BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

 DENNIS R. SCHUMACHER,

Attorney-Respondent, 

No.  3124986.

 

Commission No. 07 CH 20

FILED -  June 24, 2008

SECOND AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney Wendy J. Muchman, pursuant to Supreme Court Rule 753(b), complains of Respondent Dennis R. Schumacher, who was licensed to practice law in Illinois on November 5, 1979, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

COUNT I
(Battery - Sarah Day)

1. On or about April 29, 2005, Sarah R. Day (hereinafter referred to as "Sarah") met with Respondent to determine whether Respondent would agree to represent her in her pending dissolution of marriage matter, In re Marriage of Sarah R. Day v. Donald E. Day, 05-D-19 pending in the Fifteenth Judicial Circuit, Ogle County, Illinois. Sarah's first attorney, Alan Cargerman, had been recalled to the bench and had to file a motion to withdraw as her counsel because he could not complete her case.

2. On May 4, 2005, Respondent agreed to represent Sarah in the dissolution matter. At all times relevant there were issues of support of the partie's one minor child, maintenance and property division. On May 10, 2005, Respondent filed a substitution of attorneys, substituting his appearance for that of Cargerman.

3. At all times alleged in this count, Sarah had a part-time job as a home health aid, and no extra funds to pay an attorney. Respondent received from Cargerman, $1,253.00, representing the unused portion of Sarah's previously paid retainer fee, which Sarah had originally borrowed from her employer. In addition to those sums, Sarah had no resources with which to pay an attorney. Further, Sarah's husband was not making any financial contribution for child support, maintenance or any other matter.

4. At all times alleged in this count, Respondent had a fiduciary duty to Sarah which required that he not abuse his position of authority and trust, and that he place the best interests of his client above his own self-interests.

5. On or about May 23, 2005, Respondent prepared and filed a petition for temporary relied on behalf of Sarah in case no. 05 D 19. The petition requested temporary child support and maintenance for Sarah, health insurance for Sarah and the minor child, $75 toward family credit card debt, and that Sarah receive custody of the child. On May 25, 2005, Respondent filed a notice of motion scheduling the petition for temporary relief for hearing on June 15, 2005 at 9:00 a.m. before Judge Stephen Pemberton.

6. At some time on or about June 15, 2005, at the request of Donald's attorney, the date for hearing on the petition for temporary relief was continued to June 21, 2005.

7. On June 3, 2005, Sarah called Respondent to advise him that she was concerned stating that her husband, Donald, was threatening and stalking her. Respondent discussed with Sarah the possibility of an order or protection.

8. At all times alleged in this complaint, there was a criminal statute in Illinois, 720 ILCS 5/12-3, which provides, "Battery. (a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual."

9. At some point prior to June 15, 2005, at Respondent's request, a meeting was scheduled at his office with Sarah to discuss the presentation of her petition for temporary relief.

10. On June 15, 2005, Respondent and Sarah met in his office. Respondent asked Sarah to give him a hug. Sarah gave Respondent a hug. At that point, Respondent proceeded to grab Sarah's buttocks, pull her toward him, stick his tongue in her mouth, simulate the turning of her breasts and place her hand outside his pants on his partially erect genitals, stating to her "see what you've done." Sarah repeatedly stated to Respondent; "Okay that's enough"; but he did not stop. Respondent said other things to Sarah including "You don't know what you do to me"; and "Why don't you lay down on the floor right there?"

11. Sarah did not have the finances to hire another attorney or take care of her minor child. She wanted to proceed to have her petition for temporary relief heard and finalize her divorce. Respondent requested she return the next morning, June 16, to finalize her financial affidavit.

12. On the morning of June 16, Sarah made two phone calls to Respondent's office during which she reported to his paralegal, Gwen Farley, and his secretary, Stephanie Wendt, what had occurred in Respondent's office on the night of June 15. She advised Ms. Wendt that she wanted her case finished, but she did not want to be alone in an office with Respondent. Wendt advised Sarah that she would be certain Sarah did not have to be alone with Respondent.

13. Stephanie Wendt is married to Ken Wendt, who is an employee of the Ogle County Sheriff's office. Stephanie told her husband about her conversation with Sarah. On Saturday June 17, Ken went to Respondent's home and apprised him of the statements Sarah had made to Respondent's office personnel.

14. On June 21, 2005, Respondent withdrew from representation of Sarah in her dissolution of marriage matter. No order was entered on the petition for temporary relief nor was the dissolution matter concluded.

15. As a result of the conduct set forth above, Respondent has engaged in the following misconduct:

  1. representing a client if the representation of that client may be materially limited by the lawyer's own interest in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct;

  2. breach of fiduciary duty;

  3. overreaching the attorney-client relationship;

  4. committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct, by committing battery in violation of 720 ILCS 5/12-3;

  5. conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  6. conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 771.

COUNT II
(Battery - Leah Miller)

1. Prior to March 2, 2000, Respondent agreed to represent Dirk Miller ("Dirk") in a dissolution of marriage proceeding. Dirk advised Respondent that he was reluctant to divorce his wife, Leah Miller ("Leah"), but acknowledged that Leah was determined to seek a dissolution of their marriage. Leah intended to proceed pro-se in order to save money on attorney's fees and because the Millers had agreed upon most of the issues relating to a dissolution.

2. At all times alleged in this complaint, Respondent had a fiduciary duty to Dirk which required that he not abuse his position of authority and trust, and that he place the best interests of his client above his own self-interests.

3. Prior to March 2, 2000, Respondent asked Dirk and Leah to come to his office to discuss the details of the divorce. At that meeting, Leah and Dirk discussed with Respondent the issues they had resolved. At the conclusion of the meeting, Respondent advised Dirk that although he was representing Dirk, part of his responsibility to Leah was to "counsel" her and that he therefore required some time alone with Leah. Dirk stepped out of Respondent's office.

4. After Dirk left Respondent's office, Respondent stated to Leah that most divorces resulted from disputes over sex or money and asked her to explain the reasons that she sought a divorce. Leah advised Respondent that her husband worked nights and that their physical relationship had suffered as a result. Leah began to cry, explaining her reasons for dissolving the marriage and for leaving Dirk.

5. Respondent hugged Leah and drew her in close to his body, pressing her against his erect genitals. Leah pulled away and Respondent then grabbed Leah's hand and placed it upon his genitals, over his clothing. Leah told Respondent to stop and then left Respondent's office.

6. At all times alleged in this complaint, there was a criminal statute in Illinois, 720 ILCS 5/12-3, which provides, "Battery. (a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual."

7. On or about March 2, 2000, Respondent filed a Petition for Dissolution of Marriage in Ogle County, Illinois on behalf of Dirk, captioned In Re the Marriage of Dirk Miller and Leah Miller, Case No. 00 D 45.

8. Subsequent to March 2, 2000, Respondent again met with Leah alone in his office. At that time, Respondent made inappropriate comments to Leah of a sexual nature, remarking to Leah that she would probably be good in bed because she had a "fiery personality." Respondent again hugged Leah, drawing her in close to his genitals.

9. In subsequent telephone conversations with Leah, Respondent frequently made comments of a sexual nature to Leah. Leah repeatedly attempted to steer their conversations away from Respondent's suggestive remarks.

10. As a result of the conduct set forth above, Respondent has engaged in the following misconduct:

  1. representing a client if the representation of that client may be materially limited by the lawyer's own interest in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct;

  2. failing to withdraw when the lawyer knows or reasonably should know that continued employment will result in violation of these Rules in violation of Rule 1.16(a)(2) of the Illinois Rules of Professional Conduct;

  3. breach of fiduciary duty;

  4. committing a criminal act that reflects adversely on the lawyer's honesty, trust worthiness or fitness as a lawyer in other respects by violation 720 ILCS 5/13-3 in violation of Rule 8.4 (a)(3) of the Illinois Rules of Professional conduct;

  5. conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and,

  6. conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.

COUNT III
(Improper Conduct - Teresa Brevoort)

1. Prior to April 26, 2004, Respondent agreed to represent Teresa Brevoort ("Brevoort") in a dissolution of marriage proceeding. On or about April 26, 2004, Respondent filed a Petition for Dissolution of Marriage on behalf of Brevoort in Ogle County, Illinois, captioned In re the Marriage of Teresa Brevoort and David Brevoort, Case No. 04 D 68.

2. At all times alleged in this complaint, Respondent had a fiduciary duty to Brevoort which required that he not abuse his position of authority and trust, and that he place the best interests of his client above his own self-interests.

3. At all times alleged in this complaint, there were issues relating to the division of marital property.

4. During the course of Respondent's representation, Respondent asked Brevoort to explain her reasons for wanting a divorce. Brevoort advised Respondent that her husband was an alcoholic and that they had not been intimate in three years. Respondent remarked to Brevoort that if she were his wife she wouldn't be left alone.

5. Respondent also appeared once at Brevoort's home uninvited, stating he wished to discuss issues relating to her dissolution. Brevoort was fearful of Respondent and uncomfortable with the presence of Respondent at her home. Respondent left when he realized Brevoort's son was at home at the time.

6. On or about March 16, 2004, Respondent telephoned Brevoort. Brevoort was in her car with a friend when she received Respondent's telephone call. Because of Respondent's prior inappropriate sexual conduct, Brevoort requested that her friend, Linda Wedig, who was present in the car, listen to Brevoort's conversation with Respondent.

7. In his telephone conversation with Brevoort, Respondent asked Brevoort to meet him. Brevoort asked Respondent what they needed to meet about and Respondent replied, "a blow job." Brevoort was shocked, and asked Respondent whether Respondent had been drinking.

8. As a result of the conduct set forth above, Respondent has engaged in the following misconduct:

  1. overreaching the attorney-client relationship;

  2. breach of fiduciary duty;

  3. representing a client if the representation of that client may be materially limited by the lawyer's own interest in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct;

  4. failing to withdraw when the lawyer knows or reasonably should know that continued employment will result in violation of these Rules in violation of Rule 1.16(a)(2) of the Illinois Rules of Professional Conduct;

  5. conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct: and

  6. conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770.

COUNT IV
(Improper Conduct - Michelle Johnson)

1. On or about May 1, 2006, Respondent's office, agreed to represent Michelle Johnson ("Johnson") in a post-decree proceeding, then pending in Lee County, captioned In re Michelle Johnson v. Todd Johnson, Case No. 97 D 122 and caused an appearance to be filed on her behalf in that matter.

2. Between May 1, 2006 and September 7, 2006, Respondent represented Johnson in matters relating to a Petition for Contempt, a Petition to Modify Visitation filed against Johnson and a Petition for Rule to Show Cause which Johnson filed against her ex-husband, Todd.

3. At all times alleged in this complaint, Respondent had a fiduciary duty to Johnson which required that he not abuse his position of authority and trust, and that he place the best interests of his client above his own self-interests.

4. Throughout the time Respondent represented Johnson, Respondent made inappropriate and suggestive remarks to Johnson, complimenting her appearance, remarking that he could not believe her ex-husband ever left her, discussing the commencement of a sexual relationship, getting "naked" together, and discussing oral sex. Respondent would call Johnson and engage in lengthy conversations of this nature, including asking her to join him on a trip to Springfield so they could have sexual relations. Respondent and Johnson would engage in touching and fondling including at conference rooms at the courthouse.

5. Although Johnson was attracted to Respondent, she would often inquire of Respondent whether it was appropriate for them to engage in these conversations or sexual relations, because he was her attorney. Johnson also had concerns since Respondent was married.

6. At some time on or about August 26, 2007, Johnson told Respondent she no longer required his representation. Johnson believed the relationship was becoming too personal and it was not proper for Respondent to continue to represent her in her case. On or about that date, Respondent leaned up against her and rubbed himself against her, touching her thighs and telling her that she didn't know what she did to him.

7. At no time between, September 7, 2007, the date Respondent withdrew from representation, and October 9, 2007, did Johnson pay her outstanding attorneys fees of $1,956.26.

8. On October 9, 2007, Respondent caused a small claims complaint to be filed against Johnson requesting the balance of his fees be paid. On or about October 15, 2007, Johnson was served with the small claims complaint. Between October 15, 2007 and November 14, 2007, Johnson called Respondent and told him she was surprised by the lawsuit since she had paid him a retainer of $1600 which she thought covered the time Respondent has spent on legal work. She reminded Respondent that much of their time was spent discussing personal matters. Respondent told Johnson he would dismiss the case and she did not need to attend the first court date of November 14, 2007.

9. As a result of her conversation with Respondent, on November 14, 2007, Johnson did not appear for the first court date of the small claims matter. On November 14, 2007, Respondent appeared in court and had a default judgment in the amount of $1956.26 plus costs in the amount of $188.00 entered against Johnson. At no time did Respondent dismiss the small claims case.

10. Respondent's statements to Johnson described in paragraph 8 above that he would dismiss the small claims case were false and Respondent knew they were false because at no time did Respondent dismiss the small claims case against Johnson nor did he advise Johnson to appear in court to prevent the entry of a judgment against her.

11. At some time between November 14, 2007 and February 13, 2008, Johnson was served with an alias citation to discover assets. The alias citation was returnable on February 13, 2008. On February 13, 2008 Johnson appeared in court pursuant to the alias citation. At that time, Respondent's firm was represented by an associate attorney, Shane Temple. When the case was called, Johnson was sworn in by the Judge and advised to proceed to the conference room to be questioned by Mr. Temple relating to her finances.

12. On February 13, 2008, after Johnson was sworn by the Judge, Temple and Johnson went into a conference room. At that time, Johnson advised Temple that she was surprised by the lawsuit, that she believed much of the time charged by Respondent was for personal time wherein she and "Denny" discussed the mutual attraction between the two of them as well as the possibility of oral sex. She advised Temple that Respondent had even invited her down to Springfield and that she had eventually requested he withdraw from her case as their relationship was becoming too personal. She also apprised Temple that the alias citation surprised her because after being served with the small claims complaint, she contacted Respondent and discussed the matter with him, and he told her that he would dismiss the complaint so she need not appear for the first court date.

13. As a result of the conduct set forth above, Respondent has engaged in the following misconduct:

  1. overreaching the attorney-client relationship;

  2. breach of fiduciary relationship;

  3. representing a client if the representation of that client may be materially limited by the lawyer's own interest in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct;

  4. failing to withdraw when the lawyer knows or reasonably should know that continued employment will result in violation of these Rules in violation of Rule 1.16(a)(2) of the Illinois Rules of Professional Conduct;

  5. conduct involving dishonesty, fraud, deceit and misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;

  6. conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  7. conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 771.

WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held pursuant to Supreme Court Rule 753(b), and the Panel make findings of fact, conclusions of fact and law, and a recommendation of such discipline as is warranted.

Wendy J. Muchman
Counsel for Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312 565-2600
Facsimile: (312) 565-2320
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Wendy J. Muchman