Filed November 7, 2007
In re Ryan C. Fitzgibbons
Commission No. 07 CH 25
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) failure to act with reasonable diligence and promptness in representing a client; 2) failure to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information; 3) failure to respond to a lawful demand for information from the ARDC; 4) conduct which is prejudicial to the administration of justice; and 5) conduct which tends to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 1.3, 1.4, 8.1(a)(2), 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: Suspension of three years until further order of Court
DATE OF OPINION: November 7, 2007
HEARING PANEL: William E. Hornsby, Jr., Chair, Shelby Webb, Jr., Cheryl M. Kneubuehl
ADMINISTRATOR'S COUNSEL: Scott A. Kozlov
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
RYAN C. FITZGIBBONS,
Commission No. 07 CH 25
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 10, 2007, at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") in Chicago, Illinois before a hearing panel consisting of William E. Hornsby, Jr., Chair, Shelby Webb, Jr., and Cheryl M. Kneubuehl. Scott A. Kozlov represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Ryan C. Fitzgibbons did not appear at hearing and was not represented by counsel.
PLEADINGS AND PRE-HEARING PROCEEDINGS
On March 29, 2007, the Administrator filed a five-count Complaint against Respondent. The Complaint alleged that Respondent failed to pursue four client matters, failed to communicate with his clients, and failed to respond to demands for information from the ARDC.
On July 11, 2007, Respondent was served with the Complaint pursuant to Commission Rule 214(b), which allows service by regular mail if a person authorized to make personal service files an affidavit stating that Respondent is concealed within the state so that process cannot be served upon him. An ARDC investigator, Humberto Bobadilla, filed an affidavit stating that in April 2007, he attempted to contact Respondent by telephone at each number listed
on Respondent's most recent registration. Respondent's business telephone was disconnected, and a message at his home telephone number indicated that his voice mailbox was full. Bobadilla then visited Respondent's business address and home address, but found that his office had been vacated and no one responded at his home address. Bobadilla visited Respondent's home address on four additional occasions and each time left business cards in plain sight with a request that Respondent contact him. On April 23, 2007, Bobadilla traveled to Respondent's home address and spoke to an adult male who identified himself as Respondent's brother, Martin Fitzgibbons. Fitzgibbons acknowledged that Respondent lived at that address but stated he was not home. Bobadilla then gave Fitzgibbons a copy of the Complaint packet to deliver to Respondent. On three subsequent occasions Bobadilla attempted to reach Respondent at his home address, but no one answered. On June 28, 2007, Bobadilla telephoned Respondent at a cellular telephone number obtained from Respondent's landlord. Respondent did not answer the call, but several hours later Bobadilla received a call from the cellular number he had dialed. The caller identified himself as "Ryan Fitzgibbons" and asked Bobadilla to identify himself. When Bobadilla stated his name and title, Respondent terminated the call. Bobadilla's affidavit states that he received no further communication from Respondent, and believes that Respondent concealed himself so that service could not be made upon him.
Respondent did not file an answer to the Complaint. Likewise, he did not file a report disclosing witnesses, did not respond to the Administrator's request to produce documents, and did not participate in the pre-hearing conference. On August 31, 2007, pursuant to motions filed by the Administrator, the hearing panel Chair entered an order deeming the allegations of the Complaint admitted, barring Respondent from presenting the testimony of any witnesses at hearing, and barring him from presenting any documentary evidence.
At the hearing in this matter, the Administrator examined four witnesses and tendered five exhibits, which were admitted into evidence. The evidence, along with the admitted allegations of the Complaint, established the following facts.
In July 2004, Darlene Barnes was involved in a five-car collision. The vehicle she was driving, which was stopped in traffic at the time of the accident, was totaled and she sustained injuries to her neck and back. (Tr. 19-20).
In December 2004, Barnes retained Respondent to represent her in connection with a claim against the driver who hit her vehicle. Respondent's fee was to be one-third of the amount of any settlement or forty percent of the recovery if the case went to trial. Barnes provided Respondent with information regarding her medical treatment and bills, and Respondent informed Barnes that he would pursue her claim. (Tr. 20-21).
From November 2006, to January 2007, Barnes telephoned Respondent numerous times and left messages requesting that he call her. She also contacted an attorney for whom Respondent had worked to determine how to reach Respondent. Respondent received Barnes' messages, but did not return the calls. (Tr. 22-23).
Respondent knew or should have known that the limitation period for Barnes' claim expired on or about July 14, 2006. At no time did he file a complaint on her behalf, and her claim is now time-barred. (Tr. 21).
Barnes testified that, because of Respondent's inaction with respect to her case, she has suffered a financial loss. She has already paid $10,000 in medical bills, and has been advised that a surgical procedure will improve the problem in her neck. She has not scheduled the
surgery, however, because she cannot afford to pay for it. Barnes currently suffers a great deal of discomfort as well as other problems, including clumsiness, due to her injury. (Tr. 19-20, 23-24).
Barnes stated that because of Respondent's mishandling of her claim, she has lost faith in attorneys. (Tr. 24).
In December 2004, Bridgett Palmer sustained injuries to her arm, neck and back when she fell down the back stairs of her apartment building. Her fall was caused by soot that remained on the stairs after roof repairs to the building. Palmer incurred medical expenses of approximately $2,000, missed work, and suffered a great deal of pain. (Tr. 35-36).
On or about December 22, 2004, Palmer hired Respondent to pursue a claim against her landlord in relation to her injuries. Palmer and Respondent agreed that Respondent's fee would be one-third of any amount recovered if the claim was settled prior to trial, or forty percent of a recovery if the case proceeded to trial. Respondent informed Palmer that he would be pursuing her claim. (Tr. 36-38).
At no time did Respondent file a complaint on Palmer's behalf and her claim is now time-barred. Respondent knew or should have known that the limitation period for her claim expired on or about December 16, 2006.
From late 2006, to January 2007, Palmer telephoned Respondent approximately forty times to determine the status of her claim. Although she left messages requesting that Respondent call her, she did not hear from him. On a number of occasions when she called Respondent, she received a recorded message that he was "out of the state". Palmer also attempted to reach Respondent by visiting his office and leaving messages for him with the
receptionist. After several visits she was informed that Respondent was no longer at that address. Palmer testified that Respondent had not informed her that he was changing addresses and when she learned of his move, "it was like a hit in the face." (Tr. 38-39, 41).
Palmer testified that Respondent's conduct caused her to suffer financially. Moreover, she now has a "bad outlook" toward attorneys. (Tr. 40).
In July 2004, Carolina Romero was a dietary assistant for Loyola University Hospital ("Loyola"), and was injured at work when she came in contact with scalding water. She suffered second degree burns to her arms and legs and could not return to work for three months. (Tr. 26).
In October 2005, Romero hired Respondent to pursue a worker's compensation claim against Loyola and agreed that Respondent's fee would be twenty percent of any amount recovered. On October 20, 2005, Respondent filed an Application for Adjustment of Claim with the Illinois Industrial Commission on Romero's behalf. Thereafter, Respondent received a notice of a status hearing scheduled for December 9, 2005, but did not inform Romero of the hearing date. Neither Respondent nor Romero appeared for the hearing and the case was stricken from the call. (Tr. 27-28, Adm. Ex. 5).
In February 2006, Romero agreed to settle her claim against Loyola for a payment of $10,325 over forty weeks. In September 2006, Loyola agreed to those terms, pending approval by the Industrial Commission. At no time did Respondent file a petition or take any other action to obtain approval of the settlement, or to otherwise pursue Romero's claim.
After Romero's initial communication with Respondent, she encountered problems communicating with him. When she did speak to him, he offered excuses as to why her case had
not been completed. Between December 2006, and January 2007, Romero phoned Respondent on numerous occasions to inquire about the status of her claim, and left messages requesting a return call. Although Respondent received the messages, he did not return the calls. On January 9, 2007, Romero sent Respondent a letter discharging him as her attorney and requesting that he provide her with a copy of her file. The letter was returned to her and she has never received her file from Respondent. (Tr. 29-31).
Romero retained another attorney who pursued her claim and obtained a recovery on her behalf. Romero testified that Respondent's actions were unprofessional and, as a result of his conduct, her recovery was delayed and she no longer trusts attorneys. (Tr. 29, 32).
In January 2005, Respondent agreed to represent John Napolitano in a worker's compensation claim, and to accept as his fee twenty percent of any amount recovered. On February 14, 2005, Respondent filed an Application for Adjustment of Claim with the Illinois Industrial Commission on behalf of Napolitano. The following day the Commission sent a notice to Respondent informing him that the matter was scheduled for a status hearing on March 17, 2005. Respondent did not inform Napolitano of the status hearing and on the scheduled date of hearing, neither Respondent nor Napolitano appeared. No orders were entered that day and the case was stricken from the call. (Adm. Ex. 5).
Between March 2005, and April 2006, Respondent and Napolitano spoke several times about Napolitano's claim. During those conversations, Respondent informed Napolitano that he would be pursuing Napolitano's claim. Between March 2005, and January 2007, Respondent did not file any documents or take any action to pursue Napolitano's worker's compensation claim.
From April 2006, to January 2007, Napolitano telephoned Respondent numerous times to determine the status of his claim, and left messages on each occasion. Respondent did not return the calls. As of January 2007, Respondent abandoned his representation of Napolitano by his lack of attention to the matter. (Adm. Ex. 5).
On June 9, 2006, John Napolitano sent correspondence to the ARDC requesting an investigation of Respondent's handling of his worker's compensation claim. The Administrator initiated an investigation and, by letter of June 13, 2006, requested that Respondent provide information responsive to Napolitano's allegations within fourteen days. Respondent received the letter but, as of July 14, 2006, he had not responded to the request. The Administrator then sent a letter to Respondent notifying him of his obligation to respond pursuant to Commission Rule 53. On August 2, 2006, Respondent responded to Napolitano's allegations. On August 8, 2006, the Administrator sent Respondent a letter requesting additional information to be supplied within fourteen days. Respondent received that letter shortly after it was sent. (Adm. Ex. 4).
By letter of January 5, 2007, Carolina Romero requested that the Administrator investigate Respondent's handling of her worker's compensation claim. The Administrator initiated an investigation and, by letter of January 5, 2007, requested that Respondent submit information relative to Romero's allegations within fourteen days. (Adm. Ex. 3).
By letter of January 18, 2007, Darlene Barnes requested that the Administrator investigate Respondent's handling of her personal injury claim. The Administrator initiated an investigation and, by letter of January 22, 2007, requested that Respondent provide information responsive to Barnes' allegations within fourteen days. (Adm. Ex. 1).
By correspondence dated January 22, 2007, Bridgett Palmer requested that the Administrator investigate Respondent's handling of her personal injury claim. The Administrator initiated an investigation and, by letter of January 29, 2007, requested that Respondent provide information responsive to Palmer's allegations within fourteen days. (Adm. Ex. 2).
As of February 2, 2007, Respondent had not responded to the Administrator's requests for information relating to the allegations asserted by Napolitano, Romero, Barnes and Palmer. On that date the Administrator issued a subpoena duces tecum commanding Respondent to appear at the ARDC's offices on March 1, 2007, and to produce materials relating to his handling of each of the matters. Respondent was served with the Administrator's subpoena by substitute service on February 23, 2007.
As of March 28, 2007, the date the Inquiry Board voted to file a complaint against Respondent relating to his handling of the Napolitano, Romero, Barnes, and Palmer matters, Respondent had not appeared, produced any materials, or provided any information in compliance with the Administrator's subpoena duces tecum. At no time has the Administrator excused or waived Respondent's appearance or production of materials in response to the subpoena.
Evidence Relating to Aggravation
Thomas Peters, registrar for the ARDC, testified that he maintains the master roll of attorneys currently licensed to practice law in the State of Illinois. He stated that Respondent was removed from the master roll as a result of his failure to pay his registration dues for 2007.
Because Respondent's name has been removed from the roll of active attorneys, he cannot practice law in Illinois. (Tr. 15-18).
The Administrator reported that Respondent has not been previously disciplined by the Illinois Supreme Court or any Board of the Commission.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill.2d 477, 577 N.E.2d 762 (1991).
Having considered the Complaint, Respondent's failure to appear or participate in these proceedings in any manner, the order of August 31, 2007, by which the allegations of the Complaint were deemed admitted, and the evidence presented at the hearing, we find by clear and convincing evidence that Respondent engaged in the acts alleged and committed the following misconduct as charged in the complaint:
failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (Counts I-IV);
failure 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 (Counts I-IV);
failure to respond to a lawful demand for information from the ARDC, in violation of Rule 8.1(a)(2) (Count V);
engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (Counts I-V);
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 (Counts I-V).
Having found that Respondent engaged in wrongdoing, we must determine the appropriate discipline warranted by the misconduct. In determining the proper sanction, we consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill.2d 515, 645 N.E.2d 906, 912 (1994).
We also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill.2d 380, 583 N.E.2d 526, 535 (1991). By failing to appear at the hearing, Respondent forfeited his opportunity to present any evidence of mitigating circumstances.
In aggravation, Respondent's failure to attend and participate in these proceedings is a significant factor weighing against him. His absence demonstrates not only a lack of concern for his own professional fate, but also his disrespect for the disciplinary process. See In re Brody, 65 Ill.2d 152, 357 N.E.2d 498, 500 (1976) (an attorney's failure to cooperate in his or her own disciplinary proceeding demonstrates a want of professional responsibility and is a factor to be considered in aggravation for the purpose of determining an appropriate sanction). Further, his lack of attention to his own matter is strong evidence of his inability to provide diligent representation to clients.
We also take into account the harm caused by Respondent's conduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care"). The harm in this case took various forms. Perhaps most significant, Respondent's actions caused two clients to lose their right to pursue their claims, and both of those clients testified to medical expenses they had incurred. Respondent's conduct also caused emotional harm to his clients. Each of the witnesses expressed frustration at not being able to communicate with Respondent or determine the status of their cases. The Supreme Court has recognized that an unexplained delay in pursuing a case inflicts "needless anxiety" upon the client and undermines the client's confidence in the lawyer's trustworthiness. In re Smith, 168 Ill.2d 269, 659 N.E.2d 896 (1995). Further, at least one client stated that she had to hire another attorney to complete her case and obtain a recovery. A client is harmed when he or she has to go to the "expense and inconvenience" of hiring another attorney. In re Demuth, 126 Ill.2d 1, 533 N.E.2d 867 (1988).
We also consider in aggravation the fact that Respondent did not engage in an isolated instance of misconduct. Rather, his actions reflect a pattern of misdeeds involving four different client matters and the ARDC. See In re Lewis, 138 Ill.2d 310, 562 N.E.2d 198 (1990); In re Smith, 168 Ill.2d 269, 659 N.E.2d 896 (1995).
Finally, we heard testimony that Respondent did not pay his registration dues for 2007 and therefore is no longer on the roll of attorneys currently licensed to practice law in Illinois. In In re Levinson, 71 Ill.2d 486, 376 N.E.2d 998 (1978) the Court observed that an attorney's mistake or oversight in failing to pay a registration fee does not arouse concern, but if the failure is part of an irresponsible course of conduct, it is persuasive of the necessity for substantial discipline in order that the public may be protected from the effects of that irresponsibility. See
also In re Roytenberg, 04 CH 48, M.R. 20155 (May 20, 2005), In re Triplett, 05 CH 67, M.R. 21016 (September 20, 2006). In this case we have no way of determining whether Respondent's failure to pay his registration dues is part and parcel of his lack of diligence, or whether it is a reflection of his disinterest in continuing the practice of law. Under either scenario, however, his failure is a factor that further aggravates his misconduct.
Respondent neglected four client matters, failed to communicate with his clients, and failed to respond to requests for information from the ARDC. The Administrator suggested that this misconduct, aggravated by the aforementioned circumstances, warrants a suspension of three years until further order of the Court. We agree.
The Administrator directed our attention to two cases in which the attorneys were suspended for three years until further order of the Court for conduct similar to that which occurred in this case. In In re Lee, 97 CH 107, M.R. 15430 (February 1, 1999) the attorney engaged in two instances of neglect and misrepresentation, failed to respond to requests for information from the ARDC, and continued to practice law after failing to pay his annual registration dues. In In re Kemph, 02 CH 47, M.R. 18621 (March 19, 2003) the attorney neglected three client matters, made a misrepresentation to one client, failed to refund unearned fees, and failed to respond to requests for information from the ARDC. The attorney had been previously disciplined for conversion and neglect.
We also consider two additional cases in which the Court imposed three-year suspensions until further order of the Court. In In re Rheinstrom, 93 CH 449, M.R. 11765 (January 23, 1996) the attorney engaged in two instances of neglect, made false statements to the ARDC, failed to respond to a request for information from the ARDC, and was combative and unremorseful at his hearing. In In re Pirtle, 95 SH 352, M.R. 11897 (January 23, 1996) the attorney neglected three
client matters, failed to communicate with the clients, and failed to return unearned fees to two of the clients.
In Kempf, Lee, and Pirtle, the attorneys failed to cooperate in the disciplinary process and failed to appear at their hearings. The Hearing Boards in those cases weighed that factor heavily in making their recommendations, as it not only deprived them of the opportunity to personally evaluate the attorney, but strongly indicated the attorneys' indifference to the obligations and standards of the legal profession. In recommending that the suspensions remain in effect until further order of Court, each opinion cited to In re Houdek, 113 Ill.2d 323, 327-28, 497 N.E.2d 1169, 117071 (1986), wherein the Court also was confronted with an attorney who failed to answer the complaint and failed to appear at his disciplinary hearing. In determining the appropriate sanction, the Court stated that "the lack of evidence that [the attorney] was willing or able to meet professional standards of conduct in the future" warrants a suspension until further order of the Court.
Our overarching concern is to protect the public and maintain the reputation of the legal profession. Because we did not have an opportunity to observe Respondent and hear any explanation for his conduct, we do not know why he abandoned his clients and, from all indications, deserted his practice. Therefore we believe that Respondent's right to practice law should not only be suspended for a considerable length of time but, prior to re-entering the practice, he should be required to explain his conduct and prove his reformation and commitment to the legal profession in a reinstatement proceeding.
Having considered the misconduct which occurred, the serious aggravating factors, and the relevant caselaw, we recommend that Respondent Ryan C. Fitzgibbons be suspended from the practice of law for a period of three years and until further order of Court.
Date Entered: November 7, 2007
|William E. Hornsby, Jr., Chair, with Shelby Webb, Jr. and Cheryl M. Kneubuehl, concurring.|