BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

JEFFREY THOMAS ABBOTT,

Attorney-Respondent,

No. 6198081.

Commission No. 2013PR00071

FILED --- March 7, 2014

 

AMENDED COMPLAINT

Jerome Larkin, Administrator of the Illinois Attorney Registration and Disciplinary Commission, by his attorney, Gary S. Rapaport, pursuant to Supreme Court Rules 753(b) and 761(c), complains of Respondent, Jeffrey Thomas Abbott, who was licensed to practice law in Illinois on May 13, 1988, and alleges that Respondent has engaged in the following conduct which subjects him to discipline pursuant to Supreme Court Rule 770:

COUNT I
(Criminal conduct Ė driving under the influence of alcohol)

1. Between approximately 5:00 p.m. on October 4, 2005, and 1:00 a.m. on October 6, 2005, Respondent consumed several beers and shots of peppermint schnapps at a bar in Bloomington, Illinois.

2. At approximately 1:00 a.m. on October 6, 2005, Respondent drove and was in physical control of a vehicle while he was under the influence of alcohol. At that time, Bloomington police officer Kevin Raisbeck ("Officer Raisbeck") observed Respondent drive through stop signs at two intersections and a red light at another intersection without stopping, and turn without signaling. Officer Raisbeck stopped Respondent and noticed that he smelled strongly of alcohol. Respondent failed field sobriety tests and lacked balance. Officer Raisbeck arrested Respondent on charges of driving while under the influence of alcohol ("DUI"), in violation of 625 ILCS 5/11-501(a)(1), disobeying a traffic control device (two counts), in violation of 625 ILCS 5/11-305, disobeying a traffic control signal, in violation of 625 ILCS 5/11-306, and failure to signal a turn, in violation of 625 ILCS 5/11-804.

3. On October 11, 2005, the McLean County Stateís Attorney filed the foregoing charges in a matter docketed as People v. Jeffrey T. Abbott, No. 05 DT 674, in the Circuit Court for McLean County, Illinois.

4. On April 13, 2006, Respondent pled guilty to the charge of DUI and one charge of disobeying a traffic control device. The court placed Respondent on supervision for a period of 24 months, assessed a fine and costs totaling $1,809, and ordered him to complete a 12-hour alcohol intervention program. The other charges were dismissed. The court discharged Respondent from supervision on April 14, 2008.

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

a. committing a criminal act, driving while under the influence of alcohol, in violation of 625 ILCS 5/11-501(a)(2), that reflects adversely on the lawyerís 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 (1990).

COUNT II
(Criminal conduct Ė battery)

6. On the evening of May 30, 2007, Respondent consumed several glasses of wine and became involved in an argument at his home in Normal, Illinois, with Nicholas Navlyt ("Navlyt"). Without legal justification, Respondent intentionally or knowingly made physical contact of an insulting or provoking nature with Navlyt in that he grabbed Navlyt by the hair and slapped him across the face. Melinda Hughes ("Hughes") saw Respondent grab and strike Navlyt, told Respondent that she that she was calling 911, and began to dial her cell phone. Respondent ran to Hughes and slapped the phone from her hand, pushed her against a counter and threw her to the ground. Navlyt and Hughes were able to call the police a few minutes later. Respondent fled before the police arrived.

7. On June 12, 2007, the McLean County Stateís Attorney filed an information charging Respondent with two counts of misdemeanor battery on the basis of the above-described incident, in a matter docketed as People v. Jeffrey T. Abbott, No. 2007 CM 1207, in the Circuit Court for McLean County, Illinois. Count One alleged that Respondent caused bodily harm to Hughes, in violation of 720 ILCS 5/12-3(a)(1). Count Two alleged that Respondent made physical contact of an insulting or provoking nature with Navlyt, in violation of 720 ILCS 5/12-3(a)(2).

8. On January 4, 2008, Respondent pled guilty to Count Two of the information in case number 2007 CM 1207. The court sentenced Respondent to a 12-month term of conditional discharge, assessed a fine and costs totaling $1,117.41, and ordered him to complete 40 hours of community service. Count One was dismissed.

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

a. committing a criminal act, battery of Nicholas Navlyt, in violation of 720 ILCS 5/12-3(a)(2), that reflects adversely on the lawyerís 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 (1990).

COUNT III
(Failure to report conviction)

10. The Administrator realleges paragraphs seven and eight of Count II, above.

11. At all times alleged in this complaint, Illinois Supreme Court Rule 761(a) required that an attorney admitted in this State who is convicted in any court of a felony or misdemeanor notify the Administrator of the conviction in writing with 30 days of the entry of the judgment of conviction.

12. Pursuant to Rule 761(a), Respondent was required to notify the Administrator of his misdemeanor conviction set forth in Count II, above, on or before February 3, 2008.

13. As of July 20, 2011, Respondent had not notified the Administrator of his conviction in case number 2007 CM 1207 as required by Rule 761(a).

14. On July 20, 2011, in the course of the Administratorís investigation of the matters set forth in Count IV, below, the Administrator learned of the conviction.

15. As a result of the conduct described above, Respondent has engaged in the following misconduct:

a. failing to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction, in violation of Supreme Court Rule 761(a).

COUNT IV
(Criminal conduct Ė disorderly conduct)

16. On the evening of June 5, 2011, while at his home, Respondent became intoxicated. Marianna Gavlick ("Gavlick") and Karen Fischer ("Fischer"), who were Respondentís neighbors to the rear of his property, were outside cooking on Gavlickís patio, along with their children and other friends. Without provocation, Respondent, while standing at his door or window or in his yard, began to verbally harass and threaten Gavlick and Fischer and others. Respondent called Gavlick a "fucking idiot" and "dumb bitch," yelled other epithets, made obscene gestures toward them, and made shooting gestures in the direction of the children. Respondent bragged that he was a lawyer.

17. Gavlick called the police as a result of Respondentís above-described behavior. Normal police officers Kevin Ryan ("Officer Ryan") and Stephen Koscielak ("Officer Koscielak") responded. The officers arrived at the front of Respondentís home and Respondent, who was in his back yard continuing to harass Gavlick and others, did not notice their arrival. Respondent knowingly acted in such unreasonable manner as to alarm or disturb Gavlick and to provoke a breach of the peace, in that he threatened to "hurt her real bad" and stepped in her direction. Officers Ryan and Koscielak witnessed the threatening words and gesture and placed Respondent under arrest.

18. Officer Ryan transported Respondent to the McLean County Jail in his patrol car. During the ride, Respondent repeatedly called the officer a "fucking idiot." Respondent also told the officer: "Iím a lawyer. Remember that. I dare you," "Wait till I get done with you," "Iíll be a judge and you wonít," "Iím a fucking lawyer that actually will fucking kick your ass. No, I will. Ask Judge Robb. Ask Justice Knecht," "Donít make me call you into court. Donít. Because I will."

19. On August 1, 2011, the McLean County Stateís Attorney filed an information charging Respondent with one count of misdemeanor assault, in violation of 720 ILCS 5/12-1(a), and one count of disorderly conduct, also a misdemeanor, in violation of 720 ILCS 5/26-1(a)(1), in a matter docketed as People v. Jeffrey T. Abbott, No. 2011 CM 1128, in the Circuit Court for McLean County, Illinois. Both counts were based specifically upon Respondentís threat to Gavlick to hurt her.

20. On September 14, 2011, Respondent pled guilty to the charge of disorderly conduct in case number 2011 CM 1128. The court sentenced Respondent to a 24-month term of conditional discharge, assessed a fine of $300 plus costs, and ordered him to complete 30 hours of community service. The assault charge was dismissed.

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

a. committing a criminal act, disorderly conduct, in violation of 720 ILCS 5/26-1(a)(1), that reflects adversely on the lawyerís honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct (2010).

COUNT V
(False bankruptcy pleadings)

22. Beginning in 2006 and continuing through the present date, Respondent was employed by the law firm of Ostling and Associates, Ltd., where he concentrated in consumer bankruptcy law. Attorney Lars Eric Ostling ("Ostling") was at all times the owner of Ostling and Associates.

23. On April 21, 2009, Patrick D. Killian ("Killian") contacted Ostling for assistance in attempting to resolve his credit card and loan indebtedness without filing a bankruptcy proceeding. Ostling agreed to represent Killian in efforts to reduce and settle the creditorsí claims through negotiations. Killian would obtain funds to pay the creditors from the proceeds of a pending sale of real estate that he owned. Ostling and Killian agreed that Ostling would hold a portion of the sale proceeds in trust for Killian for the purpose of paying the settlements.

24. On April 29, 2009, Killian completed the real estate sale and received proceeds in the amount of $60,526.55.

25. On July 20, 2009, Killian gave $25,000 of the sale proceeds to Ostling for the purpose of funding settlements with Killianís creditors or such other purposes as Killian might direct. Ostling deposited the funds into the Ostling and Associates client trust account at USBank.

26. On April 28, 2010, Ostling paid $9,000 of Killianís trust funds to FIA Card Services in settlement of one of Killianís debts. On September 24, 2010, Ostling paid $1,131 of Killianís trust funds to Ostling and Associates, for attorney fees and costs in connection with the firmís representation of Killian in a collection lawsuit that Freestar Bank had filed against him.

27. In January, 2011, Ostling assigned Respondent to represent Killian in a Chapter 13 bankruptcy proceeding. On January 11, 2011, Ostling paid $1,274 of Killianís trust funds to Ostling and Associates for attorney fees and filing costs to commence the bankruptcy case ($774) and for additional attorney fees in the Freestar Bank lawsuit ($500).

28. As of January 12, 2011, Killianís unsecured creditors included Citi/Amex with a claim in the amount of $10,309.62, and Barclaycard with a claim in the amount of $750. Killian and Respondent agreed that Killian would pay those balances before commencing the bankruptcy case because Killianís wife, Pamela Killian ("Pamela"), used those credit cards for her business.

29. On January 12, 2011, Respondent directed that $11,000 of Killianís trust funds be paid to Pamela for the purpose of enabling her to pay the above-mentioned Citi/Amex and Barclaycard balances in full. Pursuant to Respondentís authorization, Pamela received a check drawn on the Ostling and Associates client trust account in the amount of $11,000 that consisted of Killianís funds. Pamela subsequently used those funds to pay Citi/Amex and Barclaycard.

30. Respondent knew that Killian had sold property in April, 2009, and he knew that Killianís funds held in the Ostling and Associates client trust account were the proceeds of that sale. After January 12, 2011, Killian possessed a balance of at least $2,595 in the law firmís client trust account. Respondent knew that a balance belonging to Killian remained in the account at that time, and he knew that the balance was $2,595.

31. On January 14, 2011, Respondent filed a Chapter 13 bankruptcy petition for Killian. The matter was docketed as Patrick Dennis Killian, Debtor, case no. 11-70090, in the United States Bankruptcy Court for the Central District of Illinois, Springfield Division.

32. On January 27, 2011, Respondent filed a Statement of Financial Affairs ("SOFA") and Schedules A through J in Killianís bankruptcy case.

33. In the SOFA that Respondent filed, question three required a list of all payments in excess of $600 that were made on Killianís debts within the 90 days immediately preceding the commencement of the bankruptcy case. Respondent answered, "None."

34. Also in the SOFA, question ten required a list of all property that Killian had transferred within two years immediately preceding the commencement of the bankruptcy case. Respondent answered, "None."

35. Respondentís representation in the SOFA that there had been no payments in excess of $600 on any of Killianís debts within the 90 days immediately preceding the filing of the bankruptcy case was false. Respondent knew that the representation was false because two days before he filed the case, he had directed the payment of $11,000 of Killianís funds from the Ostling and Associates client trust account to Pamela Killian, knowing that Pamela would use the funds to pay two of Killianís creditors.

36. Respondentís representation in the SOFA that Killian had transferred no property within two years preceding the filing of the bankruptcy case was false. Respondent knew that the representation was false because two days before he filed the case, he had directed the payment of $11,000 of Killianís funds from the Ostling and Associates client trust account to Pamela Killian, and because he knew that Killianís funds in the account were the proceeds of Killianís sale of real estate less than 21 months earlier, in April, 2009.

37. In the Schedule B that Respondent filed, item one required a list of all cash held by Killian, or held for Killian by someone else. Respondent answered, "None."

38. Also in the Schedule B, item two required a list of all financial accounts held by Killian, or held for Killian by someone else, and their values. In his answer to item two, Respondent listed a checking account with a balance of $256.29 and two savings accounts with balances of $119.27 and $456.41 that Killian possessed. Respondent did not disclose that Ostling and Associates held funds belonging to Killian in its client trust account.

39. Respondentís representations in the Schedule B that no one else held cash for Killian, and that one checking account and two savings accounts were all of Killianís financial accounts, were false. Respondent knew that the representations were false because he knew that his law firm held at least $2,595 that belonged to Killian in its client trust account.

40. In or about April, 2011, attorneys for some of Killianís creditors, including attorneys Dawn L. Wall ("Wall") and Joseph Dehn ("Dehn"), learned that Killian had made a conveyance of real estate in April, 2009, and that Ostling had been representing Killian at the time of the conveyance. However, Wall and Dehn had no knowledge of the purchase price that Killian received or Killianís disposition of the proceeds.

41. Beginning in April, 2011, Wall communicated with attorneys of Ostling and Associates in attempts to schedule Killian to appear for a deposition pursuant to Rule 2004 of the Rules of Bankruptcy Procedure. On August 26, 2011, Wall filed a motion requesting that the bankruptcy court order Killian to appear for a deposition. On September 14, 2011, an attorney for Ostling and Associates filed an objection to the deposition. On September 28, 2011, the Honorable Mary P. Gorman entered an order that granted Wallís motion and directed Killian to give a deposition within 30 days.

42. On October 25, 2011, Killian appeared for a deposition at which attorneys for the creditors in case no. 11-70090 questioned him in relation to his conveyance of real estate in April, 2009, and his disposition of the sale proceeds. Killian disclosed that he had received approximately $60,000 from the sale, and that he had entrusted some of the proceeds to Ostling.

43. At no time before Killianís deposition on October 25, 2011, did Killian, Respondent, any attorney of Ostling and Associates, or any person on Killianís behalf disclose to Killianís creditors in case no. 11-70090 or their attorneys, or to the bankruptcy court or the Chapter 13 trustee, that Killian had received $60,000 from his sale of real estate in April, 2009, or that a portion of the sale proceeds had been entrusted to Ostling.

44. Between October 25, 2011, and January 24, 2012, Wall requested that Ostling and Associates furnish an accounting of the funds that Killian had entrusted to the law firm. As of January 24, 2012, neither Respondent nor any attorney of Ostling and Associates produced the accounting.

45. On January 24, 2012, Judge Gorman ordered Ostling and Associates to produce a complete accounting of Killianís funds on or before February 24, 2012.

46. On February 24, 2012, an attorney of Ostling and Associates filed an accounting of Killianís funds. The accounting revealed that the law firm had received and deposited into its client trust account $25,000 for Killian on July 20, 2009, made disbursements of the funds as described in paragraphs 25 through 29, above, and held a balance of $2,595 for Killian since January 12, 2011.

47. At no time before the filing of the Ostling and Associates accounting on February 24, 2012, did Killian, Respondent, any attorney of Ostling and Associates, or any person on Killianís behalf disclose to Killianís creditors in case no. 11-70090 or their attorneys, or to the bankruptcy court or the Chapter 13 trustee, that $11,000 of Killianís funds had been given to Pamela Killian on January 12, 2011, two days before the commencement of the bankruptcy case; or that Ostling and Associates held $2,595 belonging to Killian in its client trust account.

48. On February 27, 2012, Respondent filed an amended SOFA and an amended Schedule B in case no. 11-70090. In the amended pleadings, Respondent disclosed Killianís sale of real estate on April 29, 2009, that Killian had given $11,000 to Pamela Killian that she used to pay creditors, and that Ostling and Associates held $2,595 for Killian.

49. At no time before February 27, 2012, did Respondent correct the false statements that he had made in the original SOFA and original Schedule B that he had filed for Killian on January 27, 2011.

50. On April 4, 2012, Judge Gorman entered an order that directed Killian and Respondent to appear on April 24, 2012, and each show cause why he should not be sanctioned. In the order, Judge Gorman wrote:

"The reason for the hearing and proposed sanctions is the failure of the Debtor and Attorney Abbott to disclose on the Schedules and Statement of Financial Affairs filed in this case on January 27, 2011, a sale of real estate by the Debtor which had occurred within two years of the filing, a transfer of $11,000 to the Debtorís spouse several days before the filing, and the existence of $2595 held for the Debtor in the Ostling & Associates trust account on the date of filing."

51. On April 24, 2012, following a hearing, Judge Gorman entered an order for sanctions against Killian that converted the proceeding from Chapter 13 to Chapter 7.

52. Judge Gorman at the same time entered an order for sanctions against Respondent that suspended his electronic filing privileges in the bankruptcy court immediately and until December 31, 2012. In the order, Judge Gorman provided that Respondent could request reinstatement of his filing privileges on or after January 2, 2013, if he completed at least three hours of continuing legal education in basic consumer bankruptcy and three hours in legal ethics and professional responsibility.

53. Killian appealed the order for conversion of his case to Chapter 7 to the district court. On October 1, 2013, the Honorable Richard Mills filed an opinion that affirmed the decision of Judge Gorman. Killian v. Germeraad et al., No. 12-3156 (C.D.Ill., September 27, 2013). In the opinion, Judge Mills found that "there is clear and convincing evidence of bad faith on the part of the Appellant (Killian) and his Counsel (Abbott) in the concealment of assets." Killian v. Germeraad, id., p. 25.

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

      1. knowingly making a false statement of fact or law to a tribunal, by filing a SOFA and Schedule B that contained false information, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);
      2. knowingly failing to correct a false statement of material fact or law previously made to the tribunal, by failing for over one year to file an amended SOFA and an amended Schedule B, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);
      3. conduct involving dishonesty, fraud, deceit, or misrepresentation, by filing bankruptcy pleadings that contained false information, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct 2010; and
      4. conduct which is prejudicial to the administration of justice, by filing bankruptcy pleadings that contained false information, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct 2010.

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.

Gary S. Rapaport
Illinois Attorney Registration and
Disciplinary Commission
3161 West White Oaks Drive, Suite 301
Springfield, IL 62704
Telephone: (217) 546-3523

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Counsel for the Administrator