Filed April 4, 2008
In re Daniel Michalczyk Starr
Commission No. 06 CH 78
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) failed to consult with a client as to the means by which the objectives of representation are to be pursued; 2) failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; 3) represented multiple clients in a single matter without explaining the implications of the common representation and the advantages and risks involved; 4) represented a client where the representation of that client would be directly adverse to another client or to a third person or by the lawyer's own interests; 5) engaged in conduct prejudicial to the administration of justice; and 6) engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: Rules 1.2(a), 1.4(b), 1.7(a), 1.7(b), 1.7(c), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
DATE OF OPINION: April 4, 2008.
HEARING PANEL: John A. Guzzardo, Chair, Ziad Alnaqib and Marshall R. Rowe.
RESPONDENT'S COUNSEL: Jon A. Duncan and Donna Moeller.
ADMINISTRATOR'S COUNSEL: James A. Doppke.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
DANIEL MICHALCZYK STARR,
Commission No. 06 CH 78
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on November 7, and December 19, 2007, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission ("ARDC") before the Panel of John A. Guzzardo, Chair, Ziad Alnaqib and Marshall R. Rowe. James A. Doppke represented the Administrator of the ARDC. Respondent appeared and was represented by Jon A. Duncan and Donna Moeller.
On November 13, 2006, the Administrator filed a two-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Administrator alleged that Respondent engaged in a conflict of interest in two client matters. Respondent filed an Answer to the Complaint admitting some of the factual allegations, denying some of the factual allegations, and denying all allegations of misconduct.
The Administrator presented the testimony of two witnesses, and called Respondent as an adverse witness. The Administrator also presented Exhibits 1-26 which were admitted into
evidence. Respondent testified on his own behalf, and presented the testimony of six witnesses, and presented Exhibits 1-27, which were admitted into evidence.
In April 2004, Respondent agreed to represent Rufus Sparks and Tinika Sims, who were defendants in a lawsuit seeking possession of the property located at 550 Saginaw Avenue in Calumet City. Sparks met with Respondent and told him that Sims was his girlfriend. The plaintiff in the lawsuit was Mortgage Electronic Registration Systems (MERS), which was represented by Michael Fisher. Sparks paid Respondent a $1,000 fee. On April 26, 2004, Respondent filed an appearance and jury demand on behalf of Sparks and Sims. At the time he entered his appearance, Respondent had not spoken to Sims and had no writing from Sims authorizing him to act on her behalf.
On May 3, 2004, Respondent appeared in court on behalf of Sparks and Sims. The court set a briefing schedule on MERS's motion for summary judgment and continued the matter to June 3, 2004. On June 3, 2004, Respondent appeared in court on behalf of Sparks and Sims. Sims had retained attorney Mark Tillman, who was also in court on behalf of Sims.
Mark Tillman is an attorney. On May 19, 2004, he agreed to represent Sims in a possession action. Sims had been renting a house with the option to buy from Sparks. She had paid $5,000 as a down payment, and was paying $1,500 per month. (Tr. 79-80). Sims told him that there was a motion for summary judgment pending, and she explained that she needed more time to move. (Tr. 80-81). On June 3, 2004, Tillman filed an "additional appearance" because he assumed that Sims had entered her appearance in the case. He did not know if another
attorney had appeared on her behalf in the matter. (Tr. 82-83, 103; Resp. Ex. 9). Also on June 3, 2004, he filed a response to the motion for summary judgment. (Tr. 83, 104-105; Resp. Exs. 9, 10). Tillman recalled that Respondent was also in court on that date. (Tr. 84). The matter was continued to June 7, 2004. (Tr. 88). After the hearing, Tillman spoke with Fisher and Respondent, and learned that Sparks was not the owner of the property. (Tr. 113-14).
On June 7, 2004, Tillman, Starr, Fisher and Sims appeared in court, and Tillman asked the court to give Sims additional time to move out of the property. (Tr. 88-89, 129). There was some confusion in the courtroom because Respondent stated that he represented Sims and Sparks, when Tillman represented Sims. (Tr. 90). Ultimately, summary judgment was entered against Sims, and she was given sufficient time to move. (Tr. 90-94, 132-33). Tillman was aware that Sims was precluded from pursuing a claim against Sparks in the context of the pending lawsuit, but could do so in a separate action. (Tr. 131-32).
In April 2004, Respondent agreed to represent Sparks and Sims in the possession action involving the Saginaw property. Respondent had not represented Sparks in any case prior to this one. (Tr. 147-48, 402-403). Before April 26, 2004, Respondent spoke with Sparks about the case over the telephone, and Sparks told Respondent that Sims was his girlfriend and they lived in the property. (Tr. 148, 403-404). On April 26, 2004, Sparks went to Respondent's office at approximately 9:15 a.m., and the matter was scheduled to be heard in court that morning at 9:30 a.m. Respondent filed a handwritten appearance and jury demand on behalf of Sparks and Sims, and went to the court call. At that time, Respondent had had no contact with Sims. (Tr. 149, 405-412; Resp. Ex. 4). Sparks paid Respondent $1,000 for his fee. (Tr. 148). The only
telephone number Respondent had to contact Sparks or Sims was Sparks' cell phone number. (Tr. 415).
Respondent appeared in court on May 3, 2004, and an order was entered setting a briefing schedule for the plaintiff's motion for summary judgment and scheduling the next court date for June 3, 2004. (Tr. 410-13; Resp. Ex. 7). On June 3, 2004, prior to the case being called by the court, Respondent spoke with Fisher and asked that he allow Sims 28 days to leave the property. Fisher would not agree to the proposal. Respondent had not spoken to Sims before making this offer. (Tr. 153-54, 430-32).
Also on June 3, 2004, Respondent, Fisher and Mark Tillman appeared in court. Neither Sparks nor Sims was there. (Tr. 424). Before the case was called, Respondent reviewed the court file and learned that he had a defense for Sparks and Sims. The pleadings alleged that Sims believed Sparks was her landlord, Sparks did not live at that address, and Sparks was not properly served. Accordingly, Sparks should be dismissed from the case and because Sparks was dismissed, the case had to be refiled, so Sims also had a defense. Respondent also realized that the notice demanding possession was defective. (Tr. 426-29, 455-56). Tillman told Respondent that he represented Sims and had prepared a response to the motion for summary judgment. Respondent told Tillman that he had a defense for both Sparks and Sims. (Tr. 432-33). The court gave Respondent additional time to file a response to the motion for summary judgment and continued the matter to June 7, 2004.
After the court appearance, Respondent prepared a response to the motion for summary judgment, sent a copy to Fisher, and filed it with the court the next morning. (Tr. 435). Before the next court date, Respondent called Sparks, but not Sims. (Tr. 436-37).
At the June 7, 2004, prior to appearing in court, Sims instructed Respondent to take no further action on her behalf, and the court told Respondent that he could no longer make any arguments on behalf of Sims. Tillman was present to represent her. That was the first time Respondent spoke with Sims. Respondent reiterated to Tillman that there were defenses that would dismiss the case which were applicable to Sparks and Sims. (Tr. 155-56, 162, 441-42, 448-50). When the case was called, Sims told the judge that she wanted Tillman to represent her. Respondent made jurisdictional arguments on behalf of Sparks and Sims. The court told Respondent to stop making arguments on behalf of Sims, and Respondent stopped doing so. (Tr. 451-53, 456-58). The court dismissed Sparks and gave Sims 45 days to vacate the property. (Tr. 156-57, 458). Also, as of the June 3, 2004 court date, Respondent knew that Sparks did not reside at the property and as of the June 7, 2004, court date, Respondent knew that Sparks did not own the property. (Tr. 157-58).
Michael Fisher is an attorney who primarily represents mortgage lenders in foreclosure and eviction actions and real estate closings. He estimated that he has handled approximately 20,000 evictions. (Tr. 196-98). Fisher has regularly seen Respondent representing clients in court and has been opposing counsel in at least one case. (Tr. 198). In June 2004, Fisher sent a letter to the ARDC complaining about Respondent's conduct in the Sims case and explained his reasons for doing so. (Tr. 199-200; Resp. Ex. 15). Fisher recounted the chronology of events in the Sims matter which was consistent with the established facts. (Tr. 212-41; Adm. Ex. 9; Resp. Exs 4, 4A, 5, 7, 8, 12, 21).
Shortly after June 7, 2004, Sparks discussed with Respondent a lawsuit in which he was a defendant in an action for possession. The property was located at 16500 S. Louis Avenue in South Holland, and was occupied by Chantay Drones and her family. Sparks informed Respondent that he did not have an ownership interest in the property, and was not a tenant or occupant of the property. He also informed Respondent that prior to April 2004, he falsely held himself out to Drones as the owner of the property, which had been vacant, and rented the property to Drones. Respondent agreed to represent Drones in the possession action, and Sparks paid Respondent a $1,000 fee. In June 2004, Respondent met with Drones, and Drones told him that her primary goal was to obtain additional time in which to vacate the Louis property. On June 17, 2004, Respondent filed an appearance on behalf of Drones.
On June 25, 2004, the circuit court entered an order vacating a June 2, 2004, order granting possession of the Louis property to the plaintiff, and provided that by agreement of the parties, Drones would surrender possession of the property on July 31. 2004.
In 2004, Chantay Drones rented the Louis property from Sparks. He told her that he owned that property, and she believed him. (Tr. 50-52). Drones paid Sparks rent in the amount of either $1,200 or $1,250 per month. (Tr. 52). She lived in the property for three or four months and continued to pay rent until someone served her with papers and told her that Sparks did not own the property, and that she should not be living there. (Tr. 53-54, 64-65). Drones called Sparks, and he maintained that he owned the property. He also told her that Respondent could help her. (Tr. 54-55).
In June 2004, Drones met with Respondent. (Tr. 55-56). Drones's main concern was getting more time to move, and Respondent told her that he could help her do that. Drones paid Respondent between $150 and $300, and believed that amount was for his entire fee. She did not recall if Respondent told her that Sparks paid him part of his fee. (Tr. 56, 62, 66-69, 76). Drones could not recall if Respondent told him that he had represented Sparks in the past. (Tr. 57, 75). Respondent told her that she was a victim and that she "could, you know, file a claim against him [Sparks]." (Tr. 57-58, 67). Drones understood Respondent's statement to mean that she could take Sparks to court. (Tr. 57). At that time, Drones had not recovered any money from Sparks. She could not recall if Respondent discussed Drone's security deposit with her, and she thinks he told her that there was a problem with Spark's owning the property. (Tr. 58).
Respondent represented Drones in court, and she was satisfied with his representation. Drones did not want Respondent to pursue a claim against Sparks in court, and she preferred to deal directly with Sparks. After she called Sparks, he gave her $2,500, and she was satisfied with that amount. (Tr. 61-63, 69-70).
In June 2004, Sparks asked Respondent to represent him and Drones in a possession action. After Respondent learned that Sparks did not reside in or own the property, he agreed to represent Drones, and not Sparks. (Tr. 158-59). Sparks paid Respondent $500 for his fee. (Tr. 159-60). On June 16, 2004, Respondent met with Drones. (Tr. 160). Ultimately, Respondent was given until July 31, 2004, to vacate the property. (Tr. 161).
In an affidavit dated May 17, 2004, in the Drones matter, Fisher stated that Sparks resided on South Louis Street in South Holland. (Tr. 217-19; Resp. Exs. 24, 25). Fisher had other cases involving Sparks. (Tr. 220).
On May 4, 2004, Fisher filed a case against Sparks and Drones. (Tr. 221; Resp. Ex. 22). On May 7, 2004, Fisher sent Respondent a document from a federal court case involving Sparks. Fisher thought Respondent might want to inform Sparks about the federal matter; however Respondent never represented Sparks in that case. (Tr. 221-23, 253; Adm. Ex. 15). When Fisher sent that document, Respondent had not yet entered an appearance in the Drones case. (Tr. 224) On June 2, 2004, no one appeared in court on behalf of the defendants and an order of possession was entered in favor of the plaintiff. (Tr. 228-29; Resp. Ex. 27).
Respondent filed a motion to quash, challenging the notice Drones received regarding the lawsuit. (Tr. 242-44; Resp. Ex. 26). On June 25, 2004, Respondent withdrew the motion, and the possession order was stayed to July 31, 2004. (Tr. 244; Resp. Ex. 27).
Evidence Offered in Aggravation and Mitigation
Respondent is 54 years old and was license to practice law in Illinois in 1978. He has concentrated his practice in the area of landlord/tenant law. (Tr. 390). He has one partner in his law firm and employs five other attorneys. (Tr. 391). In addition to representing clients, Respondent gives a substantial amount of advice over the telephone. He estimated that he receives between six and twelve calls each day. Sometimes these calls result in a new client, and sometimes they do not. (Tr. 394-97). Respondent has been involved in drafting a state statute and a city ordinance regarding landlord/tenant law. (Tr. 398-400).
Respondent pro bono work consists of giving free advice to people who call his office, occasionally handling a case without charge, and handling cases for less than the market rate. (Tr. 459-62). Respondent is a member of the board of directors of the Single Room Housing Association and the Cermak Single Room Housing Assistance Corporation which provides housing and counseling for the homeless. He is also on the board of directors for the Center for Renter's Rights. Respondent also makes charitable contributions to the Loyola Law School, Loyola University, the University of South Florida, and a few renter's rights organizations. For the last ten years, Respondent has purchased Thanksgiving Day dinners for members of a mobile home park where his father used to live. (Tr. 462-65, 469).
Judge David Delgado
David Delgado is a Cook County circuit court judge. He has known Respondent for more than 20 years. Judge Delgado opined that Respondent is a knowledgeable practitioner and has a good reputation for honesty. (Tr. 167-77).
Nathaniel Lawrence is an attorney with part of his practice consisting of representing landlords and tenants. (Tr. 184-85). He has been involved in cases where Respondent has been the opposing counsel, he has frequently observed Respondent in court, and he and Respondent have referred cases to each other. (Tr. 186-90). Lawrence opined that Respondent has a good reputation for honoring the rules of professional conduct. (Tr. 190). He is aware of Respondent's prior discipline and the pending allegations, and those facts do not change his opinion of Respondent. (Tr. 191-92).
Leonard Murray is a judge in the Circuit Court of Cook County, and is currently assigned to the forcible entry and detainer section. He has held this position since April 2006. Judge Murray has know Respondent for approximately ten years, and has been the opposing counsel in cases Respondent has handled. He has never heard anything negative about Respondent's reputation for honesty. (Tr. 254-62).
Bradley Sullivan is an attorney and has known Respondent for approximately 20 years. He has been the opposing counsel in several cases against Respondent, and they have referred cases to each other over the years. Sullivan has never heard anything negative about Respondent's reputation for honesty. (Tr. 264-69).
Sanford Kahn is an attorney who concentrates his practice in landlord/tenant law. He has known Respondent for 10 or 15 years and had cases with him as opposing counsel. Kahn has found Respondent to be honest in those cases, but he was unaware of Respondent's reputation for honesty in the legal community. (Tr. 316-33).
Respondent has received a prior discipline in which he was suspended from the practice of law for six months. In re Starr, 00 CH 70, M.R. 20008 (May 20, 2005). In that matter, James Robertson initiated an action for possession against Teresa Calcagno, a friend and former client of Respondent's. After an order of possession was entered against Calcagno, the sheriff went to the property to evict her. The sheriff was presented with an affidavit, purportedly by James Jakubosky, stating that Jakubosky lived at the property. Based on that affidavit, the sheriff was
unable to effectuate the eviction. Robertson filed an amended complaint naming Jakubosky as a defendant, and had him served.
At Calcagno's request, Respondent agreed to represent Jakubosky. Calcagno gave Respondent a copy of the affidavit, a work order showing that Jakubosky had requested telephone service for the property, and telephone bills addressed to Jakubosky at that address. Respondent stated that he talked to someone on the telephone who identified himself as Jakubosky, but never met him. Respondent filed two motions to dismiss on behalf of Jakubosky and, although Jakubosky did not attend, represented him during the trial. A judgment for possession was entered in favor of Robertson. At the disciplinary hearing, Jakubosky testified that he never lived at the property, never authorized anyone to order telephone service in his name, never saw the affidavit, and never authorized Respondent to represent him.
Subsequently, Robertson's attorney learned that Jakubosky never lived at the property, and filed a motion for sanctions against Respondent. During the hearing before the circuit court, Respondent admitted that he knew Calcagno was perpetuating a scam upon Robertson. The circuit court imposed sanctions against Respondent in the amount of $23,148.50, and found that Respondent "violated Supreme Court Rule 137 by filing an unauthorized appearance on behalf of a non-existing occupant for the purpose of delaying an eviction as part of a fraudulent scheme to retain possession of a leasehold."
Respondent was found to have asserted a position, conducted a defense, delayed a trial, or took other action on behalf of a client when he knew or reasonably should have known that such action would serve merely to harass or maliciously injury another; made statements of material fact or law to a tribunal which he knew or reasonably should have known were false; defended a proceeding without a basis for doing so that was not frivolous; engaged in dishonest
and fraudulent conduct; prejudiced the administration of justice; and engaged in conduct that tended to bring the legal profession into disrepute. Respondent was suspended for six months.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Motion for Directed Finding
At the close of the Administrator's case, Respondent made an oral motion for a directed finding on Counts I and II of the Complaint. The Panel granted the motion with regard to Count II, and denied the motion with regard to Count I. The ruling on a motion for a directed finding requires a two step process. First, it must be determined if the Administrator presented sufficient evidence to establish a prima facie case, that is, presented at least some evidence on every essential element necessary to prove the alleged misconduct. If the Administrator fails to establish a prima facie case, the motion should be granted. If the Administrator presents a prima facie case, the Hearing Panel must weigh the evidence, including the credibility of the witnesses, to determine whether the Administrator proved the alleged misconduct by clear and convincing evidence. In re Conner, 04 CH 147, M.R. 21856 (November 20, 2007), citing, Kokinis v. Kotrich, 81 Ill. 2d 151, 407 N.E.2d 43 (1980); Geske v. Geske, 343 Ill. App. 3d 881, 799 N.E.2d 829 (1st Dist. 2003); see also In re Biagini, 07 SH 13 (Hearing Bd. Rpt., January 11, 2008).
Applying this analysis to the present case, we found that Respondent was entitled to a directed finding regarding Count II. In that Count, the Administrator alleged that Respondent engaged in misconduct when he represented Chantay Drones in an eviction matter. Specifically, the Administrator alleged that Respondent failed to explain a matter to the extent reasonably necessary to permit Drones to make informed decisions regarding the representation; represented Drones where that representation may be materially limited by Respondent's responsibilities to another client, namely Sparks; engaged in conduct that is prejudicial to the administration of
justice; and engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
The admitted facts establish that Respondent and Sparks discussed a pending eviction case involving the Louis property. Sparks had leased the property to Drones, but he did not have an ownership interest in the property. Respondent agreed to represent Drones, and Sparks paid Respondent a portion of his attorney's fee. Respondent met with Drones and filed an appearance on her behalf. On June 25, 2004, the circuit court entered an order providing that Drones would surrender possession of the property on July 31, 2004.
The admitted facts are insufficient to establish a prima facie case of misconduct. Accordingly, we must examine the testimony presented at the hearing. Drones testified that her main concern was getting more time to move out of the property. She also testified that Respondent advised her that she was a victim and that she "could, you know, file a claim against him [Sparks]." She understood Respondent's statement to mean that she could take Sparks to court. Drones did not want Respondent to pursue a claim against Sparks and that she preferred to deal directly with Sparks. She was satisfied with Respondent's representation. She recovered $2,500 from Sparks after the case was over, and she was satisfied with that amount. Based on this testimony, while arguably sufficient to establish a prima facie case as to some of the alleged misconduct, we find it insufficient to prove any of the alleged misconduct.
Although Drones was a credible witness, she was unable to recall numerous facts that were critical to the Administrator's case. Drones could not recall if Respondent told her that Sparks paid part of his attorney's fee or if Respondent told her that he had represented Sparks in the past. Such equivocal testimony is insufficient to establish the facts necessary to prove the alleged misconduct. Further, we observed Drones testify and drew inferences from her
testimony based on those observations. Some of these inferences are not discernable from the hearing transcript, such as the tone of her voice and her body language. When she stated that she did not recall a fact, we understood that to mean that she did not remember, or that the fact may or may not have occurred. See In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995) (the Hearing Board is in the best position to assess a witnesses credibility).
The Administrator argued that when Drones stated that Respondent advised her that she had a claim against Sparks, that she understood that to mean she had a claim for her security deposit, and that Respondent failed to advise her of any other claims she might have against Respondent. We do not agree with this interpretation of Drones' testimony. It was very clear to us that Drones had difficulty recalling the details of her discussions with Respondent. In fact, at one point the Administrator attempted to impeach Drones, his own witness, with testimony from her sworn statement. On more than one occasion during his testimony, Drones stated that Respondent advised her that she was a victim and could file a claim against Respondent. On re-direct examination, the Administrator asked her if that meant a claim for her security deposit, but the question was phrased such that it was difficult to know whether that is what Respondent said or if that is what Drones thought her claim would be. On re-cross examination, Drones reiterated her testimony that Respondent advised her that she had a monetary claim against Respondent. Given these ambiguities in the testimony, we find that Drones could not recall the facts necessary for the Administrator to prove the alleged misconduct.
The Administrator also argued that the fact that Sparks paid part of Respondent's fee somehow caused a conflict of interest. We do not agree. The facts show that Sparks gave Respondent either $1,000 or $500 to represent Drones. (Although the amount is in dispute, we find that the exact amount does not impact our finding.) There is absolutely no evidence, and no
reasonable inference, that Sparks's payment of Respondent's fee created any conflict. It is undisputed that the only issue involved in the pending matter was possession of the property, and that Drones could not include a claim against Sparks. We have already found that Drones knew she had a claim against Sparks. Accordingly, we find the fact that Sparks paid part of Respondent's fee does not amount to misconduct.
Findings on the Merits of Count I
In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). "Clear and convincing evidence is a standard of proof which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, § 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
In this case, based on the evidence and testimony presented at the hearing, with regard to Count I, we conclude that the Administrator proved some of the alleged misconduct and failed to prove some of the alleged misconduct. Specifically, we conclude that the Administrator proved that Respondent: 1) failed to consult with a client as to the means by which the objectives of representation are to be pursued; and 2) represented multiple clients in a single matter without explaining the implications of the common representation and the advantages and risks involved
in violation of Rules 1.2(a) and 1.7(c) of the Illinois Rules of Professional Conduct. We also find that the Administrator did not prove that Respondent: 1) represented a client where the representation of that client would be directly adverse to another client, 2) engaged in conduct prejudicial to the administration of justice; and 3) engaged in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Rules 1.7(a), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
The Administrator proved that Respondent failed to consult with a Sims as to the means by which the objectives of representation are to be pursued and represented Sparks and Sims in a single matter without explaining the implications of the common representation and the advantages and risks involved in that matter. It is undisputed that Respondent represented both Sparks and Sims in a legal matter. He filed an appearance on behalf of both of them, appeared in court on three occasions, and filed a response to a motion for summary judgment on their behalf. However, Respondent failed to adequately communicate with Sims. In fact, by Respondent's own admission, he was hired on April 26, 2004, but first spoke with Sims on June 7, 2004, the day she discharged him as her attorney. Respondent had an obligation to discuss the matter with her prior to that date.
We understand the realities of practicing law, and find no misconduct relating to Respondent filing an appearance on behalf of Sims on April 26, 2004. On that date, Sparks showed up at Respondent's office at 9:15 a.m. for a 9:30 a.m. court hearing. Sparks told Respondent that Sims was his girlfriend and asked him to represent them in court. Given the timing of Sparks's request and his representation that Sims was his girlfriend, Respondent did nothing improper by filing an appearance on behalf of Sims.
We do, however, find that Respondent engaged in misconduct when he failed to discuss the matter with Sims after that date. The next court date was May 3, 2004. Respondent made no effort to communicate with Sims in the seven days between court dates. At that court date, a briefing schedule was set for the plaintiff's motion for summary judgment, and the next court date was scheduled for June 3, 2004. Subsequently, Respondent sent Sims a copy of the plaintiff's motion for summary judgment, but there was no other contact between Respondent and Sims. Respondent had adequate time to contact Sims and discuss the matter with her, learn her objectives, explain the implications of representing both her and Sparks, and give her relevant advice. By failing to do so, he engaged in misconduct. We reject Respondent's argument that mailing her a copy of the motion for summary judgment was sufficient communication. Although it can be viewed as keeping her informed about the status of the matter, it cannot be construed as sufficient to satisfy Respondent's other ethical obligations to her.
Additionally, not only did Respondent fail to adequately communicate with Sims, he also acted on her behalf without knowing what she wanted him to do. On June 3, 2004, Respondent asked Fisher, the plaintiff's counsel, if he would allow Sims 28 days to vacate the property. Fisher would not agree. Respondent made this proposal without ever speaking with Sims or knowing anything about her circumstances. Even if, for the sake of argument, that was the most time he could get for her, Respondent had an obligation to talk to his client before making the proposal to settle the case.
Also that day, Respondent learned that Sims had hired Tillman to represent her in the matter. Nevertheless, the following day he filed a response to the motion for summary judgment on behalf of both Sparks and Sims. Before the next court date of June 7, 2004, Respondent
talked to Sparks, but not Sims. Respondent presents no reasonable explanation for failing to discuss the matter with Sims and none can be gleaned from the record. An attorney cannot represent a client without knowing the clients objectives, learning facts necessary to the representation, and discussing the alternatives and options available to the client. Respondent had adequate time to communicate with Sims, and failed to do so.
We also find that the Administrator failed to prove that Respondent represented a client where the representation of that client would be directly adverse to another client. The Administrator alleges that Respondent engaged in a conflict of interest when he represented both Sims and Sparks in the pending lawsuit. According to the Administrator, Respondent's loyalty to Sparks interfered with his representation of Sims. We see no actual or potential conflict in Respondent's representation of both Sparks and Sims, and the Administrator failed to prove that Respondent's representation of Sparks was directly adverse to the representation of Sims. It is undisputed that Sparks and Sims were named defendants in the lawsuit, and that Respondent agreed to represent both of them. The sole issue in the lawsuit was who was entitled to possession of the property, and neither Sparks nor Sims had a defensible interest in possession of the property. The only determination to be made was when Sims would surrender possession. Sparks had no real interest in the outcome of the litigation, and Sims's only interest was staying in the property as long as possible. In the context of that lawsuit, Sims would not be allowed to pursue a monetary claim against Sparks. Accordingly, the Administrator failed to present sufficient evidence to prove a conflict of interest.
We also find that the Administrator failed to prove that Respondent engaged in conduct prejudicial to the administration of justice, conduct that tends to defeat the administration of justice, or conduct that brings the courts or the legal profession into disrepute. There is no
evidence that Respondent's lack of communication with Sims affected the case in any way or had any impact on Sims's legal rights. There is also no evidence that Sims's opinion of attorneys was affected by Respondent's conduct. The Administrator attempts to make much of the fact that Respondent continued to argue on behalf of Sims even after Sims discharged him, and only stopped after being told to stop by the court. We do view these facts in the same light as the Administrator. Although Respondent made arguments on Sims's behalf after she hired Tillman, we construe his actions as being zealous advocacy, albeit slightly overzealous, and not as an attorney engaging in misconduct. He had no other motivation for making these arguments other than to help Sims, his arguments were made in open court and in the presence of Tillman, and did not prejudice Sims in any way. He should have stopped representing Sims after she hired Tillman, but under these circumstances, failing to do so does not rise to the level of misconduct.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986).
The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. Here, there are several mitigating and aggravating factors.
Respondent's misconduct is aggravated, but not significantly, by the fact that he had a prior discipline. Generally, prior discipline is a serious aggravating factor, and typically causes a more severe sanction than might otherwise be imposed. In re Blank, 145 Ill. 2d 534, 585 N.E.2d 105 (1991). The nature of the prior misconduct and the period of time between the prior misconduct and the current misconduct are important elements to consider when determining the weight to be given to this aggravating factor. See In re Levin, 101 Ill. 2d 535, 463 N.E.2d 715 (1984); In re Weitzman, 93 CH 551, M.R. 12217 (March 26, 1996).
In the present case, Respondent was suspended from the practice of law for six months in 2005. As detailed, above, Respondent assisted a former client in a fraudulent scheme to delay an eviction. Specifically, Calcagno, the former client, was being evicted from the property in which she lived. To delay the eviction, Calcagno gave the sheriff an affidavit stating that Jakubosky also lived at the property. Because Jakubosky was not named in the lawsuit, the eviction was delayed and the case refilled. At Calcagno's request, Respondent represented Jakubosky, but Respondent never met with him. A judgment for possession was entered in favor of the plaintiff. Subsequently, plaintiff's counsel learned that Jakubosky never lived at the property, and filed a motion for sanctions. Respondent admitted that he knew Calcagno was perpetuating a scam, and $23,148 in sanctions was entered against him.
Although we consider Respondent's prior discipline in aggravation of his current misconduct, we do not give it significant weight. The nature of Respondent's current
misconduct is substantially different from his prior misconduct, and there was a critical lack of time between the imposition of the prior discipline and current misconduct.
Respondent's prior misconduct involved more egregious facts than the present case. The most significant findings of misconduct in Respondent's prior case were asserting a position in an action he knew would serve to harass or maliciously injure another, making statements of material fact or law to a tribunal which he knew were false, defending a proceeding without a non-frivolous basis for doing so, and engaging in dishonest conduct, conduct prejudicial to the administration of justice and conduct that tends to bring the legal profession into disrepute. Although he represented a client without the client's authority, he was not charged with or found to have done that. Therefore, we find that the prior misconduct and the current misconduct are substantially different.
Further, Respondent was found to have engaged in the prior misconduct by the Hearing Board in July 2003, and the Review Board in December 2004. The current misconduct occurred between late April 2004 and early June 2004. Importantly, in the prior case, the Hearing Board found that the Administrator failed to prove the misconduct involving Respondent's representation of Jakubosky, and found misconduct relating to different counts. The Hearing Board recommended a sixty day suspension, stayed in its entirety. The Review Board reversed the Hearing Board's findings. However, by the time the Review Board issued its decision, the conduct at issue in the current case was completed. Accordingly, Respondent could not have used the Review Board's decision to modify his conduct in this case. Based on these facts, we give some, but not a significant amount of, weight to Respondent's prior discipline as an aggravating factor.
Nevertheless, we are astounded by Respondent's attempt to minimize his prior misconduct. Rather than acknowledging his prior misconduct, he spent a significant amount of time seemingly arguing that the findings of misconduct were incorrect. He believes it is significant that the Hearing Board found no misconduct, and that the Review Board found misconduct in a 2-1 decision. He even goes so far as to argue that the Review Board's decision violated the applicable standard of review. Respondent fails to give any weight to the most important fact, namely that the Illinois Supreme Court affirmed the Review Board's decision and imposed a six month suspension. The sanction imposed by the Court is significant and should not be taken lightly. Respondent's failure to give the Court's ultimate decision the weight it deserves is nothing short of appalling, and demonstrates Respondent's complete failure to understand the nature of his prior misconduct.
Respondent's misconduct is also aggravated by the fact that he has failed to demonstrate remorse for his misconduct. As with his prior misconduct, Respondent failed to show any remorse for his misconduct in the present case. Although Respondent failed to demonstrate any remorse, given the limited nature of the misconduct, we give this factor little weight.
We decline to find, as the Administrator suggests, that Respondent's misconduct is aggravated because he engaged in a deliberate course of conduct. Based on our limited findings of misconduct, we find insufficient evidence to establish a deliberate course of conduct or conduct that was calculated to deceive anyone.
We further find that Respondent's misconduct is mitigated by the fact that he presented evidence of good character. Respondent presented the testimony of five witnesses, of which four testified that Respondent has a good reputation in the community for honesty. See In re Lenz, 108 Ill. 2d. 445, 484 N.E.2d 1093 (1985).
We also find that Respondent's misconduct is mitigated by his pro bono and charitable activities. Specifically, Respondent is a member of the board of directors of the Single Room Housing Association and the Cermak Single Room Housing Assistance Corporation which provides housing and counseling for the homeless. He is also on the board of directors for the Center for Renter's Rights. Respondent also makes charitable contributions to the Loyola Law School, Loyola University, the University of South Florida, and a few renter's rights organizations. For the last ten years, Respondent has purchased Thanksgiving Day dinners for members of a mobile home park where his father used to live. These activities demonstrate a significant commitment to the community.
We decline to find, as Respondent's suggests, that his misconduct is mitigated by his practice of giving legal advice over the telephone. Respondent testified that he spends a significant portion of his day giving free legal advice over the telephone. As Respondent further testified, however, it became apparent that he gives this advice not to perform a community service, but in large part, to generate future business for his firm. This is not the type of activity that would mitigate his misconduct. Respondent's testimony about other cases he handled on a pro bono basis or for a reduced fee was too vague and unsubstantiated to be considered in mitigation.
Having considered the mitigating and aggravating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be suspended from the practice of law for six to nine months, and cites numerous cases to support his recommendation. See In re Welzien, 05 CH 89, M.R. 21730 (September 18, 2007) (four month suspension); In re Gearhart, 05 SH 19 (six month suspension); In re Daley, 98 SH 2. M.R. 17023 (November 27, 2000) (nine month suspension); In re Kramer, 98 RC 1503 (reciprocal discipline imposing a six
month suspension and until further order of the court). Respondent believes that if there is a finding of misconduct the maximum sanction should be a reprimand.
After reviewing the relevant case law, we recommend Respondent receive a censure. The cases relied upon by the Administrator are distinguishable from the present case because they involve more egregious conduct. Specifically, all of the cases involved conflicts of interest. In the present case, we found that Respondent did not engage in a conflict of interest. In Daley, the attorney failed to consult with seven clients regarding the objectives of representation, failed to communicate with those clients, failed to explain a matter to those clients, engaged in a conflict of interest in several cases, and failed to report another attorney's misconduct to the ARDC. Daley presented some evidence in mitigation, but in aggravation, he had been previously disciplined. He was suspended for nine months.
In Welzien, the attorney was found to have engaged in a conflict of interest and violating his fiduciary duty to his client. Welzien represented the administrator of an estate, and sued the estate for $470,000 related to business dealings he had with the decedent. He also filed a petition to remove the administrator of the estate and to have himself appointed to that position. Welzien was suspended from the practice of law for 4 months.
In Gearhart, the attorney breached a fiduciary duty to his clients and engaged in a conflict of interest when he represented the sellers and buyer in a real estate transaction. Additionally, he commingled client funds, sued one of his clients, and revealed client confidences. Gearhart was suspended from the practice of law for six months.
In O'Brien, the attorney engaged in a conflict of interest when he represented multiple family members in a wrongful death action, and improperly advanced funds to a client for burial expenses. In mitigation, O'Brien had no prior discipline, his misconduct was not intentional, he
did not act with an improper motive, he was of good character, and he preformed a significant amount of charitable activities. O'Brien received a censure.
None of these cases are analogous to the present case and are of no assistance in recommending a sanction. The misconduct in this case is more analogous to cases where an attorney fails to communicate with a client or keep a client informed about a case. We have found numerous cases where attorneys have not only failed to communicate with their clients, but failed to adequately represent their clients. Even in those cases, the attorney received a censure. See In re Ruder, 04 CH 106, M.R. 20527 (January 13, 2006) (the attorney failed to properly serve a defendant, the case was dismissed, the attorney misrepresented the status of the case to his client); In re Brewer, 04 CH 55, M.R. 20543 (January 13, 2006) (the attorney neglected a client matter and failed to adequately communicate with his client); In re Diaz, 04 SH 128, M.R. 20294 (September 26, 2005) (the attorney neglected two client matters and made misrepresentations to his client); In re Feder, 04 CH 93 M.R. 20139 (May 20, 2005) (the attorney neglected a matter, a default judgment was entered, and the client's wages were garnished). In the present case, unlike these cases, Respondent did not neglect the case and did not make misrepresentations to his client.
Significantly, Respondent also had no dishonest motive when he engaged in the misconduct. The Illinois Supreme Court has stated that the lack of a dishonest motive is an appropriate factor to consider when determining the appropriate sanction. In re Clayter, 78 Ill. 2d 276, 399 N.E.2d 1318 (1980). Even in cases involving conversion of client funds, where there was no dishonest motive, attorneys have received a censure. See In re Abrams, 04 CH 132, M.R. 20676 (March 20, 2006). In the present case, Respondent's misconduct was not as severe as other cases where a censure has been imposed. However, given the mitigating and
aggravating factors, including Respondent's prior discipline, we believe that a censure is the appropriate sanction in the present case.
We want to impress upon Respondent that if he fails to comprehend the nature of his misconduct in this case and his prior disciplinary matter, and fails to modify future conduct, he is increasing his chances of violating his ethical obligations. Respondent should now, without question, be on notice that he must communicate with clients he seeks to represent. Luckily for Respondent the misconduct in the current matter is substantially less egregious than his prior misconduct and warrants a less severe sanction. However, if Respondent continues to engage in similar misconduct, it is likely that any subsequent sanction will be more severe.
Therefore, in light of Respondent's misconduct, and considering the aggravating factors and relevant case law, we recommend that Respondent receive a censure.
Date Entered: April 4, 2008
|John A. Guzzardo, Chair, Ziad Alnaqib and Marshall R. Rowe, concurring.|