Statement of Charges Allowed by the Illinois Supreme Court
and Imposing Discipline on Consent
Allowed January 12, 2018
IN THE SUPREME COURT OF ILLINOIS
In the Matter of:
Supreme Court No. M.R.29103
Commission No. 2017PR00077
STATEMENT OF CHARGES
SUPREME COURT RULE 762(a)
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Marcia Topper Wolf, pursuant to Supreme Court Rule 762(a), states that on the date Mary Katherine Burgess (hereinafter "Movant") filed a motion requesting her name be stricken from the Roll of Attorneys, the Administrator was investigating allegations that Movant converted at least $32,849.34 in client funds. Had Movant's conduct been the subject of a hearing, the Administrator would have introduced the evidence described below, and that evidence would have clearly and convincingly established the misconduct set forth below:
I. FACTUAL BASIS
Movant's admissions, bank records, and the testimony of various individuals, would establish the following facts:
Conversion of Funds Belonging to the Heirs of Mary Johnson
1. Attorney Harold Saalfeld ("Saalfeld") represented Wayne Johnson, Sr. and Mary Johnson in a personal injury matter related to injuries Mr. Johnson in 1997. Mr. Johnson later died, and Saalfeld obtained an $80,000 settlement in July, 2009, shortly before Mrs. Johnson died. After deductions of attorney's fees and costs due to Saalfeld, the amount remaining and due to Mary Johnson's estate was $34,064.55 ("Johnson settlement funds").
2. Saafield had previously represented several members of the Johnson family and determined that there may have been a potential conflict in his maintaining funds intended for Mrs. Johnson's estate. He requested that Melinda Johnson, Mary Johnson's daughter and executor of her estate, obtain counsel for the purpose of holding the Johnson settlement funds until a determination regarding distribution of the Johnson settlement funds could be made.
3. On or about August 21, 2012, Melinda Johnson and Movant agreed that Movant would receive, maintain and distribute the Johnson settlement funds pending a distribution decision by Mary Johnson's heirs or by a probate court. Movant did not request a fee for providing the service of receipt and maintenance of the Johnson settlement funds, nor did Movant and Melinda Johnson enter into any fee agreement. Neither Melinda Johnson or Saalfeld asked Movant to provide, nor did she provide, any other legal service to Melinda Johnson or to the estate of Mary Johnson.
4. On or about August 21, 2012, Saalfield sent to Movant his check number 5273, made payable to Movant and Melinda Johnson in the amount of $34,064.55. On October 9, 2012, Movant deposited Saalfield's check number 5273 into her Northern Bank and Trust IOLTA account ending in the four digits 0491, which was entitled "M Katherine Burgess Offices of M Katherine Burgess IOLTA Trust Account" ("Movant's IOLTA account").
5. As of May 24, 2015, Movant should have been holding the Johnson settlement funds in the amount of $34,064.55 on behalf of the estate. On May 24, 2015, the balance of Movant's IOLTA account fell to$1,215.21, so Movant had used $32,849.34 of the Johnson settlement funds for her own business or personal purposes, without authority. Movant's use of those funds constitutes conversion.
6. Prior to May 24, 2015, Saalfeld wrote to Movant to request confirmation that she was holding the Johnson settlement funds. On May 24, 2015, Movant sent an email to Saalfeld stating, in part, "I do have the money in my trust account. Melissa asked me to hold it while things were settled for the 10th time with Wayne."
7. Movant's statement to Saalfeld was false. As of May 24, 2015, the balance of Movant's IOLTA account was $1,215.21, as she had already used most of the Johnson settlement funds for her own business or personal purposes. At the time Movant sent her email statement to Saalfeld, Movant knew that her statement that she had the money in her IOLTA account was false because she knew she had used the Settlement Funds for her own business or personal purposes, without authority.
CONCLUSIONS OF MISCONDUCT
8. By reason of the conduct described above, Movant has engaged in the following misconduct:
failure to maintain and appropriately safeguard funds belonging to a client or a third person, by conduct including conversion of the Johnson settlement funds to her own personal or business use, received by Movant to hold on behalf of the Mary Johnson estate, or potential estate, for subsequent distribution as directed by heirs of the estate or a court, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010);
conduct involving dishonesty, fraud, deceit or misrepresentation, by her knowing conversion of least $32,849.34 of the Johnson settlement funds for her own personal or business purposes, thereby converting that property to her own use, and by falsely stating to Saalfeld that she was holding the Johnson settlement funds in her trust account, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).
Marcia Topper Wolf