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

In the Matter of:

MICHAEL EDWARD MARSH,

Attorney-Respondent, 

No.  3126250.

 

Commission No.  08 CH 26

FILED -  April 14, 2008

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Gina M. Abbatemarco, pursuant to Supreme Court Rule 761 complains of Respondent, Michael Edward Marsh, who was licensed to practice law in the State of Illinois on May 1, 1980, 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:

COUNT I
(Conviction for theft of client retainer fees)

1. On January 9, 2004, a Hearing Board of the Commission issued its Report and Recommendation in the matter of In re Michael E. Marsh, 02 CH 15, in which it found by clear and convincing evidence that Respondent: failed to refund unearned fees to eleven clients despite their repeated requests for refunds and bills; made two false billing entries in one client's bill; and failed to respond to a Commission subpoena. The Hearing Board recommended that Respondent be suspended from the practice of law for a period of two years and until further order of court. Respondent received a copy of the Hearing Board's Report and Recommendation shortly thereafter.

2. On January 30, 2004, Respondent filed exceptions to the Report and Recommendation of the Hearing Board with the Review Board of the Commission.

3. On March 4, 2004, Respondent was served with the Administrator's petition for interim suspension pursuant to Supreme Court Rule 774. As of that date, Respondent was aware that a Hearing Board had recommended that he be suspended for two years and until further order of court, that the Administrator had requested his interim suspension and that that request was under advisement before the Court and could be decided at any time.

4. Respondent filed a response to the Administrator's petition on April 24, 2004.

5. Between April 2004 and May 4, 2004, Respondent agreed to represent Katherine L. Geer, Jonessa Farano, Dennis Box, Christine Reed, and Steven Julifs with regard to various domestic relations matters. Each client paid Respondent the following amounts in advance fee payments:

CLIENT

ADVANCED FEE PAYMENTS

Christine Reed

$3,500

Jonessa Farano

$3,400

Dennis Box

$3,500

Katherine Geer

$3,500

Steven Julifs

$5,000

6. At no time prior to May 6, 2004, did Respondent inform Geer, Farano, Box, Reed and Julifs that a Hearing Board had recommended that he be suspended for two years and until further order of court, that the Administrator had requested his interim suspension and that that request was under advisement before the Court and could be decided at any time.

7. On May 4, 2004, the Illinois Supreme Court ruled on the Administrator's petition (in case number M.R. 19556) and suspended Respondent from the practice of law on an interim basis. Respondent received notification of his suspension from the Clerk of the Supreme Court on May 6, 2004.

8. On or about May 14, 2004, Respondent sent Geer, Farano, Box, Reed and Julifs letters informing them of his suspension referenced above and instructing them to contact his office by May 29, 2004 to obtain their files.

9. Between May 14, 2004 and December 2005, Geer, Farano, Box, Reed and Julifs made several unsuccessful attempts to contact Respondent telephone, by visiting his office (which was closed) and by sending letters by certified mail requesting their files and an accounting of their retainer monies and refund. At no time between May 14, 2004 and December 2005, did Respondent return any of the telephone calls or otherwise communicate with Geer, Farano, Box, Reed and Julifs, although he was aware or should have been aware of their efforts to contact him.

10. Between May 6, 2004 and January 9, 2008 Respondent did not refund any of the retainer monies referenced in paragraph five to Geer, Farano, Box, Reed and Julifs or had he performed sufficient services on their behalf which would justify the retention of the fees paid by them.

11. On June 23, 2004, the Review Board struck Respondent's exceptions to the Report and Recommendation of the Hearing Board pursuant to Commission Rule 302(j) because Respondent had not filed a brief in the matter, and submitted the Hearing Board Report to the Illinois Supreme Court.

12. On September 27, 2004, the Illinois Supreme Court entered a final order for discipline and mandate in case number 02 CH 15, suspending Respondent from the practice of law for a period of two years and until further order of court.

13. On December 6, 2005, Respondent was named as a criminal defendant in a five-count complaint filed in the Circuit Court of DuPage County, Illinois, entitled People v. Michael E. Marsh, No. 05 CF 3543. The complaint charged Respondent with theft of Geer, Farano, Box, Reed and Julif's retainer monies, in violation of 720 ILCS 5/16-1(a)(1)(A). On January 24, 2006, a superseding five-count indictment was issued against Respondent in DuPage County in case number 05 CF 3543. A certified copy of the indictment is attached as Exhibit One.

14. On January 9, 2008, Respondent entered a plea of guilty before the Honorable Kathryn E. Creswell, to counts one through five of the indictment, Class A misdemeanors, theft-unauthorized control of property not exceeding $300, in violation of 720 ILCS 5/16-1(a)(1)(b)(1) of the Illinois Compiled Statutes. As per his plea agreement, Respondent's charges were reduced from felonies to misdemeanors.

15. On January 9, 2008, Judge Creswell sentenced Respondent to a ninety (90) day period of incarceration and twenty-four months of probation. Respondent was ordered to pay restitution to Geer, Farano, Box, Reed and Julif totaling $804 representing refunds they were still due that previously had not been paid to them through the Attorney Registration and Disciplinary Commission's Client Protection Program and $16,976 to the Attorney Registration and Disciplinary Commission for monies it previously paid out to those clients from its Client Protection Program. Judge Creswell also entered a memorandum of judgment in favor of the Commission for $61,223 for monies paid by the Client Protection Program to clients not directly involved with case number 05 CF 3543.

16. As a result of the finding of guilt and the conduct described above, Respondent has engaged in the following misconduct:

  1. withdrawing from employment without delivering all papers and property to which the client is entitled, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct;

  2. failure to refund any part 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;

  3. committing criminal acts (by violating 720 ILCS 5/16- 1(a)(1)(b)(1) of the Illinois Compiled Statutes) that reflect 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;

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

  5. 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 II
(Neglect of the Cockriel divorce matter)

17. In or about June 1990, Respondent agreed to represent Yong Cha Cockriel ("Cockriel") in a dissolution of marriage proceeding against Cockriel's husband, Orville Cockriel. In or about June 1990, Respondent received $1,500 from Cockriel as an advance fee payment.

18. On June 15, 1990, Respondent filed a Petition for Dissolution of Marriage on behalf of Cockriel in the Circuit Court for the Sixteenth Judicial Circuit in Kane County, Illinois. The clerk of the court docketed the matter as In re the Marriage of Cockriel, case number D KA 90 0963.

19. On April 9, 1991, the Hon. Donald J. Fabian granted Respondent's motion to default Cockriel's husband based on his failure to answer the petition for dissolution or appear at any of the court hearings. On that date, Respondent proceeded to conduct a prove-up before the court and Judge Fabian issued a ruling in the dissolution of marriage proceeding.

20. On April 9, 1991, Judge Fabian ordered Respondent to prepare and provide the court with a copy of a judgment order incorporating the terms of his ruling, to provide a certificate of dissolution of marriage and to pay the court reporter's fees for the transcript of the April 9, 1991 proceedings on the next court date, May 7, 1991.

21. On May 7, 1991, case number D KA 90 0963 was called before Judge Fabian. Respondent did not appear in court to provide the court with a proposed judgment order incorporating the terms of Judge Fabian's ruling, provide a certificate of dissolution of marriage and pay the court reporter's fees for the transcript of the April 9, 1991 proceedings. As a result, Judge Fabian ordered that the case be dismissed without prejudice because Respondent failed to present the court with a proposed judgment order. Judge Fabian ordered the clerk of the court to send a copy of his May 7, 1991 to Respondent.

22. On or about May 7, 1991 Respondent received a copy of the court's May 7, 1991 order. Respondent knew or should have known of Judge Fabian's May 7, 1991 ruling.

23. At no time after May 7, 1991, did Respondent take steps to reinstate case number D KA 90 0963 or comply with Judge Fabian's May 7, 1991 order.

24. At no time after May 7, 1991, did Respondent inform Cockriel that her case had been dismissed and that her dissolution matter had not been finalized.

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

  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 promptly to comply with reasonable requests for information in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

  3. failure to explain a matter to the extent necessary to permit the client to make an informed decision regarding representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct;

  4. 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. conduct which is prejudicial to the administration of justice or 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 respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held pursuant to Supreme Court Rule 761, and that

the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Gina M. Abbatemarco
Counsel for Administrator
130 E. Randolph Drive, Ste. 1500
Chicago, IL 60601
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Gina M. Abbatemarco