee Tina Marie Olton be suspended from the practice of law for a period of sixty days.
Date Entered: February 14, 2007
Terrence V. O'Leary
1The rental properties were sold in June 1998 for $26,000, almost forty percent less than their market value in 1993.
2Although Respondent speculated that the items had been taken by a disgruntled former employee, some coins and videotapes were located in the back of a desk drawer following the hearing. The parties agree that they have since been returned to the Preuslers.