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

In the Matter of:

 LEONARD SAMUEL DEFRANCO,

Attorney-Respondent, 

No.  3122606.

 

Commission No.  08 CH 29

FILED -  May 2, 2008

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Allison L. Wood, pursuant to Supreme Court Rule 753(b), complains of Respondent Leonard Samuel DeFranco, who was licensed to practice law in Illinois on November 3, 1978, 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

(Excessive fees from the Estate of Francis Lewis and
the Estate of Carolyn Brne)

1. On April 12, 2003, Francis Lewis ("Lewis") died and left all of her assts to her only daughter, Carolyn Brne ("Brne"), who was named as the executor of her mother's estate. No other heirs or contingent takers were named in Lewis' will. On or about that same date, Brne contacted Respondent and asked him to represent her in her role as executor, and he agreed to represent her at an hourly rate of $275.

2. On May 12, 2003, Respondent filed a Petition for Will and Letters of Administration to open the estate of Lewis, in a matter entitled, Estate of Frances V. Lewis, case no. 03 P 332 in Will County.

3. On June 16, 2004, before the Lewis estate was closed, Brne died. Brne's will left all of her assets to her mother, and named the Northern Trust Bank (the "Bank") as executor of her will. No other heirs or contingent takers were named in Brne's will.

4. Shortly after Brne's death, Respondent asked the Bank to also serve as the executor of the Lewis estate since all of the assets in that estate became part of the Brne estate. The Bank agreed to serve as executor of both estates and retained Respondent to represent it in its capacity as executor.

5. On July 28, 2004, Respondent filed a Petition for Will and Letters of Administration to open the estate of Brne in DuPage County, in a matter entitled Estate of Carolyn Brne, case no. 2004 P 757. On August 24, 2004, the court granted Respondent's motion to appoint the Bank as successor executor of the Lewis estate and issued Letters of Administration to the Bank.

6. The approximate value of the Lewis Estate was $1.4 million dollars and it consisted of seven assets, which included a home and a condominium in Naperville, Illinois, two cars, and a Smith Barney account that contained cash and 5,400 shares of the William Wrigley Company. The approximate value of the Brne estate was $2,142,902.47, of which 60% was in the form of cash from the Lewis estate.

7. At all times relative to his representation of the Bank, Respondent had a fiduciary duty to the Bank and to the Brne heirs to administer and manage the Lewis estate and the Brne estate in such a way as to preserve the assets in both estates.

8. Respondent's billing rate relative to both estates was $275 an hour. He created separate billing statements for each estate, sent them to the Bank, and the Bank paid them.

9. From February 14, 2003 through July 18, 2005, Respondent billed $212,140.80 in total fees relative to the Lewis estate. Some of the billing entries made by Respondent for work he claimed to have performed included:

Date

Billing entry

Hours

9/13/04

Travel to house for leak in basement (crawl), fix and go through file cabinet

5.00

11/10/04

Review records of Fran at home

4.50

11/23/04

Obtain mail and statements, travel to Naperville post office for missing mail

5.00

11/29/04

Visit house for inspection and clean-up, pool leakage

4.00

03/03/05

Discussion with heir locator on telephone

.75

03/25/05

Send info to downtown for Lewis executor deed

1.35

4/27/05

Review mail

1.75

5/10/05

Telephone conference with court clerk, set date for status

1.50

7/12/05

Review file for Brne status

2.00

7/18/05

Check with newspaper re: receipt for publication

1.75

8/30/05

Travel to court to determine any filings

3.50

10. On November 17, 2005, Respondent billed the Lewis estate a flat fee of $12,000, that was paid by the Bank, for an entry that read as follows:

Production, analysis, document retrieval, preparation of closing inventory and final report, travel and attendance in Joliet, and request for closing order.

11. From June 16, 2004 through May 17, 2006, Respondent billed $103,695.50 in total fees relative to the Brne estate. Some of the billing entries made by Respondent for work he claimed to have performed included:

Date

Billing entry

Hours

06/21/04

Met with caregiver, went through documents at house; clothes and secure personals

6.75

07/01/04

Visit home to search for records, papers, files and discuss with caregiver

6.75

07/15/04

Pick up additional death certificates from funeral home

2.50

07/19/04

Drive to house to shut-off leak, wait for plumber

5.50

08/05/04

Drive to house, get keys and supervise record clean-up, assemble bills, documents etc.

6.50

08/17/04

Pick up funeral sign-in book, review for relatives, forward statement

3.50

09/02/04

Open box at Carolyn's bank

3.75

02/10/05

Drive to house and interview caregiver on telephone to see if they know of relatives during illness.

4.50

03/09/05

Contact attorney re: advise on possible wrongful death action

2.50

3/10/05

Research elements of wrongful death action, standard of care in diagnosis and treatment at library, travel to Cook County

7.50

03/15/05

Office conference with law firm of Tom Clancy to ask further questions re: wrongful death

4.50

04/07/05

Contact Washington genealogy firm, review account statement

2.25

12. On May 17, 2006, Respondent billed the Brne estate a flat fee of $12,000, that was paid by the Bank, for an entry that read as follows:

Estimated fees to close Estate. Prepare inventory, distribute funds, prepare reports and attend hearings.

13. In or about May 2005, Respondent was contacted by attorney Edward Reda ("Reda") who advised Respondent that he represented heirs of Brne. On July 8, 2005, the court entered an Order Declaring Heirship, which identified 20 individuals as heirs of Brne. Respondent received a copy of the court's order.

14. In May 2006, Respondent received final accounting documents from the Bank relative to both estates, and tendered those documents, along with his billing statements, to Reda for review and approval.

15. On August 9, 2006, Reda filed a document entitled, "Objections to Final Account of the Northern Trust Company" ("Objections"). In the Objections, Reda claimed that Respondent's billings were excessive and unreasonable and that he did not perform legal services to justify the fees he was paid. Respondent received a copy of the Objections but he did not file a written response.

16. On September 6, the Bank (who obtained counsel to defend it against Reda's Objections) filed a Petition for Recovery Citation ("Petition") against Respondent and Daniel K. Anderson ("Anderson"), the accountant hired by the Bank to provide accounting and tax services to both estates. In the Petition, the Bank claimed that Respondent and Anderson converted or had in their possession or control, cash in the amount of $119,487.40, which belonged to the Estate of Brne. Respondent received a copy of the Petition but he did not file a written response.

17. On September 13, 2006, the Bank filed a motion for hearing on claim for attorney fees, claiming that Respondent's fees were excessive and unreasonable. Respondent received a copy of this motion but he did not file a written response.

18. On or about December 6, 2006, Respondent entered into an agreement with the Bank such that Respondent returned to the Bank, $100,000 of the $315,836.30 in fees he had been paid for both estates.

19. Respondent did not perform services sufficient to justify a fee of $103,695.50 for his work on the Lewis estate, nor was the amount of time or labor required or the novelty or difficulty of the work performed by Respondent sufficient to justify his fees.

20. Respondent did not perform services sufficient services to justify a fee of $212,140.80 for his work on the Brne estate, nor was the amount of time or labor required or the novelty or difficulty of the work performed by Respondent sufficient to justify his fees.

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

  1. obtaining an unreasonable fee in violation of Rule 1.5(a) of the Illinois Rules of Professional Conduct;

  2. breach of fiduciary duty to the Brne estate, the Lewis estate, the Brne heirs, and Northern Trust Bank;

  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; and

  4. conduct which tends to defeat the administration of justice or bring the courts or 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.

Allison L. Wood
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Allison L. Wood