Filed February 1, 2008
In re Sandra Kay Coplien
Commission No. 07 CH 45
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 keep a client reasonably informed about the status of a matter; 3) failing to make reasonable efforts to expedite litigation consistent with the interests of the client; 4) failing to respond to a lawful demand for information from a disciplinary authority; 5) engaging in conduct that is prejudicial to the administration of justice; and 6) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 1.3, 1.4(a), 3.2, 8.1(a)(2), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: Six months suspension and until further order of the Court.
DATE OF OPINION: February 1, 2008.
HEARING PANEL: Mark L. Karasik, Brian W. Bell and Fran McConnell Williams.
ADMINISTRATOR'S COUNSEL: Tracy L. Kepler.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
SANDRA KAY COPLIEN,
Commission No. 07 CH 45
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on November 19, 2007 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") in Chicago, Illinois before a hearing panel consisting of Mark L. Karasik, Brian W. Bell and Fran McConnell Williams. Tracy L. Kepler represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Sandra Kay Coplien did not appear at hearing and was not represented by counsel.
THE COMPLAINT AND PRE-HEARING RECORD
On May 29, 2007, the Administrator filed a two-count Complaint against Respondent. The Complaint alleged that Respondent failed to pursue a client matter, failed to communicate with her client, and failed to respond to the Administrator's requests for information.
On June 28, 2007 Respondent was personally served with a copy of the Administrator's Complaint and a copy of the Supreme Court Rules. Respondent did not file an answer to the Complaint, and on July 31, 2007 the hearing panel Chair entered an order deeming the allegations of the Complaint admitted.
Respondent failed to file a witness report pursuant to Commission Rule 253 and failed to comply with the Administrator's requests for discovery. As a consequence of those failures, the
hearing panel Chair granted the Administrator's motion to bar Respondent from testifying at hearing, calling any witnesses, or introducing any documents into evidence.
The Administrator presented two witnesses, attorneys Ann Brady and Althea Welsh, and tendered twenty-one exhibits which were admitted into evidence. The evidence, along with the admitted allegations of the Complaint, established the following facts.
On August 2, 1999, Zivile Clampitt, now Zivile Rackauskas ("Rackauskas"), filed a pro se petition for dissolution of marriage against Harold G. Clampitt ("Clampitt") in the Circuit Court of Cook County. On September 18, 2002, the Court entered a Judgment of Dissolution which set forth the terms of visitation and child support for four minor children. (Adm. Ex. 1, 2).
Between September 18, 2002 and September 15, 2004, Clampitt did not comply with the terms of the Judgment and on October 4, 2004, Rackauskas filed a pro se Petition for Rule to Show Cause against Clampitt. On or about October 13, 2004, Rackauskas requested that Respondent represent her, and Respondent agreed. On October 13, 2004, Respondent appeared in court and filed an appearance on behalf of Rackauskas. At that time the matter was continued to November 17, 2004 for a status hearing. (Adm. Ex. 3, 4).
On November 17, 2004, Clampitt filed three separate pro se petitions against Rackauskas regarding visitation and child support. Notices of the petitions were served upon Respondent and the case was continued to January 6, 2005 for status. At no time did Respondent advise Rackauskas of Clampitt's filing of the petitions, or file a response to any of the petitions. (Adm. Ex. 5).
On November 29, 2004, Clampitt filed a pro se Emergency Motion for Temporary Visitation. Notice of the motion, which was scheduled for hearing on December 13, 2004, was served on Respondent. At no time did Respondent advise Rackauskas of the motion or file a response to the motion. At the December 13, 2004 court date, all pending matters were continued to January 6, 2005.
Although Respondent knew of the January 6, 2005 court date, she did not appear in court on behalf of Rackauskas. The Court entered an order dismissing Rackauskas' petition for want of prosecution, and held Rackauskas in default on Clampitt's petitions. The Court further ordered that the matter be continued to February 7, 2005 for hearing on all of Clampitt's pending petitions and motions. (Adm. Ex. 6).
On February 7, 2005, Respondent did not appear in court on behalf of Rackauskas, but did send an associate to request a continuance. The matter was continued to February 10, 2005. Although Respondent knew of that court date, she did not appear on February 10. On February 16, 2005, the Court entered an order which reduced Clampitt's monthly child support obligation, granted him additional visitation, held Rackauskas in contempt of court for purported interference with visitation, and fined her $1,000 to be paid within 60 days. At no time did Respondent notify Rackauskas of the Court's February 16, 2005 order. Between November 2004 and February 26, 2005, Rackauskas made unsuccessful attempts to contact Respondent by telephone regarding the status of her case. (Adm. Ex. 7).
Sometime prior to February 26, 2005, Respondent contacted attorney Ann C. Brady regarding the referral of Rackauskas' case. Respondent informed Brady that on January 6, 2005 she was unable to appear in court due to a snow storm, but had left a telephone message with the court that she was detained. With respect to the February 10, 2005 court date, Respondent
reported that she experienced a medical emergency, went to Advocate Health Care for emergency treatment, and was unable to appear in court or notify the court. Respondent further stated to Brady that she would provide any assistance necessary to obtain an order vacating the prior orders entered in Rackauskas' case, and would assist Rackauskas in paying any attorneys' fees that would be incurred. (Tr. 14-15).
On or prior to February 26, 2005, Rackauskas retained attorney Ann C. Brady to represent her, and paid Brady's firm an initial retainer of $1,500. Respondent did not pay any portion of those fees. (Tr. 15; Adm. Ex. 8).
On March 15, 2005 Brady caused to be filed a motion to vacate both the default order of January 6, 2005 and the order entered on February 16, 2005. Attached to the motion, which was scheduled for hearing on March 17, 2005, was Respondent's affidavit with her explanation of the events that caused her to miss the court dates. On March 17, 2005 the Court set the matter for hearing on April 19, 2005. (Tr. 16-17; Adm. Ex. 9, 10).
On April 19, 2005 a hearing was conducted and both Rackauskas and Respondent, who appeared pursuant to subpoena, testified. Regarding her first failure to appear in court, Respondent represented that she left a message on the court's message machine. The judge stated, however, that he had no record of a message having been left. Regarding the second missed court appearance, Respondent presented documentation that she had sought treatment at a hospital on that date. Following the witnesses' testimony, and after Respondent had left the courtroom, the Court entered an order continuing the matter to May 12, 2005 and directing Respondent to appear at that time. (Tr. 17-19; Adm. Ex.. 11).
Brady sent a letter to Respondent, along with a copy of the court's order, explaining the court's decision and the need for Respondent to appear on May 12. In addition, Brady's office
sent a copy of the order to Clampitt and Respondent. On May 12, 2005, Respondent did not appear in court or advise anyone that she would not be appearing for the continued hearing. The Court heard testimony and evidence presented by Clampitt, and entered an order denying Rackauskas' motion to vacate the prior orders. (Tr. 19-21; Adm. Ex. 12- 14).
Following the hearing of May 12, Brady informed Rackauskas of her right to appeal the order, but Rackauskas declined any further court action due to a lack of funds for attorneys' fees. Brady then sent a letter to Respondent on behalf of Rackauskas demanding $18,000 as reimbursement for the following items: attorneys' fees and costs totaling $2,899.48, the $1,000 fine imposed upon Rackauskas, and Rackauskas' loss of child support. When Respondent did not respond to the letter, Brady suggested to Rackauskas that she contact an attorney with expertise in legal malpractice actions. Thereafter, Respondent contacted Brady and paid the balance of Rackauskas' legal fees. (Tr. 21-24; Adm. Ex. 15-17).
On August 21, 2006, the Administrator received a request for investigation of a lawyer from Zivile P. Rackauskas. On October 27, 2006 and November 22, 2006, Althea Welsh, counsel for the Administrator, sent letters to Respondent at her last registered home address requesting that she submit information in relation to her representation of Rackauskas. No replies were received. (Tr. 27-28; Adm. Ex. 18, 19).
On February 28, 2007, the Administrator issued a subpoena duces tecum requiring Respondent to appear at the offices of the ARDC on March 19, 2007 to give sworn testimony and produce her client files in connection with the Rackauskas matter. Respondent was personally served with the subpoena at her workplace, a Wal-Mart store in Glen Ellyn, on February 28, 2007. That same day Respondent contacted Welsh by telephone, acknowledged
receipt of the subpoena, and advised Welsh that she had not received the prior letters. Respondent further stated that she was not practicing law, the legal profession in Illinois was corrupt, and she was not interested in the disciplinary proceedings. After further discussion, Welsh advised Respondent that the information from Rackauskas would be sent to her again and Respondent agreed that, after receipt, she would provide a written response. (Tr. 29-32; Admin. Ex. 20).
On March 1, 2007 Welsh sent a letter to Respondent enclosing Rackauskas' request for investigation, as well as the prior correspondence of October 27 and November 22, 2006. The letter informed Respondent that if she submitted her written response before March 19, 2007, her appearance pursuant to the subpoena would be waived. The letter further noted that Respondent had not been registered with the Commission since 2004 and therefore had not been authorized to practice law since February 2, 2005. No reply was received and Respondent did not appear on March 19, 2007. (Adm. Ex. 21).
As of May 22, 2007, the date on which a panel of the Inquiry Board voted that a complaint be filed against Respondent, Respondent had not provided the documents required by the subpoena, had not provided a written response to the Administrator, and had not communicated with the Administrator to explain her absence on March 19, 2007 or to reschedule her appearance before the Commission. (Tr. 32).
The Administrator reported that Respondent has not been previously disciplined by the Illinois Supreme Court or any ARDC board.
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 July 31, 2007 by which the allegations of the Complaint were deemed admitted, and the evidence presented by the Administrator and admitted 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 (Count I);
failing to keep a client reasonably informed about the status of a matter in violation of Rule 1.4(a) (Count I);
failing to make reasonable efforts to expedite litigation consistent with the interest of the client in violation of Rule 3.2 (Count I);
failure to respond to a lawful demand for information from a disciplinary authority in violation of Rule 8.1(a)(2) (Count II);
conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(4) (Counts I and II); and
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 and II).
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 her opportunity to present any evidence of mitigating circumstances. The Administrator did report, however, that Respondent has not been previously disciplined.
In aggravation, we consider the harm or risk of harm caused by Respondent's misconduct. 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). In this case Respondent agreed to represent Zivile Rackauskas, and then failed to communicate with her, failed to respond to court filings on her behalf, and failed to appear in court on two occasions. As a consequence, orders were entered that were adverse to Rackauskas' financial and personal interests. Further, Rackauskas had to retain another attorney to represent her in the domestic proceeding and to communicate with Respondent. See In re Demuth, 126 Ill.2d 1, 533 N.E.2d 867 (1988) (a client is harmed when he has to go to the "expense and inconvenience" of hiring another attorney). While we recognize that Respondent ultimately paid a portion of Rackauskas' attorneys' fees, that act does not fully neutralize the harm caused to Rackauskas by having to switch attorneys in the middle of her case.
Respondent's failure to attend and participate in these proceedings further aggravates her misconduct. By her absence she has demonstrated her complete indifference to her own professional fate, a lack of concern for her client's complaints, and a profound 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). In addition, Respondent's inattention to her own proceedings is an indication that she is not capable of representing clients in a responsible and conscientious manner.
The evidence indicated that Respondent has not registered with the Commission since 2004. 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, (2006).
The Administrator suggested that the misconduct in this case warrants a suspension of six months and until further order of the Court. We believe that suggestion is appropriate and adequately supported by precedent.
Single instances of neglect typically warrant a moderate suspension. In In re Levinson, 71 Ill.2d 486, 376 N.E.2d 990 (1978) the attorney was suspended for six months until further order of court for neglecting one client matter, misrepresenting the status of the matter, and failing to communicate with the client. In In re Ring, 141 Ill.2d 128, 565 N.E.2d 983 (1990) the
attorney was suspended for six months for failure to prosecute a criminal appeal and failure to inform his client that the appeal had been dismissed. See also In re Frederick, 00 CH 79, M.R. 17735 (November 28, 2001) (suspension of six months until further order of court for one instance of neglect and failing to keep client informed); In re Moriarty, 02 CH 114, M.R. 18947 (November 14, 2003) (six month suspension until further order of court for neglecting one client matter and failing to respond to requests for information from the ARDC); In re Lasenby, 05 CH 53, M.R. 20924 (September 29, 2006) (attorney suspended six months until further order of court for neglecting one client matter, failing to respond to the client's inquiries, and failing to return his unearned fee). The attorneys in Moriarty, Frederick, and Lasenby, like Respondent in the present case, failed to participate in their disciplinary proceedings.
Because we did not have an opportunity to observe Respondent or hear an explanation for her conduct, we do not know why she failed to pursue Rackauskas' case, or why she has not cooperated in these proceedings. Under these circumstances, a suspension until further order of Court is appropriate. See In re Houdek, 113 Ill.2d 323, 497 N.E.2d 1169 (1986) (lack of evidence that attorney was willing or able to meet professional standards of conduct in the future warrants a suspension until further order of the court). Given the evidence presented to us, and the fact that Respondent has not registered with the Commission since 2004, we conclude that she has little or no interest in continuing her legal career. If that position should change, she will have to demonstrate her reformation and commitment to the legal profession in a reinstatement proceeding.
Having considered the misconduct which occurred, the aggravating factors, and the relevant case law, we recommend that Respondent Sandra Kay Coplien be suspended for six months and until further order of court.
Date Entered: February 1, 2008
|Mark L. Karasik, Chair, with Brian W. Bell and Fran McConnell Williams concurring.|