Filed January 28, 2008
In re Steven Sosman
Commission No. 06 CH 83
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) failing to act with reasonable diligence and promptness in representing a client; 2) failing to refund promptly any part of a fee paid in advance that has not been earned; 3) failing to respond to a lawful demand for information from a disciplinary authority; 4) engaging in conduct prejudicial to the administration of justice; and 5) engaging in conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute.
RULES DISCUSSED: 1.3, 1.16(e), 8.1(a)(2), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: Two-year suspension and until further order of the Court.
DATE OF OPINION: January 28, 2008.
HEARING PANEL: Michael C. Greenfield, Chair, Jay A. Frank, and K.F. Kitchen, II.
ADMINISTRATOR'S COUNSEL: Robert J. Verrando.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
STEVEN H. SOSMAN,
Commission No. 06 CH 83
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on June 27, 2007, at the offices of the Attorney Registration and Disciplinary Commission, Chicago, Illinois, before a Hearing Board Panel consisting of Michael C. Greenfield, Chair; Jay A. Frank, lawyer member; and K.F. Kitchen, II, public member. Robert Verrando represented the Administrator. Respondent, Steven Sosman, failed to appear for the hearing and was not represented by counsel.
PLEADINGS AND PREHEARING PROCEEDINGS
On November 30, 2006, the Administrator filed a two-count Complaint alleging that Respondent neglected a matter, failed to return unearned fees, and failed to cooperate with the Attorney Registration and Disciplinary Commission (ARDC). On January 24, 2007, Respondent was personally served with a copy of the Administrator's Complaint at his registered home address in Wisconsin. On March 5, 2007, the Chair entered an order setting the matter for a pre-hearing conference on April 18, 2007. On the same day that the order was entered, the Clerk of the Commission mailed a copy of the order to Respondent at his registered work address in Chicago and his registered home address in Wisconsin. Respondent failed to participate at the April 18 pre-hearing conference. Because Respondent failed to file an Answer or other
responsive pleading, the Chair granted the Administrator's Motion to Deem the Allegations of the Complaint Admitted pursuant to Commission Rule 236 and limited the evidence to be presented at the hearing to matters of aggravation and mitigation. In addition, the Chair scheduled the hearing for June 27, 2007. On April 19, 2007, the Clerk of the Commission mailed a copy of this order to Respondent's registered Chicago and Wisconsin addresses.
On the day of the hearing, June 27, 2007, the Chair was presented with a fax that contained Respondent's emergency motion to continue the hearing. The document indicated it was received at approximately 8:00 a.m. that morning. (Tr. 4). In the motion, Respondent stated that he had not received actual notice of the hearing until his father told him of it three days earlier after his father received a call on his cell phone. The motion further stated that mail was erroneously returned from Respondent's Chicago office and he would be unable to attend the hearing due to his father's medical condition.
On June 13, 2007, Erin McCann, an investigator with the ARDC, was assigned to contact Respondent and determine if he would appear at the hearing. (Tr.17-18). Ms. McCann proceeded to the address that Respondent identified as his office when he registered with the ARDC: 1400 West Devon, Suite 233, Chicago. There, Ms. McCann found a UPS store. (Tr. 18). Ms. McCann learned that Respondent maintained only a mailbox (number 233) and not an office at that address. (Tr. 18). Respondent was able to receive mail at the mailbox until May 25, but rarely, if ever, picked up the mail. (Tr. 19). Because Respondent had not paid his rental fee for the mailbox, it was not currently active. (Tr. 19). Ms. McCann also spoke with the owner of the building and confirmed that Respondent did not rent and never had rented an office in that building. (Tr. 18-19).
On June 14, 2007, Ms. McCann tried to contact Respondent on the cell phone number he had provided. (Tr. 20). The message identified the phone as that of Respondent's. (Tr. 20). However, a full voice mailbox prevented her from leaving Respondent a message. (Tr. 20). Ms. McCann tried to reach Respondent by phone again on June 19th and June 21st with the same result. (Tr. 21-22).
On June 26, 2007, the day before the scheduled hearing, Ms. McCann received a phone message from Respondent stating he had received her earlier message, but was unable to get back to her because he was on trial. He then stated that his father told him he had a hearing, but Respondent knew nothing about it. He concluded by stating that his father was possibly having heart surgery and requested that Ms. McCann return his call. (Tr. 22).
Ms. McCann returned Respondent's call later that day. (Tr. 23). During this phone conversation, Respondent confirmed that he had received a copy of the Complaint, confirmed his registered addresses in Chicago and Wisconsin, and stated he received an order assigning hearing board members. (Tr. 23 - 24). Respondent told Ms. McCann that he could not attend his disciplinary hearing because his father was having surgery and he needed to be with him. (Tr. 23). At Ms. McCann's request, Respondent provided her with his father's phone number. (Tr. 23). Ms. McCann testified that was the first time they had been provided with Respondent's father's cell phone number. (Tr. 24).
Ms. McCann contacted Mark Sosman, Respondent's father, who indicated that he was not scheduled for heart surgery that day, but did have a doctor appointment. (Tr. 26). Mr. Sosman told Ms. McCann that he had received a phone call for Respondent, but did not recall any details. Mr. Sosman had no knowledge of Respondent's disciplinary hearing. (Tr. 27-28).
The Chair denied Respondent's motion for continuance.
The Administrator presented the testimony of Erin McCann (presented above) and John Mashni. Administrator's Exhibits 1 - 4 were admitted into evidence. (Tr. 46).
Counts I and II
On May 9, 2006, Respondent agreed to represent John Williams in a criminal matter. At the time of his arrest, Mr. Williams qualified for and chose to be placed on house arrest in lieu of incarceration at the Cook County jail pending trial. Mr. Williams retained Respondent to represent him in the criminal matter and to assist him in obtaining permission to work outside of his home while on house arrest. Mr. Williams also advised Respondent he was scheduled for arraignment on May 26, 2006.
Respondent requested a $1,500 retainer, but agreed to accept $500 to begin the representation Between May 9, 2006, and May 15, 2006, Mr. Williams paid Respondent a total of $500.
Respondent did not appear at the scheduled arraignment on May 26, 2006, and the court continued the matter to June 8, 2006. Respondent advised Mr. Williams in a telephone conversation that he failed to appear because he was "running late." Mr. Williams told Respondent that the court continued the matter to June 8, 2006, and again inquired about working outside of his home while on house arrest. Respondent stated that he would go to the Sheriff's office to seek such permission on the next court date.
On June 8, 2006, Respondent again failed to appear. During a telephone conversation with Mr. Williams, Respondent stated he forgot about the court date. Mr. Williams then advised Respondent that the court continued the matter to June 15, 2006.
On June 15, 2006, Respondent appeared on Mr. Williams' behalf and obtained a continuance until July 19, 2006. At no time after June 15, 2006, did Respondent appear on Mr. Williams' behalf or proceed in any other matter on his behalf. Respondent did not provide sufficient services to justify the fee he received from Mr. Williams.
On August 31, 2006, Mr. Williams telephoned Respondent to discuss his case and to express his dissatisfaction with Respondent's representation. Respondent advised Mr. Williams to seek representation from a public defender.
On July 24, 2006, Mr. Williams submitted a Request for Investigation to the ARDC regarding Respondent's conduct. On July 28, 2006, and August 22, 2006, Counsel for the Administrator sent letters to Respondent's registration addresses, requesting that he provide information regarding his representation of Mr. Williams. At no time did Respondent respond to the Administrator's letters or requests for information. (Adm. Exs.1 and 2).
Evidence Offered in Aggravation
John Mashni testified that he retained Respondent to represent him in a misdemeanor battery case and a related civil matter against Mr. Mashni and his parents. (Tr. 30). Respondent asked Mr. Mashni to pay him in cash because he was in the process of a divorce and wished to hide his money from his wife. (Tr. 31). Mr. Mashni paid Respondent a total of $1,000 for representation in the civil matter. (Tr. 32-33). At Respondent's direction, Mr. Mashni made an additional payment by check payable to another attorney, Linda Speck. (Tr. 34).
On several occasions, Mr. Mashni tried calling Respondent to determine the status of his case but was not able to reach Respondent or to leave a message because the voicemail was always full. (Tr. 35). The only time Mr. Mashni was able to discuss his case with Respondent,
was when Respondent would come into Mr. Mashni's liquor store. (Tr. 35). Respondent came in approximately every other day and took liquor from Mr. Mashni in lieu of money as payment for legal services. (Tr. 35, 43). Mr. Mashni also testified that on one occasion Respondent took Mr. Mashni's Vicodin, a drug Mr. Mashni obtained by a doctor's prescription. Respondent told Mr. Mashni that he had filed an Answer and discussed his strategy in the case. Based on these representations, Mr. Mashni believed that Respondent was diligently working on his case. (Tr. 35-36).
Due to Respondent's repeated failure to appear and his failure to comply with various orders in Mr. Mashni's cases, the judge presiding over the case issued an order commanding Mr. Mashni, his parents and Respondent to appear in court on August 23, 2006. (Adm. Ex. 3, p. 20). Respondent failed to appear. Accordingly, the court issued an Order of Attachment for Respondent. (Adm. Ex. 3, p. 26). The court later vacated the order of attachment and forwarded the orders to the ARDC. (Adm. Ex. 3). Mr. Mashni and his family hired another attorney to represent them in this matter. (Tr.36). To date, Respondent has not refunded Mr. Mashni any of the money he paid Respondent. (Tr. 37).
As a result of neglecting four client matters, converting client funds, lying to the ARDC, and soliciting a personal injury matter, the Illinois Supreme Court suspended Respondent from the practice of law for twenty-four months and until Respondent made restitution to two clients. In re Sosman, 90 CH 489, M.R 10195 (June 23, 1994). However, Respondent did not make restitution until September 1998 thereby extending his suspension for an additional two years.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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). Upon consideration of the Administrator's Complaint, the order entered deeming the allegations of the Complaint admitted and Administrator's Exhibits 1 through 4, we find that the Administrator proved by clear and convincing evidence that the Respondent engaged in the acts and committed the misconduct alleged in the Administrator's Complaint.
Specifically, we find that Respondent engaged in the following misconduct:
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 ("Rules");
failed to refund promptly any part of a fee paid in advance that has not been earned in violation of Rule 1.16(e) of the Rules;
failed to respond to a lawful demand for information from a disciplinary authority in violation or Rule 8.1(a)(2) of the Rules;
engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Rules; and
engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770.
The purpose of the attorney disciplinary system is not to punish an attorney for misconduct. Rather, the goal is to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice. In re Spak, 188 Ill.2d 53, 67, 719 N.E.2d 747 (1999). In determining the appropriate sanction, the nature of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction
will help preserve public confidence in the legal profession are to be considered. In re Gorecki, 208 Ill.2d 350, 360-61, 802 N.E.2d 1194 (2003). Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill.2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill.2d 459, 472, 641 N.E.2d 473 (1994).
In this matter, Respondent neglected a criminal matter, failed to cooperate with an ARDC investigation, and lied to the ARDC in connection with its investigation. In support of his recommending a one-year suspension and until further order of the Court, the Administrator relies on the following cases: In re Ring, 141 Ill.2d 128, 565 N.E.2d 983 (1991) (Respondent suspended from the practice of law for 6 months for failing to pursue a client's criminal appeal); In re Houdek, 113 Ill.2d 323, 497N.E.2d 1169 (1986) (Respondent suspended for 24 months and until further order of the Court for neglecting a case, failing to correct the neglect or make restitution, conversion and misrepresenting the status of the case to the client); In re Jaffe, 00 CH 17, M.R. 17654 (November 28, 2001) (Respondent suspended for 18 months and until further order of the Court for neglecting two maters, misrepresenting the status of the cases to the clients, failing to make restitution and failing to participate in the disciplinary proceedings); and In re Hultquist, 01 SH 77, M.R. 18297 (September 20, 2002) (Respondent suspended for three years and until further order of the Court for neglecting one case, failing to sufficiently communicate with his client and failing to return unearned fees).
Neglect of a legal matter is in itself sufficient ground for suspension. In re Houdek, 113 Ill.2d 323, 327. The length of suspension is based upon the aggravating and mitigating factors.
In re Samuels, 126 Ill.2d 509, 529, 535 N.E.2d 808 (1989). Because Respondent failed to participate, we were presented with no evidence in mitigation.
In aggravation we consider Respondent's previous discipline for similar misconduct. See In re Levin, 118 Ill.2d 77, 88, 514 N.E.2d 174 (1987); In re Broverman, 40 Ill.2d 302, 308, 239 N.E.2d 816 (1968). In 1994, Respondent was suspended for two years for neglecting a client matter, failing to adequately inform his client of the status of the case and failing to return unearned fees. Respondent's failure to make the mandated restitution until 1998 extended his suspension until that time.
We are also mindful that "more severe discipline is appropriate to deter neglect in criminal cases than in civil cases." In re Hall, 95 Ill.2d 371, 375, 447 N.E.2d 805 (1983); In re Weinberg, 119 Ill.2d 309, 315, 518 N.E.2d 1037 (1988). A criminal case warrants more severe discipline because the loss of a criminal case is less likely to be subject to monetary valuation than the loss of a civil suit for damages. See In re Weinberg, 119 Ill.2d 309, 315.
Uncharged misconduct may be considered in aggravation when it is similar to the current charge and established by the evidence in the record. In re Stormant, 203 Ill.2d 378, 400, 786 N.E.2d 963 (2002). Here, we find Mr. Mashni credible. As with Mr. Williams' case, Respondent repeatedly failed to appear in court on Mr. Mashni's behalf. Respondent also responded dishonestly to Mr. Mashni's demand for information on the status of his case and failed to return unearned fees. The Complaint charges Respondent with this very misconduct. Where, as here, uncharged conduct is similar to the current charges and is established by evidence in the record, it is illustrative of a respondent's pattern and practice of misconduct and appropriately considered in aggravation. See Stormant, 203 Ill.2d 378, 400 and In re Elias, 114 Ill. 2d 321, 336-37, 499 N.E.2d 1327 (1986).
A respondent's lack of participation in these disciplinary proceedings is yet another serious aggravating factor and demonstrates that the attorney is unwilling or unable to meet professional standards of conduct. In re Houdek, 113 Ill.2d 323, 327. Here, Respondent failed to participate in these proceedings and minimally participated in his prior disciplinary proceedings. In both matters, Respondent's failure to participate resulted in orders being entered against him deeming the allegations of the Complaint admitted and barring him from presenting any evidence at the hearing. In both matters, Respondent's first effort to participate in the proceedings occurred the morning of the hearing by way of a request for a continuance.
Respondent's behavior shows not only a pattern of neglecting his clients, but also a pattern of failing to fully and candidly participate in his disciplinary proceedings. This is further evidence that Respondent is unable to conform his conduct to the rules of professional conduct. Respondent's prior four-year suspension failed to deter commission of the very same misconduct charged in this case. Thus, we are of the opinion that the Administrator's recommendation of a one-year suspension and until further order of the Court is too lenient a penalty in view of respondent's recidivism, his total disregard of his duty to cooperate with the ARDC, and his less than candid dealings with his clients and the ARDC. We would expect that an attorney who has been suspended from the practice of law for four years for neglecting client matters and failing to cooperate with the ARDC would have a heightened awareness of the necessity to conform strictly to all of the requirements of the Rules of Professional Conduct.
Other cases involving comparable misconduct have imposed a suspension of more than one year. In In re Hultquist, 01 SH 77, M.R.18297 (September 20, 2002), the respondent neglected a client matter, failed to return unearned fees, and failed to cooperate in his disciplinary proceedings. The respondent was suspended for three years and until further order
of the Court. Similarly, in In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986), the respondent neglected a client matter, delayed in responding to the ARDC and then answered falsely with fabricated evidence, and failed to participate in his disciplinary proceeding until he after he was suspended. Houdek was suspended for two years and until further order of the Court Significantly, unlike Respondent, neither Hultquist nor Houdek had been previously disciplined for neglecting client matters.
We agree with the Administrator that an "until further order of court" provision is necessary. This condition is properly imposed on a recidivist to ensure that a respondent is not reinstated until the Court "is satisfied that he will not engage in similar misconduct in the future." In re Levin, 101 Ill.2d 535, 543, 463 N.E.2d 715 (1984). Additionally, noncooperation in the disciplinary process demonstrates that the attorney is unwilling or unable to meet professional standards of conduct and warrants an "until further order of court" sanction. See In re Houdek, 113 Ill.2d at 327.
Accordingly, for the reasons stated herein, we recommend Respondent be suspended for two years and until further order of the Court.
Date Entered: January 28, 2008
|Michel C. Greenfield, Chair, with Jay A. Frank and K.F. Kitchen, II concurring.|