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

In the Matter of:

 HOWARD A. PETERS, IV,

Attorney-Respondent, 

No.  6275688.

 

Commission No.  08 SH 61

FILED -  FILED - July 7, 2008

COMPLAINT

Jerome Larkin, Administrator of the Illinois Attorney Registration and Disciplinary Commission, by his attorney, Peter L. Rotskoff, pursuant to Supreme Court Rule 753(b), complains of Respondent, Howard A. Peters, IV., who was licensed to practice law in Illinois on November 8, 2001, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or which brings the courts or the legal profession into disrepute:

COUNT I
(Conversion of law firm funds)

1. Between December 1, 2003 and November 16, 2006, the law firm of Scott & Scott, P.C., Springfield, Illinois, ("the Scott firm") employed Respondent as an associate attorney.

2. The Scott firm had a policy in place that all fees earned by associates for legal work were to be remitted to the law firm.

3. During his employment at the Scott firm, Respondent was paid a salary each year and was prohibited from accepting outside legal work or fees, without specific approval from the firm.

4. Between April and November 2007, Respondent received at least the following fees from Scott firm clients, and others, which he did not remit to the firm:

CLIENT

DATE

CHECK #

AMOUNT

Thomas J. Hampton

April 4, 2006

1134

$215.00

Ernest McNeil (Elm Business Development) For Byron E. McNeil

May 2, 2006

1492

$350.00

George W. Burris for Arneal Davis

June 23, 2006

5068

$400.00

Michelle R. Morrison

July 7, 2006

1115

$150.00

Michelle R. Morrison

July 17, 2006

1105

$300.00

Michelle R. Morrison

August 15, 2006

1165

$150.00

 

TOTAL

 

$1,565.00

5. Respondent received the above listed legal fees on behalf of the Scott firm and as an agent and fiduciary of the law firm.

6. At no time did Respondent deliver any part of the above listed payments to the Scott firm.

7. At no time did Respondent notify the Scott firm that he had received the above-listed legal fees.

8. Respondent used all of the above-listed funds for his own personal purposes.

9. At no time did any member of the Scott firm give Respondent authority to deposit the above-listed legal fees into his own personal account or to use the fees for his own purposes.

10. The Scott firm learned about Respondent's conduct set forth above, after Respondent left the firm, when clients began to dispute the outstanding invoices which the firm sent to them.

11. By reason of the conduct set forth above, Respondent has engaged in the following misconduct:

  1. conversion;

  2. breach of fiduciary duty to Scott & Scott, P.C.;

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

  4. conduct which tends to defeat the administration of justice or to bring the courts of the legal profession into disrepute, in violation of Supreme Court Rule 770.

COUNT II
(Conversion - Troy Powers)

1.-10. The Administrator realleges and incorporates Paragraphs 1 through 10 in Count I above.

11. In September 2005, the Scott firm agreed to represent Troy Powers ("Powers") in a case where Powers was charged in Federal Court with distributing cocaine. U.S. v. Powers, case no. 05 CR 30091, U.S. District Court, Central District of Illinois.

12. In September and October of 2005, Powers and/or his family paid the Scott firm $60,000.00. The Scott firm agreed to keep the funds in their trust account and agreed to deduct their fees and expenses from the funds and to make other payments as directed by Powers.

13. Respondent was the primary attorney from the Scott firm who worked on the Powers case.

14. On June 29, 2006, Powers pled guilty in case no. 05 CR 30091.

15. On November 16, 2006, Respondent resigned his employment at the Scott firm.

16. In late November or early December, Powers informed the Scott firm that he wanted Respondent, rather than the Scott firm, to continue representing him.

17. On December 5, 2006, the Court granted the Scott firm's motion to withdraw in case no. 05 CR 30091 and substituted Respondent's appearance in the case.

18. On December 5, 2006, Powers was sentenced to 120 months imprisonment in case no. 05 CR 30091.

19. On January 3, 2007, the Scott firm forwarded a check to Respondent, in the amount of $16,142.77, made payable to "Howard Peters, Attorney Trust Account." The check represented the balance of funds remaining from the $60,000.00 described in Paragraph 12, above.

20. On January 4, 2007, Respondent deposited the $16,142.77 into his account no. 1124109, at United Community Bank, Springfield, Illinois, entitled "Law office of Howard A. Peters - IOLTA Account." On February 2, 2007, Respondent withdrew $1,000.00 from account no. 1124109 and obtained a $1,000.00 cashier's check which he forwarded to Yvonne Gilchrese (Troy Power's mother).

21. Between January 3, 2007 and March 30, 2007, Respondent withdrew the remaining $15,142.77 of Power's funds from account no. 1124109. Respondent withdrew some of the funds in cash and transferred the remaining funds to his personal checking account and used the funds on personal expenses.

22. As of March 30, 2007, Respondent had used the entire $15,142.77 of funds belonging to Powers.

23. As of March 30, 2007, account no. 1124109 had a negative balance of $81.04, and the account remained with a negative until it was closed in September, 2007.

24. At no time did Powers or anyone acting on Powers' behalf, authorize Respondent to use any portion of the $15,142.77 for his own purposes.

25. At no time did Respondent notify Powers that he had withdrawn or used any portion of the $15,142.77.

26. On a number of occasions between January 3, 2007 and February 28, 2008, the date a complaint was voted in this matter, Powers and his mother, Yvonne Gilchrese, have requested that Respondent repay the $15,142.77 and have requested an accounting of the funds.

27. At no time has Respondent repaid any funds to Powers, nor has he provided any accounting to Powers or his mother.

28. By reason of the conduct set forth above, Respondent has engaged in the following misconduct:

  1. conversion;

  2. failure to maintain and appropriately safeguard funds belonging to a client or third person in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct;

  3. failure to promptly deliver to a client or third person funds that the client or a third person is entitled to receive, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct;

  4. failure to keep the client reasonably informed about the status of a matter and promptly comply with reasonable requests for information in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

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

  6. conduct which tends to defeat the administration of justice or to bring the courts and the legal profession into disrepute in violation of Supreme Court Rule 770.

COUNT III
(Failure to return unearned fee)

1. On September 6, 2006, William Jones ("William") was convicted of a felony drug offense and sentenced to six years in the Illinois Department of Corrections.

2. Between April 1, 2007 and July 30, 2007, Respondent was employed by the Illinois Secretary of State as a staff attorney.

3. The Illinois Secretary of State has a policy that requires all employees to notify and receive approval of the Secretary of State before accepting outside employment.

4. At no time did Respondent seek or obtain permission from the Secretary of State to accept outside employment.

5. On or about April 15, 2007, Respondent agreed to represent William in his effort to obtain a transfer from Tamms Correctional Center, Tamms, Illinois, to an institution closer to Metamora, Illinois where his disabled parents lived.

6. Respondent and William agreed that Respondent's fee would be $3,150.00 (which included funds to pay for Respondent to visit William at Tamms Correctional Center, Tamms, Illinois). Respondent and William agreed that $1,000.00 of the fee would be applied from a previously incurred debt which Respondent owed William.

7. On or about April 15, 2007, William's mother, Jacqueline Jones ("Jacqueline"), paid Respondent an additional $2,150.00, by check, with the notation "retainer" written in the memo.

8. On April 16, 2007, Respondent deposited Jacqueline's check into his personal bank account at United Community Bank, Springfield, Illinois.

9. Between April 16, 2007 and April 22, 2007, Respondent used the proceeds of the $2,150.00 check for his own purposes.

10. At no time did Respondent visit William. At no time did Respondent write to the Illinois Department of Corrections on behalf of William or take any other substantial step to effectuate a transfer for William.

11. Respondent did not perform sufficient services to justify a fee of $3,150.00, nor was the amount of time or labor required, or the novelty or difficulty of the work performed by Respondent sufficient to justify the fee.

12. At no time has Respondent refunded any portion of the fee to William or Jacqueline.

13. By reason of the conduct set forth above, Respondent has engaged in the following misconduct:

a. failure to promptly 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; and

b. 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;

c. 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 IV
(Misrepresentations to William and Jacqueline Jones)

1.-12. The Administrator incorporates paragraphs 1-12 of Count III as paragraphs 1-12 of this Count IV as if fully set forth herein.

13. On various occasions between April and November 2007, Respondent represented to William and Jacqueline that attorney Jeffery Bradley was assisting Respondent with the effort to obtain a transfer for William. Respondent further represented to William and Jacqueline that Bradley received $2,000.00 of the fee that they paid to Respondent.

14. Respondent's representations as set forth in Paragraph 13 above, were false. At no time did Respondent contact Bradley about representing William, nor did Respondent forward any portion of the fee to Bradley. At no time did Bradley assist Respondent with William's case and all times in 2007, Bradley was a full-time employee of the Jefferson County State's Attorney's office, in Mount Vernon, Illinois.

15. Respondent knew or reasonably should have known that his representations, as set forth in Paragraph 13 above, were false.

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

  1. in the course of representing a client, making a statement of material fact to a third person which statement the lawyer knows or reasonably should know is false, in violation of Rule 4.1(b) of the Illinois Rules of Professional Conduct;

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

  3. 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.

Peter L. Rotskoff, Senior Counsel 
Attorney Registration and Disciplinary Commission
One North Old Capitol Plaza, Suite 333
Springfield, Illinois 62701
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Peter L. Rotskoff,
        Counsel for the Administrator