BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

DONALD FREDRICK FRANZ,

Attorney-Respondent,

No. 6216090.

Commission No. 2014PR00161

 

 

SECOND AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Scott Renfroe, pursuant to Supreme Court Rule 753(b), complains of Respondent Donald Fredrick Franz ("Respondent"), who was licensed to practice law in Illinois on November 4, 1993, and alleges that Respondent has engaged in the following conduct which subjects him to discipline pursuant to Supreme Court Rule 770:

COUNT I
(Improper business transaction with Rex Nzeribe)

1. On or about September 15, 2010, Sarah Nzeribe ("Sarah") filed a petition for dissolution of her marriage to Rex Nzeribe ("Nzeribe"), in the Circuit Court of McHenry County, Illinois, entitled In re: The Marriage of Sarah Nzeribe, Petitioner, and Rex Nzeribe, Respondent. The case was docketed as matter number 10 DV 993.

2. In or about March 2011, Respondent and Nzeribe agreed that Respondent would represent Nzeribe in connection with the dissolution of marriage matter. There was no written retainer agreement between Respondent and Nzeribe. Nzeribe paid Respondent when Respondent asked for legal fees or submitted billing statements to Nzeribe.

3. Between March 2011 and May 2012, Respondent continued to represent Nzeribe in matters relating to his dissolution of marriage. Nzeribe paid Respondent about $4,450 in legal fees and/or costs during that time period.

4. On or shortly before May 10, 2012, Nzeribe determined that he could no longer have a working relationship with Respondent, and advised Respondent that he wished to terminate Respondent's representation.

5. On or about May 10, 2012, Respondent served Nzeribe with a notice of motion stating that on May 16, 2012, Respondent would appear before the court and "then and there move for immediate leave to withdraw as counsel for [Nzeribe]." Nzeribe received the notice of motion on or about May 12, 2012. The motion was set to be heard on May 16, 2012, a date on which several other motions were also set to be heard by the court in case number 10 DV 993, including a motion to compel Nzeribe's deposition.

6. On May 16, 2012, Respondent and Nzeribe appeared in court for the hearing on Sarah's motion to compel Nzeribe's deposition and Respondent's motion to withdraw. The purported bases for Respondent's motion were that Respondent was not receiving the necessary cooperation from Nzeribe, that differences had arisen between Respondent and Nzeribe, and that Nzeribe had failed to pay Respondent's fees and expenses. While Nzeribe disagreed with Respondent's claim that Nzeribe had not cooperated with Respondent or paid Respondent's attorney's fees and expenses, Nzeribe did not object to the motion because he no longer wanted Respondent to represent him in the dissolution of marriage case.

7. On May 16, 2012, the court denied Respondent's motion to withdraw because the case had already been set for trial commencing on May 21, 2012. The court further ordered Nzeribe to appear at the law offices of Sarah's counsel for his deposition on that same day at 1:30 p.m.

8. After the court denied Respondent's motion for leave to withdraw as Nzeribe's counsel and ordered Nzeribe to appear at the law offices of Sarah's counsel for his deposition on that same day, Respondent asked Nzeribe to pay him $10,000 in additional legal fees. Nzeribe refused. Respondent advised Nzeribe that he would not represent him at the deposition later that day unless he signed a Promissory Note requiring Nzeribe to pay Respondent $10,000 in installments over the next four years. Nzeribe agreed to sign a Promissory Note, because he believed that he had no alternative, if he wanted representation at the deposition and at the trial, which was set to begin on May 21, 2012.

9. Sometime after the May 16, 2012 court appearance and before May 23, 2012, Respondent prepared a Promissory Note ("the Note"). The Note purported to require that Nzeribe, the purported borrower, pay Respondent, the purported lender, the sum of $10,000, together with interest thereon at the rate of four percent per annum. Pursuant to the terms of the Note, Nzeribe was to pay Respondent $250 per month starting on July 15, 2012. At the time Respondent prepared the Note, Nzeribe did not owe $10,000 to Respondent.

10. On May 21, 2012, the date the trial in case number 10DV993 was set to begin, Nzeribe was present in court, but Respondent did not to appear and the court continued the trial to May 22, 2012.

11. The trial in case number 10DV993 began on May 22, 2012, and concluded on May 24, 2012, after three afternoon sessions.

12. On or about May 23, 2012, at court, and prior to the commencement of the trial proceedings that day, Respondent presented Nzeribe with the Note and asked him to sign it. Respondent told Nzeribe that if he did not sign the Note, Respondent would not continue to represent him. Nzeribe believed that he had no alternative but to sign the Note if he wanted representation at the trial, so he signed the Note.

13. At no time before Nzeribe signed the Promissory Note did Respondent disclose to Nzeribe the risks associated with Respondent's dual role as both legal advisor and participant in the transaction, or obtain Nzeribe's informed consent to that transaction.

14. When asking Nzeribe to sign the Note, Respondent did not advise Nzeribe that he was entitled to seek independent counsel or give Nzeribe a reasonable opportunity to do so. Further, Respondent did not advise Nzeribe that, as his attorney, he was prohibited from entering into a business transaction with Nzeribe, since Respondent's interests might be conflicting with Nzeribe's, unless Nzeribe was made aware in writing of the transaction and its terms, and expressly consented in writing after disclosure, with the consent to recite the essential terms of the transaction and Respondent's role.

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

  1. representing a client when the representation of that client may be materially limited by his own interests, by having Nzeribe sign a Promissory Note wherein Nzeribe was the borrower and Respondent was the lender, while representing Nzeribe in a matter, in violation of Rule 1.7(a)(2) of the Illinois Rules of Professional Conduct (2010); and

  2. entering into a business transaction with a client (the Promissory Note), without explaining in writing to the client the possible conflicting interests and that the client was entitled to seek the advice of independent counsel, and without obtaining the written consent of the client, in violation of Rule 1.8(a) of the Illinois Rules of Professional Conduct (2010).

COUNT II
(Failure to reduce contingent agreement to writing, abusive behavior)

16. In October 2014, Respondent and Mike Rutkowski ("Rutkowski") agreed that Respondent would represent Rutkowski in matters relating to Rutkowski's efforts to reduce the assessed value of real property he had recently purchased. Respondent had never represented Rutkowski in any previous matter.

17. Respondent and Rutkowski agreed that Respondent's receipt of a fee would be contingent on obtaining a reduction of the property's assessed valuation, and that the fee would be one-third of one year's tax savings. Respondent never reduced that contingent fee agreement to writing. After his meeting with Rutkowski, Respondent sought a reduction of Rutkowski's property tax obligation with both the McHenry County assessor's office and the local Board of Review.

18. On March 5, 2015, Respondent notified Rutkowski that the McHenry County Board of Review had reversed the county assessor's decision not to modify the assessed value of Rutkowski's property, and that the Board of Review had decided to reduce the assessed value of that property from $71,739 to $70,000. Respondent also sent Rutkowski a bill for $400 in fees for handling the matter, which Rutkowski received shortly thereafter. That bill did not explain the method, if any, by which Respondent had calculated his claimed fee of $400.

19. As of March 13, 2015, Respondent considered his representation of Rutkowski to have concluded, and for the balance of the events set forth in this count of the complaint, Respondent considered himself to be acting pro se in efforts to resolve a perceived fee dispute with Rutkowski. Rutkowski, though, reasonably considered Respondent to be his attorney, in that matters relating to the representation, including the extent of his admitted obligation to pay Respondent a fee, had yet to be resolved.

20. On March 13, 2015, Rutkowski contacted Respondent to ask him to explain the basis for Respondent's claimed $400 fee, which Rutkowski considered to be inconsistent with the contingent fee he believed he had agreed to pay. Over the next several days, Respondent sent Rutkowski a series of e-mail and text messages that: stated that Respondent had unilaterally raised the claimed fee, first to $500 and then to $600; threatened to sue Rutkowski to collect the claimed fee; insulted Rutkowsky's manhood and choice of automobiles; and referred to Rutkowski as a "small penis asshole." [sic]

21. Respondent's e-mail and text messages to Rutkowski never explained the basis for Respondent's claimed fee, or the method of its calculation, other than to say that fee agreements were not required "in these matters and not between men. My mistake, there is only one man involved between us. I challenge you to a duel, you pick the time, place and manner."

22. Respondent's messages to Rutkowski, which he sent while he considered himself to be proceeding pro se in a fee dispute with Rutkowski, had no substantial purpose other than to embarrass or burden Rutkowski.

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

  1. failed to promptly comply with Rutkowski's reasonable requests for information, on and after March 13, 2015, concerning the basis for Respondent's fee demands of $400, $500 and then $600, by sending belittling, threatening or malicious texts and e-mails rather than factual responses to those inquiries, in violation of Rule 1.4(c) of the Illinois Rules of Professional Conduct;

  2. failed to reduce his oral agreement to represent Rutkowski on a contingent fee basis to writing, in violation of Rule 1.5(c) of the Illinois Rules of Professional Conduct; and

  3. used means that had no substantial purpose other than to embarrass, delay or burden Rutkowski, by sending a series of belittling, threatening or malicious texts and e-mails, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct.

COUNT III
(Harassment and Threats)

24. During the events described in this count of the complaint, there was a statute in effect in Illinois, 720 ILCS 5/26.5-2(a)(2) ("Harassment by telephone") that made it a crime to make a telephone call, whether or not conversation ensued, with the intent to abuse, threaten or harass the person at the called number.

25. During the events described in this count of the complaint, there was a separate statute in effect in Illinois, 720 ILCS 5/26.5-3(a)(5) ("Harassment through electronic communications") that made it a crime to use electronic communications to threaten injury to the person or property of the person to whom the communication was directed.

26. At 7:39 p.m. on Wednesday evening, July 8, 2015, Respondent, with the intent to abuse, threaten of harass counsel for the Administrator, called a telephone number he knew to belong to counsel and left the following message:

My dearest Scott Renfroe, this is attorney Don Franz, 6216090.1 I understand that we have pre-trial coming in August. Here are my terms for your surrender: "Nuts"2 You will apologize to me for wasting my time, end this or you will not make an example of me, I will make an example of you and your filthy ARDC organization, which is a criminal conspiracy to drive lawyers out of me [sic], out of business to try to fund the thousands of lawyers that can't find jobs, you filthy, failure of a lawyer, who cannot get a job, that's why you work for that God damn disgusting organization. This will not end (garbled), you cost me money, you cost me time, you cost me sleep, oh no. And Scottie boy, I'm gonna, this will not end pretty for you, for me, anyone, drop this now, you filthy coward, you are a coward, you only work for the ARDC because you're a coward. Hey save this, play it for the rest of your ARDC cowards, up and down the line, I don't care. I despise you. I despise you. Have a nice night.

1Respondent's ARDC registration number
2 See: https://army.mil/article/92856

27. Twelve minutes after leaving the first message (i.e., at 7:51 p.m.), Respondent, with the intent to abuse, threaten or harass counsel for the Administrator, called a telephone number he knew to belong to counsel and left the following message:

By the way, this is a fact, not a threat. When I get cancer, you will be the first to know about it.

28. At 9:46 p.m. on Wednesday, August 5, 2015, Respondent, with the intent to abuse, threaten or harass counsel for the Administrator, called a telephone number he knew to belong to counsel and left the following message: "When I get cancer, I am going to kill you with my bare hands."

29. On Wednesday, January 6, 2016, at 11:59 p.m., Respondent sent counsel for the Administrator an electronic communication with the intent to threaten injury to counsel. In that message, Respondent addresses counsel as "My Dearest Fuhrer Scott," and, picking up on his previous references to cancer (which were explicitly linked to his threat to kill counsel for the Administrator) wrote: "I just noticed something on my neck, could be cancer, I hope so. (wink!)" Respondent concluded the message by writing:

I shall never forget the kindness you and your filthy government comrades have shown me in these matters. "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Some lawyer that was not a member of the Illinois National Socialist Attorney Registration Discipline and Committee that hung with John Adams. Tell me Scott, is that or is it not, a "civil quote? How about this one "to the last I grapple with thee; from hell's heart I stab at thee; for hate's sake I spit my last breath at thee." Another private sector wacko free to continue in is [sic] trade without having to answer to you or your ilk.

No respect intended or implied, ever

Donald F. Franz, Attorney at Law (formally proud of that title until dealing with you)

30. Hours after sending the electronic communication referred to above in paragraph six, above in the early morning of January 7, 2016, Respondent, with the intent to abuse, threaten or harass the former client referred to in Count II of this complaint, left the following telephone voicemail message for his former client:

Hello Viper Mike, this in Donald Franz. I hope you had a Happy New Year, I will see you soon, you won't see it, you'll get it. Good bye, Donald Franz (phone number redacted), thinking of you always Viper Mike, good bye.

31. On Friday, January 8, 2016, at 7:36 p.m., Respondent, with the intent to threaten injury to counsel for the Administrator, sent an electronic communication to counsel that stated, in part: "Do you know the difference between my office and yours? Metal detectors. Mine has none. What are you hiding from, Scott?"

32. At 3:08 a.m. on September 14, 2016, Respondent, with the intent to abuse, threaten or harass the Administrator, called a telephone number he knew to belong to the Administrator and left the following message:

Jerry Larkin, my name is Don Franz, I'm the attorney you are trying to murder because of an installment note, so the day you suspend me, I'm going to stop taking my pills, I'm going to get my affairs in order, I am going to kill you. Have a nice day.

33. At 10:15 p.m. on September 15, 2016, Respondent, with the intent to abuse, threaten or harass counsel for the Administrator, called a telephone number he knew to belong to counsel and left the following message:

Scotty boy, your friend Don Franz. You might be familiar with my name, Scott Renfroe, I never signed a formal paycheck, and by the way, we have gone up in scale, so this is what I'm going to do. The day you suspend me, when I take my pills and get my affairs in order and I'm going to take care of you. I want to meet you for a nice discussion and how things are going. By the way, this is "Don Franz Unbound", there are two things at my life, because I (sic) no hair and anything, which restrict me from dealing with you, Mr. Larkin and the rest you fascist communist speech controlling assholes. By the way Scott, I play for keeps.

34. At 10:41 p.m. on September 15, 2016, Respondent, with the intent to abuse, threaten or harass counsel for the Administrator, called a telephone number he knew to belong to counsel and left the following message:

My dearest dearest Scott, with the world's wimpiest handshake, so I'm kinda given to turn in to properly filed fee petition for $206,000, that's okay, but Don Franz has a summon note for less than 10. Don Franz the criminal, I'm going to have so much fun with you and your fucking filthy, your filthy, filthy friends, you don't know what's coming. And by the way, a major control in my life is about to be released and it's called "Don Franz Unbound." I have no fear of you, or you, or Mr. Larkin or the rest you scumbags. You have run roughshod to long, too far and your day is coming.

35. At 1:44 a.m. on September 16, 2016, Respondent, with the intent to abuse, threaten or harass the Administrator, called a telephone number he knew to belong to the Administrator and left the following message:

Mr. Larkin, Don Franz again, I watched your website and the fact you have no malpractice insurance but you don't have to, the State provides everything, and it kinda, you never signed the front of a paycheck before, however, since your organization has decided to try to murder me, murder by means, suspending my license so I cannot trade my time for pills in your life. The day you suspend me, I'm going to attack you and Scott, whoever I can get my hands, and you guys started this, I'm going to finish it. I have never set over, a promissory note in, I'm trying to get paid, trying to get paid for my services, which are always reasonable. You filthy bastards started this fight, I'm going to finish it. And by the way, I had a certain change in my family situation; I have nothing, nothing, but my dog, to bind me to this planet. Other than your destruction. You are filthy, filthy bastards, you wouldn't know a Court if it hit you in the ass. You despicable prick, your whole life at the ARDC, you fuckin' Nazi fascist, you bastard, you started this fight, I'm going to finish it. Your noting but bullies, you attack solo practitioners, you think it's cute, I'm going to destroy you, I hate you, I hate you so much, your fuckin', your Hitler to me, your Hitler. Oh and by the way, servility, speech control. A lawyer I respect greatly, greatly admitted that to me. If it's speech control today, what's next Jerry, and your lifelong dream, by the way in the worst corrupt state, you fucker, you're a fuckin' dead man!

36. Eleven minutes after leaving the message for the Administrator referred to above, i.e., at 1:55 a.m. on September 16, 2016, Respondent, with the intent to abuse, threaten and harass counsel for the Administrator, called a telephone number he knew to belong to counsel and left the following message:

Scott, Don, I forgot to tell you this, a nice thing about being a Franz, other than we tell the truth, not like you, except, if you are successful in murdering me, which that is your intention, I have family, keep in mind, tell you another thing, your name and Mr. Larkin's name, and you fuck with the deepest part of my family. If I do not get you, my family will. You fucked with the wrong person, I did nothing wrong. I had so much time, so I note, I tried to get paid for the heap, and you fuckin' tried, you tried to murder me, well no one fucks with a Franz, buddy.

37. Sixteen minutes after leaving the voicemail message for counsel for the Administrator referred to above, at 2:11 a.m. on September 16, 2016, Respondent, with the intent to abuse, threaten and harass the Administrator, called a telephone number he knew to belong to the Administrator and left the following message:

Jerry, Franz, final offer. You dismiss all charges against me, you apologize publically for suspending me, and you exempt all sole practitioners from CLE's, and tend to your own fuckin' job, that's my final offer take it or leave it, and it's not getting better.

38. Ten minutes after leaving the voicemail message for counsel for the Administrator referred to above, at 2:21 a.m. on September 16, 2016, Respondent, with the intent to abuse, threaten and harass the Administrator, called a telephone number he knew to belong to the Administrator and left the following message:

Jerry, Don Franz again. I apologize. I typed in total pussy and your name came up. Golly. Any who, so you're telling me if you murder me, throw me in jail, filing charges, I don't care. My family is going to destroy you. Punching you like a fucking dog. You and Scott, the rest of you. You never, you started this fight for installment notes. You started this fight. No one fucks with a Franz, you started this fight, we are going to finish it and I'm not alone. By the way, I'm the biggest pussy in my family, when you fuck the rest of us, you are in for a real big war, I love the fact that all I do is, I typed in wimp, your name came up. You and Scott should date.

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

  1. committed multiple criminal acts that reflect adversely on his fitness to practice law, by virtue of his violation of sections 720 ILCS 5/26.5-2(a)(2) ("Harassment by telephone") and 720 ILCS 5/26.5-3(a)(5) ("Harassment through electronic communications") of the Illinois Criminal Code, by making the telephone calls set forth above with the intent to abuse, threaten or harass the person at the called number, and using electronic communications to threaten injury to the person or property of the person to whom the communications listed above were directed, in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct (2010); and

  2. engaging in conduct that is prejudicial to the administration of justice, by threatening to kill the Administrator and his counsel, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

WHEREFORE, the Administrator respectfully 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.

Scott Renfroe
Counsel for Administrator
One Prudential Plaza
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Facsimile: (312) 565-2320
E-mail: srenfroe@iardc.org

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Scott Renfroe