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

In the Matter of:

 ROGER ALBERT WEILER,

Attorney-Respondent, 

No.  2961776.

 

Commission No.  08 CH 7

FILED -  January 24, 2008

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Meriel Coleman, pursuant to Supreme Court Rule 753(b), complains of Respondent, Roger Albert Weiler, who was licensed to practice law in the State of Illinois on November 17, 1952, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

ALLEGATIONS COMMON TO ALL COUNTS

1. At all times alleged in this complaint, the United States Bankruptcy Code, 11 U.S.C. 521, provided that a bankruptcy debtor was obligated to file a list of creditors, and, unless otherwise ordered by the Court, a schedule of assets and liabilities, a schedule of current income and expenditures, and a statement of the debtor's financial affairs.

2. At all times alleged in this complaint, the United States Bankruptcy Code, 11 U.S.C. 727(a)(2) and (a)(4), provided, in part, that the court shall not grant a discharge in a bankruptcy petition if the debtor, with intent to hinder, delay, or defraud an officer of the estate charged with custody of the debtor's property, has transferred or concealed property of the debtor within one year before the date of the filing of the petition, or if the debtor knowingly made a false oath or account or withheld from an officer of the debtor's estate any recorded information relating to the debtor's property or financial affairs.

3. At all times alleged in this complaint, the United States Code, 18 U.S.C. 152, provided, in part, that a person shall be fined, imprisoned not more that five years, or both for knowingly and fraudulently concealing from a trustee in connection with a case under the Bankruptcy Code any property belonging to the estate of a debtor; or who knowingly and fraudulently makes a false oath or statement under penalty of perjury in any case under the Bankruptcy Code; or who knowingly and fraudulently withholds from a trustee any recorded information relating to the property or financial affairs of a debtor.

COUNT I
(Dishonesty in Intaglio Bankruptcy)

4. In and subsequent to 1999, Respondent owned and served as the president of Intaglio Vivi-Color Alliance, Ltd. ("Intaglio"), an Illinois corporation in the business of engraving, replating, maintaining, and servicing large rollers used for the printing process of gravure.

5. At all times alleged in this complaint, Old E.T., a printing corporation located in Battle Creek, Michigan, was owned and operated by Robert Schoder ("Schoder"), a former employee and business partner of Respondent. Old E.T. was the successor company to International Intaglio Equipment Incorporated, of which Respondent was half owner.

6. On September 27, 2001, Respondent caused to be filed on behalf of Intaglio a voluntary bankruptcy petition under Chapter 11 in the United States Bankruptcy Court for the Southern District of Ohio. The Clerk of the Court docketed the matter as In re Intaglio Vivi-Color Alliance, case number 01-17204.

7. On January 17, 2002, pursuant to 11 U.S.C. 363(b) and (f) and Rule 6004(c) of the Federal Rules of Bankruptcy, Respondent caused Intaglio to petition the bankruptcy court in case number 01-17204 for leave for Intaglio to sell a Polishmaster System to Old E.T. for $75,000

8. At the time that Respondent caused Intaglio to file a petition in case number 01-17204 for leave to sell the Polishmaster for $75,000, Old E.T., through Schoder, had an agreement to sale the Polishmaster engraving system to WRE for $110,000. Respondent was aware that Old E.T. agreed to sale the Polishmaster for $35,000 more then Old E.T. agreed to pay Intaglio for the Polishmaster. At no time did Respondent disclose to the bankruptcy court that Old E.T. had arranged to sale the Polishmaster for $35,000 more then it was paying Intaglio.

9. On January 24, 2002, the court in case number 01-17204 approved the sale of the Polishmaster to Old E.T. for $75,000.

10. On or around January 29, 2002, Intaglio sold the Polishmaster to Old E.T. for $75,000.

11. On January 29, 2002, the day Old E.T. sold the Polishmaster, Schoder personally, gave Respondent $10,000.

12. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;

  2. conduct which is prejudicial to the administration justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

  3. conduct which tends to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct

COUNT II
(Failure to Disclose and Concealment of Assets in Personal Bankruptcy-Amberly Woods
Proceeds)

13. As of May 23, 2000, Respondent and Charlotte Weiler, his wife, were the sole shareholders in TIG, Ltd. ("TIG"), a Delaware corporation, which owned the real estate on which Intaglio's facilities were located on.

14. In January 2001, Respondent incorporated IVA/Prepress, LTD ("Prepress") for the purpose of shifting the non-gravure portion of Intaglio's business to a separate corporation. Respondent was President and sole shareholder of Prepress.

15. On May 23, 2000, Respondent, individually and as President of TIG, and Joseph Roberti, ("Roberti") individually and on behalf of the Joseph M. Roberti Revocable Trust, (collectively "lenders") entered into a Credit Support Agreement ("Amberly Woods Agreement") with Richard Swanson and Amberly Woods LLC, a Wisconsin limited liability company (collectively "borrowers").

16. Under the terms of the Amberly Woods Agreement, Respondent and Roberti agreed to provide letters of credit for a term of two years from the date of the Amberly Woods Agreement for a condominium development in Lake Forest, Illinois. Amberly Woods was required to have the letters of credit as a condition of a loan being made by a bank.

17. In consideration of the Amberly Woods Agreement, the borrowers agreed to pay the lenders $500,000 no later than May 23, 2002. Respondent and TIG's share of the fee from the Amberly Woods Agreement was approximately $250,000.

18. As of May 24, 2002, the fee from the Amberly Woods Agreement, referred to in paragraph 17, above, was not paid and Respondent and other parties to the Amberly Woods Agreement entered into a First Payoff Agreement that extended the time and terms of the Amberly Woods Agreement. Pursuant to the terms of the First Payoff Agreement, Respondent was entitled to receive $50,000 by June 28, 2002, and the remainder the funds pursuant to the Amberly Woods Agreement due to him over an additional period of time.

19. On July 9, 2002, Respondent, through TIG, received a $25,000 against Respondent's share of the Amberly Woods fee. Respondent subsequently paid $15,000 to Katz, Randall and Weinberg, his personal bankruptcy attorneys, and $11,000 to Prepress.

20. On July 9, 2002, Respondent and Charlotte Weiler, caused to be filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code that named Respondent and Charlotte Weiler as debtors. The matter was docketed as In re Roger A. Weiler and Charlotte P. Weiler, case number 02 B 26164 by the United States Bankruptcy Court, Northern District of Illinois, Eastern Division.

21. Pursuant to 11 U.S.C. 521 of the United State Bankruptcy Code, as part of his Chapter 11 petition, Respondent was required to file schedules disclosing, inter alia the following:

  1. all real property in which he had any legal, equitable, or future interest, including any property in which he held rights and powers exercisable for his own benefit (Schedule A);

  2. all transfers of property, either absolutely or as security, within one year immediately preceding the filing of the Chapter 11 petition (Statement of Financial Affairs);

  3. all personal property of any kind (Schedule B);

  4. any and all property he claimed as exempt from the bankruptcy estate (Schedule C);

22. On or around August 13, 2002, Respondent and Charlotte Weiler signed with knowledge that they would be filed, in case number 02 B 26164, a Summary of Schedules, Schedules A-J and their Statement of Financial Affairs.

23. Respondent did not report on his schedules or otherwise disclose as an asset his right to receive at least $250,000 or his receipt of $25,000, as a result of the Amberly Wood Agreement and First Payoff Agreement, referred to in paragraphs 17, 18, and, 19 above.

24. As part of the bankruptcy petition, on August 13, 2002, Respondent signed a "Declaration Concerning Debtor's Schedules" in which he declared, under penalty of perjury, that he had read the schedules and that they were true and correct to the best of his knowledge. Respondent's "Declaration Concerning Debtor's Schedules" was false in that Respondent's schedules referred to in paragraphs 22., above, omitted disclosures of Respondent's rights under the Amberly Woods Agreement, the First Payoff Statement, and Respondent's receipt of $25,000 pursuant to those agreements.

25. Respondent knew or should have known that, pursuant to 11 U.S.C. 521 of the United States Bankruptcy Code, he was required to report in the petition all assets, including his right to receive and his receipt of income from the Amberly Woods Agreement and First Payoff Agreement.

26. Between August 2002 and December 2002, Respondent received additional advances against the Amberly Woods Agreement fee totaling $274,961.86 from Roberti, bringing the total amount of advances that Respondent received from the Amberly Woods Agreement to $299,961.86. Of the $299,961.86 received by Respondent from the Amberly Woods Agreement fee, $159,305.79 was Respondent and TIG's share of the fee. Because the balance of the funds belonged to Roberti, Respondent gave him a promissory note for the additional $140,656.07 that he received.

27. In March 2003, Respondent and Charlotte Weiler amended their schedules in case number 02 B 26164. Respondent did not report on his amended schedules or otherwise disclose as an asset his right to receive income from the Amberly Woods Agreement and First Payoff Agreement, referred to in paragraphs 17 and 18, above, or his receipt of the $184,505.79 as an advance against his fee from Amberly Woods Agreement.

28. Respondent knew or should have known that, pursuant to 11 U.S.C. 521 of the United States Bankruptcy Code, he was required to report in the petition all assets, including his right to receive or his receipt of income from the Amberly Woods Agreement and First Payoff Agreements.

29. On March 31, 2003, Harris Trust and Bank ("Harris Bank"), one of Respondent's creditors, filed a motion in case number 02 B 2616 requesting that Respondent's Chapter 11 bankruptcy be converted into a Chapter 7 bankruptcy or in the alternative that a trustee be appointed, alleging, in part, that Respondent and Charlotte Weiler engaged in unreasonable delay by filing inaccurate and incomplete schedules, referred to in paragraphs 22 and 27, above.

30. On May 7, 2003, the Court entered an order converting case number 02 B 26164 from Chapter 11 to Chapter 7 of the bankruptcy code.

31. On May 21, 2003, Respondent and the other parties to the Amberly Woods Agreement entered into a Second Payoff Agreement, under which Respondent was entitled to receive an additional $98,000 from the borrowers under the Amberly Woods Agreement.

32. On or around May 27, 2003, at Respondent's direction, his $98,000, due under the Second Payoff Agreement, referred to in paragraph 31, above, was sent to the law firm Giordano and Neilan for the benefit and/or use of Respondent's daughter, Claire Weiler.

33. In 2002 and 2003, Respondent received disbursements totaling $257,405.79 from the Amberly Woods Agreement.

34. In June 2003, Respondent and Charlotte Weiler amended their schedules in case number 02 B 26164. Respondent did not report on his amended schedules or otherwise disclose as an asset his right to receive income from the Amberly Woods Agreement, First Payoff Agreement, and Second Payoff Agreement referred to in paragraphs 17, 18, and 31, above, or his receipt of $257,405.79.

35. Respondent knew or should have known that, pursuant to 11 U.S.C. 521 of the United States Bankruptcy Code, he was required to report in the petition all assets, including his right to receive or his receipt of income from the Amberly Woods Agreement, First Payoff Agreement, and the Second Payoff Agreement.

36. On or around June 26, 2003, Respondent signed a "Declaration Concerning Debtor's Schedules" in which he declared, under penalty of perjury, that he had read the schedules and that they were true and correct to the best of his knowledge. Respondent's "Declaration Concerning Debtor's Schedules" was false in that Respondent's amended schedules referred to in paragraphs 34, above, omitted disclosures of Respondent's rights under the Amberly Woods Agreement, the First Payoff Statement, the Second Payoff Statement, and Respondent's receipt of $257,405.79 pursuant to those agreements.

37. Respondent's statements on the schedules and amended schedules to his bankruptcy petitions referred to above in paragraphs 22, 27, and 34 above, were false, and were intended to mislead his creditors and the Trustee. Respondent knew at the time he caused the bankruptcy proceedings to be initiated and his schedules and amended filed that he had right to receive income under the Amberly Woods Agreement, the First Payoff Agreement, and the Second Payoff Agreement referred to in paragraphs 17 , 18, and 31, above, and had received $257,405.79 while the bankruptcy petition was pending.

37. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. making a statement of material fact to a tribunal which the lawyer knows or reasonably should know is false, in violation of Rule 3.3 of the Illinois Rules of Professional Conduct;

  2. committing a criminal act by making false reports concerning assets in a bankruptcy petition in violation of 18 U.S.C. 152, that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct;

  3. engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;

  4. engaging 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

  5. engaging 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.

COUNT III
(1992 Trust Assets)

38. The Administrator realleges the allegations contained in paragraphs 13 through 36, above.

39. On August 14, 1992, Respondent established the Roger A. Weiler Irrevocable Trust ("1992 Trust"), of which Respondent was allegedly the settlor and Charlotte Weiler was, in name only, the trustee.

40. On October 29, 2002, at Respondent's direction, a check for $21,939.21 to TIG was drawn on the Amberly Wood proceeds.

41. Shortly thereafter, Respondent received from TIG $21,500, which was recorded as a "fee." On or around October 30, 2002, Respondent sent $20,000 to the 1992 Trust to pay life insurance premiums held by the 1992 Trust.

42. In December 2002, Respondent and Charlotte Weiler cashed out a portion of an insurance policy held by the 1992 Trust, which resulted in $276,900 in income to the 1992 Trust. At the direction of Respondent, the Trust immediately transferred $250,000 to the law firm of Horwood Marcus and Berk.

43. On or around January 16, 2003, at the direction of Respondent, the law firm of Horwood Marcus and Berk sent $10,000 to GELA, a company founded by Sandra Weiler, Respondent's daughter.

44. In May 2003, Respondent borrowed $90,000 from Roberti and sent those funds to GELA. As of May 2003, the only funds available to GELA were the $100,000 that was provided to the company by Respondent or at his direction.

45. Between May 28, 2003 and July 31, 2003, GELA made disbursements to the 1992 Trust, TIG, Prepress, and Converters totaling $99,000, which constituted a majority of GELA's funds.

46. In April 2004, Respondent and Charlotte Weiler caused the 1992 Trust to sell another portion of a life insurance policy from the 1992 Trust. The 1992 Trust received $300,000, which was deposited in the 1992 Trust's bank account at First Midwest Bank.

47. On or around April 26, 2004, Respondent and Charlotte Weiler caused $60,000 to be disbursed from the 1992 Trust to TIG. On April 27, 2004, TIG disbursed $29,000 to Respondent and Charlotte Weiler.

48. On May 4, 2004, TIG purportedly loaned $30,000 to Cathy Pierri and Steven Beyette, employees of Converter, on the condition that Pierri and Beyette loan the money to Converters.

49. In August 2004, Respondent and Charlotte drew another $50,000 from the 1992 Trust.

50. As of September 3, 2004, approximately $170,000 remained available at Respondent's discretion in the 1992 Trust checking account.

51. Pursuant to 11 U.S.C. 521 of the United States Bankruptcy Code, Respondent was required to report in the petition all assets, including the 1992 Trust.

52. Prior to September, 2004, Respondent did not report on his schedules or otherwise disclose the 1992 Trust as an asset in his bankruptcy estate.

53. Respondent knew or should have known that, pursuant to 11 U.S.C. 521 of the United States Bankruptcy Code, he was required to report in the petition all assets, including the 1992 Trust.

54. On September 4, 2004, Respondent and Charlotte Weiler filed Amended Statement of Financial Affairs and Schedules, which scheduled the value of the 1992 Trust at $0.

55. As part of the bankruptcy petition, Respondent signed a "Declaration Concerning Debtor's Schedules" in which he declared, under penalty of perjury, that he had read the schedules and that they were true and correct to the best of his knowledge. Respondent's "Declaration Concerning the Debtor's Schedules" was false in that Respondent initially did not schedule or disclose the 1992 Trust as an asset. Additionally, in his amended schedule, Respondent falsely claimed that the 1992 Trust has value of $0.

56. Respondent's statements on the schedules to his bankruptcy petitions referred to above in paragraphs 22, 27, and 34, above, were false, and were intended to mislead his creditors and the Trustee. Respondent knew at the time he caused the bankruptcy proceedings to be initiated and his schedules and amended schedules filed that he had the 1992 Trust, which he had failed to schedule or otherwise disclose.

Adversary Proceeding

57. On November 26, 2003, Harris Trust and Savings Bank ("Harris Bank"), a creditor of Respondent and Charlotte Weiler's, filed a complaint in an adversary proceeding in case number 02 B 26164 (docketed as Adversary number 03A04504), requesting that Respondent and Charlotte Weiler be denied discharge, alleging, in part, that they had concealed and transferred a contractual right to receive at least $250,000 under the Amberly Woods agreement, failed to disclose their interest in and control of a trust, and used the proceeds of the trust for their own purpose.

58. On January 6, 2005, the Honorable Carol A. Doyle entered an order in case number 02 B 26164 denying Respondent and Charlotte Weiler discharge of their debts based on the allegations of the Harris Bank's adversary complaint, described in paragraph 57, above.

59. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. making a statement of material fact to a tribunal which the lawyer knows or reasonably should know is false, in violation of Rule 3.3 of the Illinois Rules of Professional Conduct;

  2. committing a criminal act by making false reports concerning assets in a bankruptcy petition in violation of 18 U.S.C. 152, that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct;

  3. engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;

  4. engaging 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

  5. engaging 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.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Meriel Coleman
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Meriel Coleman