BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2012PR00045
FILED - May 24, 2012
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney Jessica L. Haspel, pursuant to Supreme Court Rule 753(b), complains of Respondent, Shawn Fullerton Luedde, who was licensed to practice law in Illinois on November 4, 2004, 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, and which subjects Respondent to discipline pursuant to Supreme Court Rule 770:
(Neglect, failure to communicate, and dishonest conduct in relation to Jessica Klein)
1. On November 11, 2009, Jessica Klein ("Klein") sustained injuries to her left leg while participating in a class for personal trainers during the course of her employment at XSport Fitness ("XSport"). Shortly thereafter, Klein filed a claim with XSport related to her alleged work injury, and XSport notified its insurance carrier, Travelers Insurance Company ("Travelers"), of Klein's claim. In November 2009, Klein began receiving weekly temporary total disability checks from Travelers in the amount of $213.33.
2. In or about January 2010, Klein met Respondent while visiting The Shire Public House, a bar that Respondent co-owned and which was located on Lincoln Avenue in Chicago. Respondent heard Klein speaking to a friend about her worker's compensation claim, interrupted Klein's conversation, introduced himself as a worker's compensation attorney, and gave Klein his business card.
3. Between January 2010 and May 2010, Klein received medical care for the injuries she sustained on November 11, 2009. In or about May 2010, Klein contacted Respondent, and Respondent agreed to represent her in relation to her worker's compensation claim arising out of the November 11, 2009 incident. Respondent and Klein agreed that Respondent would receive 20 percent of any recovery derived from the claim as his fee.
4. On July 12, 2010, Travelers stopped paying Klein the weekly $213.33 temporary total disability checks referred to in paragraph one, above, because Klein had stopped receiving medical treatment and Travelers wanted information regarding her permanent work restrictions and efforts to obtain a new job. On August 11, 2010, Respondent called Karen E. Bennish, the Travelers insurance adjuster assigned to Klein's claim, and introduced himself as Klein's attorney. Respondent and Bennish discussed Klein's claim and the fact that Travelers had stopped payments to Klein.
5. On August 17, 2010, Bennish called Respondent and left him a message. On August 19, 2010, Respondent called Bennish and told her that he would be demanding a six-figure settlement on Klein's behalf.
6. On August 26, 2010, Respondent called Bennish, and Bennish agreed that Travelers would send Klein a check amounting to approximately 12 weeks of temporary total disability benefits. On or about August 27, 2010, Travelers issued two checks to Klein totaling approximately $2,500. That payment included benefits for the about five weeks in July and August during which Travelers had not sent Klein a check, as well as an advance on future temporary total disability benefits. Travelers sent those checks directly to Klein, and she received them shortly thereafter. At no time after August 27, 2010, did Travelers issue any further payments to Klein.
7. On or about August 30, 2010, at Travelers' request, Klein participated in a functional capacity evaluation to determine her overall physical capabilities and identify any physical barriers that might prevent her from returning to work. On September 30, 2010, Respondent spoke to Bennish, and they discussed the results of the functional capacity evaluation.
8. After September 30, 2010, Respondent stopped communicating with Travelers. In the fall of 2010, Respondent falsely told Klein that Travelers had begun sending Klein's temporary total disability benefits to him. Respondent knew that his statement to that effect was false, and that Travelers had not sent him any funds due to Klein. On an almost weekly basis between November 2010 and March 2011, Respondent met Klein at her residence, and he paid her $200 to $300 in cash on each occasion. Respondent falsely told Klein that the cash payments represented funds sent to him by Travelers.
9. At no time between August and November 2010 did Respondent attend a meeting with representatives of either XSport or Travelers to discuss Klein's claim. Sometime between August and November 2010, Respondent falsely told Klein that he had attended a meeting at XSport's office in Naperville to discuss her claim, and that XSport had fired its attorney because the attorney "was on Klein's side." Respondent knew his statement to Klein was false because no such meeting had taken place.
10. On November 2, 2010, and December 9, 2010, Bennish called and left Respondent voicemail messages regarding Klein's claim. Although Respondent knew or should have known that Bennish had left him messages on those dates, Respondent did not return Bennish's calls.
11. Between October and December 2010, Respondent did not communicate with Travelers, or otherwise take action to pursue Klein's claim against XSport. In or about December 2010, Respondent falsely told Klein that he had filed an application for adjustment of claim with the Illinois Workers' Compensation Commission ("IWCC") in connection with her November 11, 2009 accident. Respondent also falsely told Klein that Travelers would be sending him a check on Klein's behalf for approximately $15,000. Respondent falsely stated that Travelers had agreed that Klein's weekly benefits should have been calculated based on a higher hourly wage than Travelers had been utilizing, and that, as a result, Travelers would be paying Klein for overdue back pay. Subsequently, Respondent falsely told Klein that the alleged check for approximately $15,000 had been returned to Travelers because he had not been present to sign for the certified mail. Later, Respondent falsely told Klein that Travelers would not resend the alleged check because the company had changed its mind about paying Klein that money. Respondent knew that his statements described above were false, because he had stopped communicating with Travelers after September 30, 2010; at no time did he file an application for adjustment of claim on Klein's behalf; and at no time had Travelers either agreed to issue a check for approximately $15,000 to Klein, or issued such a check.
12. At no time between December 2010 and February 2011 did Respondent speak to a representative of Travelers, or otherwise take any action to pursue Klein's claim against XSport. Between December 2010 and February 2011, Klein spoke to Respondent at least three to four times per week. During those conversations, Respondent falsely told Klein that he had appeared in court on her behalf, that her case was going well, and that the judge was on her side. As Respondent knew, those statements were false, because he had not initiated any proceedings relating to Klein's claim, and no judge had been assigned to hear Klein's matter or had agreed with Klein's position.
13. On February 18, 2011, Travelers Insurance Adjuster Diana Johnson ("Johnson") contacted Respondent to discuss Klein's claim. Although Respondent knew or should have known about Johnson's call, at no time thereafter did Respondent return Johnson's call or otherwise try to communicate with Travelers on Klein's behalf.
14. As of March 2011, no legal proceeding was pending in connection with Klein's worker's compensation claim. In or about early March 2011, Respondent falsely told Klein that a trial date had been set in relation to her claim against XSport. Respondent met with Klein at a Starbucks in Lincoln Square to prepare her to testify at that purported trial date. In or about mid-March 2011, Respondent caused Klein to appear at the Thompson Center for the purported trial in her worker's compensation matter. Respondent met Klein in the foyer of the Thompson Center and falsely told Klein that the other parties had arrived early and that her matter had been continued prior to her arrival. In fact, as Respondent knew, no proceeding was pending in relation to Klein's claim, and no trial date had been set or continued. Shortly thereafter, Respondent stopped providing weekly cash payments to Klein.
15. Between late March and mid-April 2011, Klein contacted Respondent at least 12 times. Although Respondent knew or should have known of Klein's efforts to contact him, he did not contact Klein until about April 14, 2011. When they spoke on or about April 14, 2011, Respondent claimed that he had just returned from Canada and that his phone did not work there. Respondent also falsely told Klein that she should have recently received a check from Travelers for overdue back pay. Respondent told Klein that he would look into the status of that check and get back to her. Respondent knew that his statements to Klein were false because he had stopped communicating with Travelers after September 30, 2010, and at no time in 2011 had Travelers agreed to send a check to Klein.
16. Klein contacted Respondent by phone and email at least 12 times after her conversation with him on or about April 14, 2011. Although Respondent knew or should have known that Klein had called or emailed him at least 12 times, at no time after about April 14, 2011 did Respondent communicate with Klein regarding the status of her claim or respond to her requests for information.
17. At no time prior to May 24, 2012 (the date Panel D of the Commission Inquiry Board voted that a complaint be filed in this matter) did Respondent file an application for adjustment of claim on behalf of Klein.
18. By reason of the conduct described above Respondent has engaged in the following misconduct:
a. failing to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);
b. failing to keep a client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information, in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct (2010);
c. conduct involving dishonest, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);
d. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and
e. conduct which tends to defeat the administration of justice, or to bring the courts or the legal profession into disrepute.
(Failure to respond to a lawful demand for information from a disciplinary authority)
19. The Administrator realleges the facts set forth in paragraphs one through 18, above.
20. On May 16, 2011, the Administrator received a request for investigation of Respondent from attorney Arnold G. Rubin describing Respondent's alleged lack of diligence and dishonest conduct in connection with Klein's claim against XSport. After reviewing the information provided by Mr. Rubin, the Administrator initiated an investigation into Respondent's conduct.
21. On May 24, 2011, counsel for the Administrator sent a letter to Respondent requesting that Respondent provide a written response to Mr. Rubin's allegations within 14 days, or by June 7, 2011. Respondent received the May 24, 2011 letter shortly thereafter.
22. As of June 30, 2011, Respondent had not responded to the Administrator's May 24, 2011 letter. On June 30, 2011, counsel for the Administrator sent Respondent a second letter requesting that Respondent submit a written response to Mr. Rubin's allegations within seven days, or by July 7, 2011. Respondent received the June 30, 2011 letter shortly thereafter.
23. As of August 19, 2011, Respondent had not responded to the Administrator's May 24 and June 30, 2011 requests for information. On August 19, 2011, counsel for the Administrator sent Respondent a third letter requesting that Respondent submit a written response to Rubin's allegations within fourteen days, or by September 2, 2011. Respondent received the August 19, 2011 letter shortly thereafter.
24. As of October 14, 2011, Respondent had not responded to any of the Administrator's requests for a written response to Mr. Rubin's allegations. On October 14, 2011, the Administrator issued a subpoena duces tecum to Respondent, which required Respondent to produce documents and appear for a sworn statement at the Commission's Chicago office on November 9, 2011.
25. On October 21, 2011, Commission Senior Investigator Humberto Bobadillo personally served Respondent with the Administrator's subpoena duces tecum.
26. At no time prior to November 9, 2011, did Respondent contact counsel for the Administrator to request a continuance or waiver of his appearance or the production of documents pursuant to the subpoena duces tecum referred to above.
27. At no time did counsel for the Administrator excuse or waive Respondent's November 9, 2011 appearance or his production of documents in response to the subpoena duces tecum. Respondent knew that counsel for the Administrator had not excused or waived his appearance or document production.
28. On November 9, 2011, Respondent did not appear for his sworn statement, nor did he produce any of the documents requested in the Administrator's October 14, 2011 subpoena duces tecum.
At no time prior to May 24, 2012 (the date Panel D of the Commission Inquiry Board voted that a complaint be filed in this matter) has Respondent produced any documents to counsel for the Administrator or in any way responded to Mr. Rubin's allegations.
29. By reason of the conduct described above, Respondent has engaged in the following misconduct:
a. knowingly failing to respond to a lawful demand for information from a disciplinary authority, in violation of Rule 8.1(b) of the Illinois Rules of Professional Conduct (2010);
b. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and
c. conduct which tends to defeat the administration of justice, or to bring the courts or the legal profession into disrepute.
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 753(b), and that the Panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
|Jessica L. Haspel
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600