Filed July 17, 2008

In re Roger H. Williams and Tracy Hensler Krizman
Commission Nos. 08 CH 1 and 08 CH 2

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 make reasonable efforts to expedite litigation consistent with the interests of the client; 4) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 5) failing to respond to a lawful demand for information from a disciplinary authority; and 6) engaging in conduct that is prejudicial to the administration of justice; 7) 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, 3.2, 8.1 (a)(2), 8.4(a)(4), 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Disbarment for Respondent Williams and disbarment for Respondent Krizman.

DATE OF OPINION: July 17, 2008.

HEARING PANEL: Champ W. Davis, Jr., Chair, Edward S. Harmening, and Bernard Judge.

ADMINISTRATOR'S COUNSEL: Scott A. Kozlov.

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

In the Matter of:

ROGER H. WILLIAMS,

No. 3027325,

TRACY HENSLER KRIZMAN,

No. 6225381,

Attorney-Respondents.

Commission No. 08 CH 1

Commission No. 08 CH 2

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on May 20, 2008, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Panel consisting of Champ W. Davis, Jr., Chair, Edward S. Harmening, and Bernard Judge. Scott A. Kozlov represented the Administrator. Respondents, Roger H. Williams and Tracy Hensler Krizman, did not appear at the hearing and were not represented by counsel.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On January 3, 2008, the Administrator filed a six-count Complaint against Respondents alleging they neglected five matters, made misrepresentations to the client in four of those matters and failed to respond to demands for information from the ARDC. After repeated efforts to personally serve Respondents failed, Respondents were served on March 13, 2008, by mail and by substitute service pursuant to Illinois Supreme Court Rule 765(b).

On April 10, 2008, the Administrator filed a Motion to Deem the Allegations of the Rule 753(b) Complaint Admitted Pursuant to Commission Rule 236 ("Motion"). After Respondents

PAGE 2:

failed to file an answer to the Administrator's Complaint or response to the Motion, the Chair of the Hearing Panel granted the Motion thereby limiting the evidence to be presented at hearing to matters in aggravation and mitigation.

THE EVIDENCE

Administrator's Exhibits 1 through 9 were admitted into evidence. (Tr. 20).

Admitted Allegations Common to all Counts

Between 1998 and 2007, Respondent Roger H. Williams and Respondent Tracy Hensler Krizman were partners in the two-attorney law firm of Williams and Krizman. Respondents jointly handled all of the firm's cases, sharing responsibility for communicating with clients and opposing counsel, filing and responding to motions on pending cases, and attending court dates. During that same time, attorney David Harrison, who concentrated his practice in the area of workers' compensation claims, referred numerous clients to Respondents for the handling of their personal injury claims.

Count I

On April 20, 2002, Charles Miller was injured in a job related incident. Shortly after Mr. Miller was injured, he hired Mr. Harrison to handle his worker's compensation claim. Mr. Harrison then referred Mr. Miller to Respondents to handle his personal injury claims. In September 2002, Respondents jointly agreed to represent Mr. Miller and to accept as their fee one-third of any amount recovered before the filing of a complaint or 40 percent of any amount recovered after the filing of a complaint.

During this time 735 ILCS 5/13-202 provided that a cause of action for personal injuries must be filed within two years from the date of the incident giving rise to the claim. Under 735 ILCS 5/13-202, the limitation period for Mr. Miller's claim expired on or about April 20, 2004.

PAGE 3:

On April 21, 2004, one day after the expiration of the statute of limitations, Respondent Krizman filed a complaint on Mr. Miller's behalf. (Adm. Ex. 5). At that time, Respondent Krizman informed Mr. Miller that jurisdiction was proper in Illinois because defendants were both doing business in the state. Respondents did not cause a copy of the complaint and summons to be served on defendants.

On September 16, 2004, either Respondent Williams or Respondent Krizman appeared in court for a case management conference in Mr. Miller's case, at which time the court scheduled another case management conference for October 5, 2004. (Adm. Ex. 5). However, on October 5, 2004, neither Respondent Williams nor Respondent Krizman appeared on Mr. Miller's behalf. As a result, the court dismissed the case for want of prosecution. (Adm. Ex. 5).

On numerous occasions between 2002 and 2004, Mr. Miller phoned Respondents and left messages inquiring about the status of his case. On most of those occasions, Respondents did not return Mr. Miller's calls. On several occasions when Mr. Miller was unable to contact Respondents, he phoned Mr. Harrison, who then called Respondents.

Between October 5, 2004, and July 24, 2007, Mr. Harrison spoke to Respondents on numerous occasions about Mr. Miller's case. On each occasion, both Respondent Krizman and Respondent Williams told Mr. Harrison that the case was still pending. These statements were false as Respondents knew or should have known that Mr. Miller's case had been dismissed for want of prosecution.

Count II

On October 17, 2001, Milton Ford was injured in an automobile accident. In November 2001, Mr. Ford contacted Mr. Harrison, who then referred him to Respondents to handle his personal injury claim. In November 2001, Respondents jointly agreed to represent Mr. Ford and

PAGE 4:

to accept as their fee one-third of any amount recovered before the filing of a complaint or 40 percent of any amount recovered after the filing of a complaint.

During this time, 735 ILCS 5/13-202 provided that a cause of action for personal injuries must be filed within two years from the date of the incident giving rise to the claim. Under 735 ILCS 5/13-202, the limitation period for Mr. Ford's claim expired on or about October 17, 2003. At no time did Respondents file a claim on Mr. Ford's behalf and the claim is now time-barred.

On numerous occasions between 2001 and 2003, Mr. Ford phoned Respondents and left messages inquiring about the status of his claim. On most occasions, Respondents did not return Mr. Ford's calls. Since 2003, they have not returned any of his calls.

Count III

On July 19, 1996, Virginia Eaton was injured in a Wal-Mart store. In early 1998, Ms. Eaton contacted Mr. Harrison, who then referred her to Respondents to handle her personal injury claim. In July 1998, Respondents jointly agreed to represent Ms. Eaton and to accept as their fee one-third of any amount recovered.

On July 16, 1998, Respondent Williams filed a complaint on Ms. Eaton's behalf. Between July 1998 and May 2003, Wal-Mart was served with the complaint and filed its answer. The parties engaged in discovery and numerous motions were filed and heard. (Adm. Ex. 6).

On May 13, 2003, the court entered an order scheduling the matter for a jury trial on October 27, 2003. On October 15, 2003, Respondent Krizman filed a motion to voluntarily dismiss Ms. Eaton's case, which was granted on October 21, 2003. (Adm. Ex. 6). Respondents did not consult with Ms. Eaton about the motion to voluntarily dismiss the case and Ms. Eaton never consented to the dismissal of her claim.

Between October 2003 and October 2004, Ms. Eaton spoke to Respondent Krizman many times. On each occasion, Respondent Krizman led Ms. Eaton to believe that her

PAGE 5:

case was still pending. These statements were false and were intended to mislead Ms. Eaton as Respondent Krizman knew that Ms. Eaton's case had been dismissed.

During this time, 735 ILCS 5/13-217 provided that if an action was voluntarily dismissed by the plaintiff, then, whether or not the limitations period for bringing such an action expires during the pendency of such action, the plaintiff may commence a new action within one year or within the remaining period of limitation, whichever is greater, after the case is dismissed. On October 21, 2004, Respondent Krizman re-filed Ms. Eaton's claim against Wal-Mart. (Adm. Ex. 7).

However, at no time did Respondents cause the complaint and summons to be served on Wal-Mart. On May 25, 2007, the clerk of the court sent a notice to Respondents informing them that Ms. Eaton's case would be dismissed if they did not schedule a status hearing before the court within 30 days. (Adm. Ex. 7). Respondents received the clerk's notice. On June 27, 2007, as Respondents had not scheduled a status hearing in Ms. Eaton's case, the court dismissed the case for want of prosecution. (Adm. Ex. 7). Respondents did not inform Ms. Eaton that her case had been dismissed for want of prosecution. Ms. Eaton's claim is now time-barred.

On numerous occasions between June 2007 and November 2007, Ms. Eaton phoned Respondents and left messages inquiring about the status of her claim. Respondents did not return Ms. Eaton's calls.

Count IV

On August 3, 2000, Connie Wilson was injured in a motor vehicle accident. Shortly after the accident, Ms. Wilson contacted Mr. Harrison, who then referred her to Respondents to handle her personal injury claim. In August 2002, Respondents jointly agreed to represent Ms. Wilson and to accept as their fee one-third of any amount recovered.

PAGE 6:

On August 2, 2002, Respondent Williams filed a complaint on Ms. Wilson's behalf. (Adm. Ex. 8). At that time, Respondent Williams informed Ms. Wilson that jurisdiction was proper in Illinois. One defendant, Ms. Watson, was served with a copy of the complaint and summons, but Respondents failed to serve the other defendant. Between August 2002 and March 2006, Ms. Watson filed her answer, the parties engaged in discovery, and numerous motions were filed and heard. (Adm. Ex. 8).

On March 10, 2006, Ms. Watson filed a motion for summary judgment and scheduled the motion for hearing on June 29, 2006. (Adm. Ex. 8). Although Respondents received the motion, they did not inform Ms. Wilson that the motion had been filed, did not file a response to the motion, and did not appear on June 29, 2006, for the hearing on the motion. The court granted Ms. Watson's motion and entered summary judgment against Ms. Wilson. (Adm. Ex. 8).

On several occasions between June 2006 and November 2007, Ms. Wilson spoke to Respondents about her claim. On each occasion they informed her that case was still pending. Respondents' statements to Wilson were false as Respondents knew or should have known that summary judgment had been entered against Ms. Wilson.

Count V

On January 6, 2001, Janice Lewis was injured in a fall. Ms. Lewis contacted Mr. Harrison, who then referred her to Respondents to handle her personal injury claim. In February 2001, Respondents jointly agreed to represent Lewis and to accept as their fee one-third of any amount recovered.

On January 6, 2003, Respondent Williams filed a complaint on Ms. Lewis's behalf, but never caused a copy of the complaint and summons to be served on the defendants. (Adm. Ex. 9). On December 2, 2004, the court, on its own motion, scheduled a status hearing in Ms.

PAGE 7:

Lewis's case for January 10, 2005. Respondents received notice of this status hearing, but failed to appear. The court dismissed the case for want of prosecution. (Adm. Ex. 9).

Respondents did not inform Ms. Lewis that her case had been dismissed. On at least two occasions in 2006, Ms. Lewis spoke to Respondent Krizman about the status of her case and was informed that her claim was still pending. These statements were false as Respondent Krizman knew or should have known that the case had been dismissed. Ms. Lewis's claim is now time-barred.

Count VI

By correspondence dated July 24, 2007, and July 27, 2007, Mr. Harrison requested that the Administrator investigate Respondents' handling of the matters relating to Mr. Miller, Mr. Ford, and Ms. Eaton. In addition to making misrepresentations to the clients, Mr. Harrison advised that Respondents were misleading him as to the status of the cases. (Adm. Exs. 1, 2). After

PAGE 8:

reviewing the materials submitted by Mr. Harrison in support of his request, the Administrator initiated an investigation into Respondents' conduct.

By letter dated July 30, 2007, the Administrator notified Respondents of the initiation of the investigation and requested that they provide information responsive to Mr. Harrison's allegations within 14 days. As of August 14, 2007, Respondents had not responded to the Administrator's requests, so the Administrator sent them each another letter notifying them of their obligation to respond to such a request pursuant to Commission Rule 53. In each instance, Respondents received the Administrator's letters shortly after they were sent.

By correspondence dated August 2, 2007, and September 21, 2007, Mr. Harrison requested that the Administrator investigate Respondents' handling of Ms. Wilson's and Ms. Lewis's matters. In addition to making misrepresentations to the clients, Mr. Harrison advised that Respondents were misleading him as to the status of the cases. (Adm. Exs. 3, 4). After reviewing the materials submitted by Mr. Harrison in support of his request, the Administrator initiated an additional investigation into Respondents' conduct.

By letter dated August 7, 2007, the Administrator notified Respondents of the initiation of the additional investigation and requested that they provide information responsive to Mr. Harrison's allegations within 14 days.

As of September 28, 2007, Respondents had not responded to the Administrator's requests for information. On that date, the Administrator issued two subpoenas duces tecum, to Respondents, respectively. The subpoenas were personally served on October 5, 2007, and commanded Respondent Krizman to appear at the Commission's Chicago office on October 11, 2007, and Respondent Williams to appear at the Commission's Chicago office on October 12, 2007. The subpoenas also commanded both Respondents to produce various materials relating to their handling of matters for Mr. Miller, Mr. Ford, Ms. Eaton and Ms. Lewis.

Neither Respondent Krizman nor Respondent Williams have appeared, produced any materials, or provided any information in compliance with the Administrator's subpoenas duces tecum. The Administrator has not excused or waived their appearances or production of materials in response to the subpoenas.

Evidence Offered in Aggravation

Prior Discipline: Respondent Williams

On September 21, 2006, the Illinois Supreme Court ordered that Respondent Williams 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 Respondent's settlement of a personal injury claim without his client's authorization, his conversion of approximately $1,600 from the client's settlement proceeds, and his unauthorized practice of law after his name was removed from the master roll of attorneys in 2005. The

PAGE 9:

misconduct occurred in 2004 and 2005. In Re Williams, 05 CH 118, M.R. 21037 (September 21, 2006).

On December 28, 2007, as a result of Respondent Williams' failure to comply with the conditions of his probation, the Court revoked the suspension imposed by its order of September 21, 2006. Respondent Williams was then suspended for the unserved period of the one-year suspension.

Respondent Williams was later suspended for one year and until further order of the Court for neglecting a client matter, making repeated misrepresentations to the client as to the status of his case, and failing to participate in his disciplinary proceedings. The client's matter is now time-barred. This misconduct occurred from 2002 through 2007. In re Williams, 07 CH 102, M.R. 22287 (May 19, 2008).

Prior Discipline: Respondent Krizman

On November 17, 2006, Respondent was censured, on consent, for neglecting two client matters, failing to communicate with one client, and making misrepresentations to the other client. One matter is now time-barred. The misconduct occurred from 2002 through 2005. In re Krizman, 06 CH 35, M.R. 21196 (November 17, 2006).

Respondent Krizman was later suspended for one year and until further order of the Court for settling one matter without the client's consent, making misrepresentations to that client, and failing to withdraw on behalf of another client after being discharged. As a result of Respondent Krizman's misconduct, both clients lost their right to pursue their claims. Respondent Krizman failed to participate in these disciplinary proceedings. This misconduct occurred form 1999 through 2005. In re Krizman, 07 CH 101, M.R. 22329 (May 19, 2008).

PAGE 10:

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 Administrator's six-count Complaint, Respondents' failure to file an answer to the Complaint, the order deeming the allegations of the Complaint admitted, and Administrator's Exhibits 1 through 9, we find clear and convincing evidence that Respondents engaged in the acts alleged and committed the following misconduct as charged in the complaint.

Specifically, we find that Respondents engaged in the following misconduct:

  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 ("Rules")(Counts I-V);

  2. failed 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 of the Rules (Counts I-V);

  3. failed to make reasonable efforts to expedite litigation consistent with the interests of the client in violation of Rule 3.2 of the Rules (Counts I-V);

  4. engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Rules (Counts I, III, IV, V);

  5. failed to respond to a lawful demand for information from a disciplinary authority in violation Rule 8.1(a)(2) of the Rules (Count VI);

  6. engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Rules (Counts I-VI);

  7. 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 (Counts I-VI).

PAGE 11:

RECOMMENDATION

The purpose of the attorney disciplinary system is not to punish an attorney for misconduct. Rather, the goal is to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice. In re Spak, 188 Ill.2d 53, 67, 719 N.E.2d 747 (1999). In determining the appropriate sanction, the nature of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession are to be considered. In re Gorecki, 208 Ill.2d 350, 360-61, 802 N.E.2d 1194 (2003). Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill.2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill.2d 459, 472, 641 N.E.2d 473 (1994).

The Administrator, citing In re Levin, 118 Ill. 2d 77, 514 N.E.2d 174 (1987), In re Stanfel, 96 CH 618, M.R. 13943 (September 24, 1997), and In re Gatz, 98 CH 135, M.R. 16142 (November 19, 1999), recommends disbarment. In Levin, the attorney was disbarred for neglecting three criminal matters, making misrepresentations to his clients, converting funds, and failing to cooperate in the ARDC's investigation of these charges. The attorney had also been disciplined on two prior occasions for neglecting client matters.

In Stanfel, the attorney was disbarred for neglecting five matters, continually failing to communicate with his clients, failing to respond to requests for information from the Commission, and failing to participate in his disciplinary proceedings. Similarly, in Gatz, disbarment was ordered where the attorney neglected six client matters, failed to communicate with his clients, gave false assurances to one client, and failed to participate in the disciplinary

PAGE 12:

proceedings. As a result of the attorney's neglect, several of the clients' actions were time-barred.

Respondents' misconduct in this matter is similarly egregious as the misconduct involved in Levin, Stanfel and Gatz. In addition, similar factors in aggravation are present. First, Respondents' failure to attend and participate in these proceedings is a factor that merits considerable weight. Their absence demonstrates a lack of respect for the disciplinary process and the profession. See In re Brody, 65 Ill.2d 152, 357 N.E.2d 498, 500 (1976). Second, Respondents' wrongdoing was not limited to an isolated incident. 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). Rather, they engaged in an extensive pattern of neglect and deceit involving numerous clients, Mr. Harrison, and the ARDC. Mr. Miller, Mr. Ford, Ms. Eaton, Ms. Williams, and Ms. Lewis have all been harmed by Respondents' misconduct and have lost the right to pursue their claims. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978).

Finally, we consider that both Respondents have extensive disciplinary records. Prior discipline has been considered to be a significant aggravating factor in determining the proper sanction. See In re Blank, 145 Ill.2d 534, 585 N.E.2d 105 (1991); In re Guilford, 1145 Ill.2d 495, 505 N.E.2d 342, 345 (1987). It is important to note that the misconduct involved in this matter occurred over the same period of time as the misconduct involved in Respondents' previous disciplinary proceedings. However, 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 subsequent disciplinary matter. See In re Teichner, 104 Ill.2d 150, 470 N.E.2d 972 (1984).

We are particularly troubled by Respondents' lack of cooperation in this investigation. Their earlier disciplinary proceedings should have caused Respondents to be acutely aware of

PAGE 13:

their professional obligation to respond to the Administrator's requests for information in the current case. Indeed, Respondent Williams ignored the ARDC's investigation in this matter while serving a period of probation imposed in a prior disciplinary matter.

Respondents have demonstrated a complete disregard for their professional responsibilities and for these proceedings. In light of their extensive pattern of misconduct, we are of the opinion that Respondents pose a significant danger to the public and will continue to cause great damage if allowed to practice. Keeping in mind the purposes of the disciplinary process, which are to safeguard the public from any future abuse by Respondents, to preserve the integrity of the legal profession, and to protect the administration of justice from reproach, we conclude that the most severe discipline should be imposed. Accordingly, we recommend that Respondents Roger H. Williams and Tracy Hensler Krizman be disbarred.

Date Entered: July 17, 2008

Champ W. Davis, Jr. with Edward S. Harmening and Bernard Judge, concurring