Filed January 25, 2008

In re Roger H. Williams
Commission No. 07 CH 102

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 and to promptly comply with reasonable requests for information; 3) failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; 4) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 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), 1.4(b), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Suspension of one year and until further order of the Court.

DATE OF OPINION: January 25, 2008.

HEARING PANEL: John M. Steed, III, Donna L. Moore and William E. Gabbard.

ADMINISTRATOR'S COUNSEL: Scott Kozlov.

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

In the Matter of:

ROGER E. WILLIAMS,

Attorney-Respondent,

No. 3027325.

Commission No. 07 CH 102

REPORT AND RECOMMENDATION OF THE HEARING BOARD

DEFAULT PROCEEDING

INTRODUCTION

The hearing in this matter was held on December 20, 2007 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") in Chicago, Illinois before a hearing panel consisting of John M. Steed, Donna L. Moore and William E. Gabbard. Scott Kozlov represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Roger H. Williams did not appear at hearing and was not represented by counsel.

THE COMPLAINT AND PRE-HEARING RECORD

On September 11, 2007, the Administrator filed a single-count Complaint against Respondent charging him with neglect of a client matter and making misrepresentations to the client regarding the status of the matter.

On October 10, 2007 Respondent was personally served with a copy of the Administrator's Complaint, Notice of Complaint, Order assigning Chairperson, and Rules of the Supreme Court of Illinois. Thereafter, Respondent failed to file an answer to the Complaint, failed to respond to the Administrator's Request to Produce Documents, and failed to file a report pursuant to Commission Rule 253.

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On November 29, 2007, the hearing panel Chair entered an order deeming the factual allegations and disciplinary charges admitted and barring Respondent from presenting any witnesses or documents at hearing.

THE EVIDENCE

At the hearing in this matter, the Administrator called one witness, Keith Sichelski, and tendered three exhibits which were admitted into evidence. The testimony and exhibits, along with the admitted allegations of the Complaint, established the following facts.

In April 2000, Keith Sichelski was riding a bicycle when he was struck by a taxicab driven by Adebanso Ogunsanya. Sichelski was injured and incurred approximately $20,000 in medical expenses as a result of the collision. In April 2002, Sichelski retained Respondent to represent him in connection with a claim against Ogunsanya and agreed to pay Respondent a fee contingent on any recovery. (Tr. 9-10; Adm. Ex. 1, 3).

On April 17, 2002, Respondent filed a complaint against Ogunsanya on behalf of Sichelski in the Circuit Court of Cook County. At no time did Respondent obtain service of the complaint and summons on Ogunsanya. On December 7, 2002, a status hearing was scheduled for January 23, 2003. Respondent knew or should have known of the status hearing but did not appear in court on January 23, 2003. At that time Judge Michael Hogan dismissed the case for want of prosecution. Respondent did not file a motion to vacate the January 23, 2003 order, nor did he refile Sichelski's claim. Sichelski's claim is now time-barred. (Adm. Ex. 2).

Between January 2003 and April 2007 Sichelski telephoned Respondent between eight and twelve times to discuss the status of his claim. On each occasion, Respondent led Sichelski to believe that the case was still pending. Respondent's statements to Sichelski were false, and he knew or should have known they were false because the case had been dismissed in January

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2003 and he had not filed any motions to have the dismissal vacated. Respondent did not inform Sichelski of the dismissal until after Sichelski reported him to the ARDC. (Tr. 11).

Evidence Submitted in Aggravation

Sichelski stated that, because of his injuries from the accident, he could not perform his duties at work and ultimately he lost his job and had to move in with family members. Although his medical bills were covered by insurance, his continuing physical problems required treatment with a massage therapist, which was not covered by his medical insurance. Sichelski believed he could have recovered his out-of-pocket expenses if Respondent had pursued his claim. (Tr. 13-17).

Sichelski testified he contacted an attorney, Joel Greenberg, regarding a malpractice action against Respondent, and received advice on how to approach Respondent about a recovery without having to go through a malpractice action. When Sichelski initially contacted Respondent, Respondent indicated that he wanted to seek counsel. Sichelski called Respondent a second time to inform him that Respondent's associate, who had worked on Sichelski's case, could also be involved in a malpractice action. Thereafter, Respondent offered to pay Sichelski $10,000 to resolve the matter, and Sichelski received a check for that amount from Respondent in September 2007. Sichelski paid Greenberg $250 for the counseling session. (Tr. 12-13).

Sichelski testified that his experience with Respondent led him to distrust lawyers. He further stated, however, that his dealings with attorney Greenberg slightly restored his trust in the profession. (Tr. 15).

Prior Discipline

On September 21, 2006, the Illinois Supreme Court ordered that Respondent be suspended for one year, with the suspension stayed after 60 days pending completion of a one year period of probation with conditions. The discipline was imposed, on consent, for

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Respondent's settlement of a personal injury claim without his client's authorization, his conversion of at least $1,641.47 from the client's settlement proceeds, and his practice of law after his name was removed from the master roll of attorneys in 2005. The misconduct occurred in 2004 and 2005. The probationary conditions imposed by the Supreme Court included completion of the course conducted by the Illinois Professional Responsibility Institute, establishment of a system for handling funds, and quarterly reporting to the Administrator. See In Re Williams, 05 CH 118, M.R. 21037 (September 21, 2006).

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 November 29, 2007 by which the allegations and charges 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.

  1. 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;

  2. 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(a);

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  1. failure to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation in violation of Rule 1.4(b);

  2. conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4);

  3. conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and

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

RECOMMENDATION

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 participate in the proceedings is a factor weighing heavily against him. He did not answer the Complaint, comply with pre-hearing procedures, or attend his own hearing. His failure to cooperate 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

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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 failure to represent his own interests is an indication that he would not be willing or capable of representing the interests of 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"). As a result of Respondent's misconduct, Sichelski lost his right to pursue his action and suffered financial difficulties. In 2007 Sichelski received $10,000 from Respondent, but that payment occurred only after he consulted another attorney. See In re Demuth, 126 Ill.2d 1, 533 N.E.2d 867 (1988) (client is harmed when he has to go to the "expense and inconvenience" of hiring another attorney).

Respondent's prior suspension is also a factor to be considered in our determination of discipline. Prior discipline is typically considered to be an aggravating factor because it demonstrates an attorney's inability to reform his conduct after past mistakes. See In re Levin, 118 Ill.2d 77, 514 N.E.2d 174, 179 (1987). While the prior suspension in this case was imposed in 2006, several years after Respondent neglected Sichelski's court action, his misrepresentations to Sichelski continued to 2007. Therefore, at least as to the misrepresentations, we have to conclude that the investigation into Respondent's earlier actions and the resulting pendency of those proceedings had no deterrent effect on his behavior. That lack of reformation does not bode well for his future compliance with professional obligations. In any event, even where an attorney is not a recidivist in the ordinary sense, we may consider the totality of the lawyer's misconduct in determining an appropriate sanction in a second disciplinary matter. In re Cohen,

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06 CH 10, M.R. 21332 (January 12, 2007), citing In re Teichner, 104 Ill.2d 150, 470 N.E.2d 972 (1984).

The Administrator has suggested that Respondent's neglect and misrepresentation, coupled with the aggravating factors, warrants a suspension of one year until further order of the Court. We agree with that assessment.

In In re Gershon, 06 CH 14, M.R. 21295 (January 12, 2007) the attorney was suspended for one year until further order of the Court for neglecting a client matter, failing to return an unearned fee, and failing to cooperate with the Commission. He did not participate in his disciplinary proceedings and had been previously disciplined. In In re Horn, 03 CH 80, M.R. 19300 (March 15, 2004), the attorney, who had been previously disciplined, was suspended for two years until further order for neglecting two client matters, and failing to communicate with the clients. In In re Houdek, 113 Ill.2d 323, 487 N.E.2d 1169 (1986) the Court suspended an attorney for two years until further order for neglecting one matter, making misrepresentations to the client and to the Commission, and converting a small amount of money.

Respondent, by his actions and his absence from these proceedings, has demonstrated a complete disregard for the legal profession and his responsibilities to the profession. Keeping in mind the purposes of the disciplinary process, which are to safeguard the public from any future abuse by Respondent, to preserve the integrity of the legal profession, and to protect the administration of justice from reproach, we conclude that Respondent should be suspended for one year, and that he should have to prove his fitness to practice law prior to being reinstated.

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Accordingly, we recommend that Respondent Roger E. Williams be suspended for a period of one year and until further order of the Court.

Date Entered: January 25, 2008

John M. Steed, III, with Donna L. Moore and William E. Gabbard, concurring.