BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 08 CH 17
FILED - March 18, 2008
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Cass R. BuscherCass R. Buscher, pursuant to Supreme Court Rule 753(b), complains of Respondent, James H. Himmel, who was licensed to practice law in the State of Illinois on November 6, 1975, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute:
(Neglect of the Mager lawsuit and misrepresentations to his client)
1. On or about October 5, 2000, Charles and Gloria Mager ("the Magers") purchased a home located at 2966 Sharon Drive, New Lenox, Illinois from Daniel Saenz ("Saenz").
2. Within a week of purchasing the home, the Magers noticed several defects and began contacting Saenz to correct the problems. On or about April 24, 2002, the Magers directed their attorney, Albin J. Sporny, III ("Sporny"), to send a detailed letter to Saenz listing the remaining defects.
3. On or about April 24, 2002, Sporny sent a letter to Saenz pursuant to the Magers' request.
4. On or about November 5, 2002, Sporny, who was unable to resolve the issue between Saenz and the Magers, referred the Magers to Respondent to represent them if litigation was necessary.
5. In or about April 2003, Respondent agreed to represent the Magers in their dispute against Saenz. On or about June 9, 2003, Charles Mager ("Charles") paid Respondent a $1,500 retainer to pursue a lawsuit against Saenz and agreed to pay Respondent an hourly fee for his services.
6. At all times plead in the complaint, 735 ILCS 5/13-206 provided that a suit claiming damages for construction defect claims had to be initiated within four years after the cause of action accrued or was discovered. Therefore, Respondent was required to file a claim on behalf of the Magers on or about October 5, 2004.
7. Respondent knew or should have known that any claim filed after on or about October 5, 2004, on behalf of the Magers, would be time-barred.
8. At no time did Respondent file a complaint on behalf of the Magers against Saenz relating to the defects in the Magers' home. As a result, the Magers' construction defect claims became time-barred.
9. At no time did Respondent inform the Magers' that the statute of limitations passed and that their claim had become time-barred.
10. On or about October 24, 2004, Charles sent Respondent a letter requesting the status of the lawsuit against Saenz. Respondent received the letter shortly thereafter, but did not respond to Charles' request for information.
11. In November 2004, Charles telephoned Respondent regarding the status of the Magers claim against Saenz. During that telephone conversation, Respondent advised Mager that "the Will County Sheriff was not doing his job and had not served Saenz." Respondent advised Charles "to be patient because the wheels of justice turn slowly."
12. Respondent's statements to Charles, outlined in paragraph 11, above, were false and Respondent knew they were false, because at no time did Respondent file a complaint against Saenz on behalf of the Magers.
13. Between November 2004 and March 2006, Charles believed that Respondent was pursuing the lawsuit against Saenz.
14. On or about March 15, 2006, Charles telephoned Respondent regarding the status of the Magers' claim against Saenz. During that telephone conversation, Respondent advised Charles that he "had taken no action in the matter because he was waiting for information from Charles."
15. At no time on or before March 15, 2006, had Respondent requested that the Magers provide him any information before proceeding with their claim against Saenz.
16. On or about March 16, 2006, Charles sent Respondent a letter memorializing their March 15, 2006 conversation as well as referencing the telephone conversation, described in paragraph 11, above. Respondent received the letter shortly thereafter but did not respond.
17. Between March 31, 2006 and August 20, 2007, Charles sent Respondent six letters requesting information regarding the Magers' claim. Respondent received each letter on or about the date it was sent.
18. At no time did Respondent respond to any of the letters sent to him by Charles between March 31, 2006 and August 20, 2007.
19. By reason of the conduct described above, Respondent has engaged in the following misconduct:
failure to provide competent representation in representing a client in violation Rule 1.1 of the Illinois Rules of Professional Conduct;
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;
failure to keep a client reasonably informed as to the status of a matter in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct,
conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
conduct which is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; 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.
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.
|Cass R. Buscher
Senior Counsel for the Administrator
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: (312) 565-2600