Filed April 18, 2008

In re Rafael Rios
Commission No. 07 CH 83

Synopsis of Hearing Board Report and Recommendation

Default Proceeding

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 promptly refund the unused portion of a fee paid in advance that has not been earned; 4) engaging in conduct prejudicial to the administration of justice; and 5) engaging in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: Rules 1.3, 1.4(a), 1.16(e), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Disbarment.

DATE OF OPINION: April 18, 2008.

HEARING PANEL: Arthur B. Smith, Jr., Chair, George P. Berbas and Joel A. Kagann.

ADMINISTRATOR'S COUNSEL: Dorothy B. Zimbrakos.

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

In the Matter of:

RAFAEL RIOS,

Attorney-Respondent,

No. 6192713.

Commission No. 07 CH 83

REPORT AND RECOMMENDATION OF THE HEARING BOARD

DEFAULT PROCEEDING

INTRODUCTION

The hearing in this matter was held on February 29, 2008, at the Chicago, Illinois offices of the Attorney Registration and Disciplinary Commission ("ARDC") before the Panel of Arthur B. Smith, Jr., Chair, George P. Berbas and Joel A. Kagann. Dorothy B. Zimbrakos represented the Administrator of the ARDC. Respondent failed to appear at the hearing and was not represented by counsel.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On August 22, 2007, the Administrator filed a one-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Administrator alleged that Respondent neglected one client matter and failed to refund unearned fees to the client. On October 19, 2007, Respondent was served with notice of the complaint by substitute service pursuant to Supreme Court Rule 765. Respondent failed to answer the Complaint. On January 25, 2008, the Administrator filed a motion to deem the allegations of the Complaint admitted. On February 14, 2008, that motion was granted and the allegations of the Complaint were deemed admitted, and Respondent was barred from testifying, presenting witnesses or introducing any documents

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into evidence at the hearing.

THE EVIDENCE

The Administrator presented the testimony of two witnesses. The Administrator also presented Exhibits 1-6, which were admitted into evidence.

Admitted Facts

On March 14, 2003, police officers from the Elmhurst Police Department arrived at the home of Juan and Guadalupe Castellanos, which is located in unincorporated Cook County. Also living in the home were the Castellanos's sons, Saul and David. After obtaining Juan's consent, the police officers searched the house, causing damage to the home and some of its furnishings. In the course of the search, police officers seized several grams of marijuana and two leafy plants from the basement.

At the request of the police officers, Saul presented himself to the Elmhurst Police Department. Saul was interrogated about the items found in the home, and processed for arrest. During the processing, the police officers discovered that the Castellanos's home was outside the Elmhurst Police Department's jurisdictional boundaries. Consequently, Saul and the seized property were transported to the Cook County Sheriff's Department in Maywood, Illinois. After interviewing Saul, the Sheriff's Department told him that the arrest was a "procedural mess" and released him.

In March 2004, Saul and Juan contacted Respondent to determine whether any criminal or civil proceedings had been initiated against any of the Castellanos, and whether they could file a civil lawsuit against any of the police officers involved in the incident. In September 2004, Respondent went to the Castellanos's home to discuss their legal options. Respondent agreed to represent Saul and Juan, and to determine whether a civil action could be filed on their behalf,

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and if so, to file a lawsuit. Respondent requested a $5,000 retainer for his legal services. Later in September 2004, Respondent went to the Castellanos's home and Juan gave him $5,000 for his retainer.

From September 2004, to August 20, 2007, Saul and Juan attempted on numerous occasions to contact Respondent by telephone and by going to his office, but were unable to speak with him. At no time did Respondent return Saul and Juan's telephone calls, or in any way communicate with them regarding the status of their matter. Also during this period of time, Respondent performed no legal services on behalf of the Castellanos, or returned any portion of the $5,000 retainer.

Testimony of Juan Castellanos

Juan Castellanos is married and has two sons, Saul who is 23 years old and David who is 21 years old. (Tr. 10-11). Juan retired from a job he had for 38 years and started a business with his sons. (Tr. 12). On March 13, 2003, in the late evening hours, and March 14, 2003, in the early morning hours, Elmhurst police officers searched his house. (Tr. 12-14). There were approximately eight police officers and some of the police officers had dogs. (Tr. 14-15). The officers thoroughly searched the entire house, and in the process damaged some of the Castellanos's property. (Tr. 14-15). One of the officers entered David's bedroom and questioned him. (Tr. 15-16). The officers found a small amount of marijuana and two marijuana plants in the basement. The Castellanos would put marijuana in a bottle with alcohol and use it as a topical medicine. Both Juan and his wife had arthritis and used the remedy. (Tr. 16).

At a police officer's request, Juan called Saul and told him to go to the Elmhurst Police Department. Saul went, and was questioned by the officers. Juan and his wife went to the police station to find out what was happening with Saul. After waiting for hours, an officer told Juan

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that Saul was transferred to the Sheriff's office in Maywood. (Tr. 17).

Juan wanted to know if there would be any charges filed against anyone in his family and if he had any recourse against the police officers, so in September 2004, he hired Respondent, and paid him a $5,000 retainer. (Tr. 18-20; Adm. Ex. 2). After giving Respondent the retainer, Juan never heard from Respondent. (Tr. 20-21). Juan made numerous attempts to contact Respondent including placing telephone calls and going to Respondent's office. (Tr. 21). Eventually, Juan filed a pro se lawsuit against the Elmhurst Police Department and the Cook County Sheriff's Office. (Tr. 21). Five or six months later, Juan hired a different attorney, Andrew Spiegel, to represent them. Juan paid Spiegel a $2,500 retainer. Ultimately, the case was dismissed. (Tr. 21-22).

Juan paid Respondent with the majority of the profits from the business he had started. Subsequently, the business had financial difficulties, and Juan has used his retirement money to keep the business going. (Tr. 22-23). Juan and his wife receive approximately $2,900 in monthly Social Security benefits. (Tr. 24). As a result of this experience, Juan has difficulty trusting anyone who is associated with the legal profession. (Tr. 25-26).

Testimony of Saul Castellanos

On March 13, 2003, at approximately 9:30 p.m., Saul received a telephone call from Juan, and agreed to go to the Elmhurst Police Department to discuss what was found in their house. (Tr. 28). At the police station, Saul was questioned and asked to admit that he owned the marijuana found in his house. Saul stated that the marijuana was used as a pain remedy by his parents. He also stated that he was holding a small bag of marijuana for a friend. (Tr. 29-30). The questioning stopped after an officer realized that the Elmhurst police did not have jurisdiction. (Tr. 31). Saul was transported to the Sheriff's Department in Maywood, where he

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was strip searched and put in a cell. (Tr. 31-33). After the Sheriff's office reviewed the paperwork, Saul was released at approximately 1:30 a.m. (Tr. 33-35).

After thinking about what had transpired, and believing his rights were violated, Saul decided to hire an attorney. A family friend recommended that Saul contact Respondent. Saul and his family met with Respondent, and during the meeting, Respondent told them that he had graduated first in his class from Harvard. Saul and his family decided to hire Respondent and gave him a $5,000 retainer. (Tr. 36-38, 50; Adm. Ex. 2). Saul made numerous attempts to contact Respondent by telephone and going to his office, but never spoke to Respondent after giving him the retainer. Respondent performed no legal services in the matter. (Tr. 38-39, 46-47). Subsequently, Saul filed a complaint with the ARDC. (Tr. 39-40; Adm. Ex. 1).

Saul and his family had paid Respondent with profits from a business Saul and Juan had started, and the business began to struggle after that. (Tr. 40-42). The incident has had a dramatic affect on everyone in the family. (Tr. 42-43). Saul now has difficulty trusting anyone, and feels guilty and insecure. It has also had a negative impact on his opinion of attorneys. (Tr. 47-48).

On March 14, 2005, Saul filed a pro se lawsuit against the Elmhurst Police Department and the Sheriff's Office. (Tr. 43-44; Adm. Ex. 6). After realizing that he needed help pursuing his lawsuit, he hired Spiegel and paid him $2,500. (Tr. 44-45). Ultimately, the lawsuit was dismissed for being filed outside the applicable statute of limitations and failing to state a claim for which relief could be granted. (Tr. 45-46; Adm. Ex. 4).

Prior Discipline

Respondent has not engaged in prior misconduct.

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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). "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, sec. 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 admitted facts, the evidence and testimony presented at the hearing, we conclude that the Administrator proved, by clear and convincing evidence, that Respondent engaged in all of the alleged misconduct. Specifically, we find that RESPONDENT:

  1. 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;

  2. failed to keep a client reasonably informed about the status of the matter in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

  3. failed to promptly refund the unused portion of a fee paid in advance that has not been earned in violation of Rule 1.16(e) of the Illinois Rules of Professional Conduct;

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

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  1. 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.

RECOMMENDATION

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. In this case, there are several aggravating factors and one mitigating factor.

Respondent's misconduct is aggravated by the fact that he caused harm to his clients. Because of Respondent's neglect of the Castellanos's matter, they lost their right to pursue their claims against the police officers. Additionally, Juan paid Respondent $5,000 and Respondent provided absolutely no legal services. This money was a considerable sum and Respondent has made no restitution to Juan. Moreover, because of Respondent's neglect, the Castellanos had to hire a new attorney and pay him $2,500. This is money they would not have otherwise had to

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pay had Respondent properly handled their case. See In re Lewis, 118 Ill. 2d 357, 364, 515 N.E.2d 96 (1987) (harm caused by an attorney's misconduct is an aggravating factor). Further, both Juan and Saul testified that they lost faith in attorneys based on Respondent's misconduct.

Respondent's misconduct is further aggravated by the fact that he failed to participate in these disciplinary proceedings. Respondent was properly served with a copy of the complaint. Yet he failed to participate in the pre-hearing conferences and the hearing. An attorney's lack of cooperation in his own disciplinary proceedings demonstrates a "complete want of professional responsibility," and "indifference toward or even contempt for disciplinary procedures," and a "disregard for the authority and process of the Attorney Registration and Disciplinary Commission." In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976); In re Pass, 105 Ill. 2d 366, 371, 475 N.E.2d 525 (1985).

Respondent's misconduct is also aggravated because it was willful. It is apparent to us that Respondent never intended to represent the Castellanoses. He only had one meeting with them, collected the $5,000 retainer fee, and disappeared. He had no other contact with them, despite their numerous attempts to contact him. These facts demonstrate a willful and conscious plan to engage in misconduct. See In re Mason, 122 Ill. 2d 163, 175, 522 N.E.2d 1233 (1988) (willfulness can be an aggravating factor).

The only mitigating factor presented is that Respondent has had no prior discipline. Generally, the lack of a prior discipline is a significant mitigating factor, however, based on the egregious facts of this case, we give this fact little weight. See In re Demuth, 126 Ill. 2d 1, 14, 533 N.E.2d 867 (1988).

Having considered the aggravating facts and lack of mitigating facts, we must now recommend the appropriate sanction. The Administrator recommends Respondent be suspended

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from the practice of law for six months and until further order of the court, and cites several cases supporting this recommendation. See In re Tuckey, 96 CH 521, M.R. 13408 (March 21, 1997) (disbarment for neglecting two client matters and making false statements to the ARDC); In re Pirtle, 95 SH 352, M.R. 11897 (January 23, 1996) (three year suspension and until further order of the court for neglecting three client matters and failing to refund unearned fees); In re Litsos, 94 CH 742, M.R. 11761 (December 1, 1995) (disbarment for neglecting more than 300 cases); In re Marshall, 93 CH 545, M.R. 10861 (March 27, 1995) (disbarment for abandoning his practice with approximately 1500 cases and forging his wife's signature on loan documents).

After reviewing the cases cited by the Administrator, and other cases, and considering all of the evidence, we believe the Administrator's suggested sanction is too lenient and recommend that Respondent be disbarred. Although the present case is distinguishable from the cases cited by the Administrator based on the number of client matters those attorneys neglected, we would characterize this case differently. While we have found that Respondent neglected one client matter, we also find that this case has elements of an attorney who abandoned his practice and stole money from his clients. This is not a simple case of neglecting a client matter. Based on the facts, we can reasonably infer that Respondent had no intention of representing the Castellanoses. Instead, he lied to them and essentially stole $5,000. Respondent simply took the money that was supposed to be used for his legal fees, and disappeared, never to be heard from again.

This case is analogous to In re Burnham, 97 CH 22, M.R. 14176 (January 29, 1998). In that case Burnham was the secretary of the Black Women Lawyer Association, and took $17,589 from the association's scholarship fund. The Hearing Board found that she committed theft of the funds and stated that theft is no less serious than conversion. Relying on conversion cases,

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which have imposed disbarment, the Hearing Board recommended that Burnham be disbarred. Burnham, 07 CH 22 (Hearing Bd. Rpt. at 8-9) citing In re Stillo, 68 Ill. 2d 49, 368 N.E.2d 897 (1977). The Illinois Supreme Court affirmed that recommendation. Burnham did not participate in the disciplinary hearing.

In the present case, as in Burnham, we find little difference between Respondent's conduct and theft or conversion. In all these instances of misconduct, the attorney takes money that does not belong to him with the intent to deprive the rightful owner of the money. What Respondent did in the present case is analogous to conversion and theft and the appropriate sanction should be the same as in those cases.

Therefore, in light of Respondent's misconduct, and considering the aggravating factors and relevant case law, we recommend that Respondent be disbarred.

Date Entered: April 18, 2008

Arthur B. Smith, Jr., Chair, George P. Berbas and Joel A. Kagann, Hearing Panel Members.