Filed July 18, 2012
In re Avalon Elan Betts-Gaston
Commission No. 08 CH 5
Synopsis of Review Board Report and Recommendation
The case was before the Review Board on an appeal of a Hearing Board determination recommending disbarment and finding that Betts-Gaston participated in and orchestrated fraudulent schemes. Those schemes resulted in the sale of her clients' homes (without their knowledge) and, ultimately, in the loss of the home and any equity.
Specifically, the Hearing Board found that Betts-Gaston engaged in the following misconduct: overreaching; breach of her fiduciary duty; failing to consult with a client about the objectives of the representation, in violation of Rule 1.2(a); failing to keep a client reasonably informed about the status of her legal matter, in violation of Rule 1.4(a); failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation, in violation of Rule 1.4(b); representing a client when the representation was materially limited by Betts-Gaston's own interests or her obligations to third parties, in violation of Rule 1.7(b); entering into a business transaction with a client without obtaining the client's consent to a conflict of interest after full disclosure, in violation of Rule 1.8(a); committing a criminal act in violation of the Illinois Notary Public Act that reflects adversely on her honesty, trustworthiness, or fitness as a lawyer, in violation of Rule 8.4(a)(3); engaging in conduct involving dishonesty, deceit, fraud, or misrepresentation, in violation of Rule 8.4(a)(4); and engaging in conduct that tends to defeat the administration of justice or to bring the legal profession into disrepute, in violation of Supreme Court Rule 770.
Betts-Gaston raised 32 issues on review, including arguments that counsel for the Administrator engaged in misconduct, the Hearing Board was biased against her, she was denied due process, and the Hearing Board's findings were against the manifest weight of the evidence. Betts-Gaston contended that her misconduct warranted a reprimand, at most.
The Review Board rejected Betts-Gaston's contentions of error and, while it recommended reversal of the findings related to Rule of Professional Conduct 8.4(a)(3) and Supreme Court Rule 770, the Board recommended that Betts-Gaston be disbarred on the basis of the proven violations and due to her egregious misconduct, lack of remorse, and failure to accept responsibility for her misconduct.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
AVALON ?LAN BETTS-GASTON,
Commission No. 08 CH 5
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the exceptions of Respondent-Appellant, Avalon ?lan Betts-Gaston (Respondent), to the Hearing Board's findings of misconduct and recommendation of disbarment.
The allegations of misconduct arise from Respondent's involvement in real estate transactions in which Respondent's clients unknowingly sold their homes to straw buyers as part of programs that purported to help alleviate their debt. In reality, the programs were fraudulent schemes that caused Respondent's clients to lose their homes and all of their equity.
The Administrator filed a six-count complaint against Respondent that alleged overreaching, breach of fiduciary duty, failure to keep clients reasonably informed about the status of their legal matter, engaging in a conflict of interest, fraudulent conduct, committing criminal conduct by violating the Illinois Notary Public Act, and engaging in conduct that tends to prejudice the administration of justice or to bring the courts or the legal profession into disrepute. The Hearing Board found that the Administrator proved all of the charges of misconduct and recommended that Respondent be disbarred.
Respondent raises 32 issues on review. She challenges all of the findings of
misconduct and asserts numerous procedural errors as well discrimination and bias on the part of the Administrator and the Hearing Board. Respondent contends that her conduct warrants a reprimand at most. The Administrator asks us to affirm the Hearing Board's findings and sanction recommendation. We recommend that all but two of the Hearing Board's findings of misconduct be affirmed and that Respondent be disbarred.
The voluminous facts of this case are set forth in detail in the Hearing Board's Report and Recommendation and need not be repeated in their entirety. We summarize those facts relevant to the issues before us.
Respondent received her Illinois license to practice law in 2000. At the time of the misconduct at issue, she was a sole practitioner, an approved title agent for First American Title Insurance Company, and a notary public.
The charges arise from Respondent's involvement with W2X, Inc. (W2X); RYM Technology Holdings (RYM); and In Jesus Christ's Name Investments, Inc. (IJCN). These three businesses targeted individuals who were facing foreclosure and advertised programs that would allow them to live in their homes for varying periods of time without paying their mortgage so they could get out of debt. The businesses used a sale-lease-buyback model in which they engaged straw buyers or "third party investors" (hereinafter "third-party investors") with good credit to obtain loans to purchase the distressed properties. In several instances, the third-party investors' loan applications contained false information about their income and assets. The third-party investors contributed no money toward the purchase of the properties and received compensation for their participation. The programs would then purportedly use the loan proceeds, closing cost credits, and the equity in the properties to pay the mortgage for a certain
period of time. The homeowners/sellers typically had a grace period during which they did not have to make any housing payments. After the grace period ended, they were required to make rent payments for several years, which were sometimes described as "mortgage payments," and then had the option of regaining ownership of the property.
The homeowners/sellers in this matter testified that they did not understand that they were selling their homes. They believed that their property would be placed in trust for several years, their equity would be used to make mortgage payments during that time, and their mortgages would be paid in full by the end of their participation in the programs. Unfortunately, not only were the homeowners/sellers unaware that their homes were being sold, but W2X, RYM, and IJCN took the proceeds of the real estate transactions and failed to make the mortgage, property tax, and insurance payments for the properties in question. All of the properties in this matter were foreclosed upon or sold at tax sales, and several of the homeowners/sellers lost their homes. Respondent represented the homeowner/seller in each of the transactions at issue.
Evidence and Findings as to W2X Inc. (Count I)
Warren Jackson1 was the President of W2X. Between May 2004 and October 2005, W2X referred 11 cases to Respondent. In each case, Respondent acted as the title agent and attorney for the homeowner/seller.
Count I of the Complaint involves Respondent's representation of Helen Hatchett. Hatchett was 74 years old at the time of the hearing, had owned her home for over 40 years, and had approximately $120,000 in equity in it. When she contacted W2X, she owed approximately $16,000 on her mortgage and a home equity loan.
Hatchett decided to enroll in the W2X program and met with Jackson, who told
her that he would put his name on the deed to her property for one year and would transfer the deed back to her after she was able to save some money. Kendra Thomas was the third-party investor in the Hatchett transaction. D'Mona Ross, a loan officer, filled out Thomas's loan application. The loan application falsely stated that Thomas earned $2600 per month at a hair salon and had a bank account with a balance of $31,915.50. In fact, Thomas was a student who worked as a front desk operator at DePaul University, earning $7.50-$8.50 per hour. The bank account identified in the application belonged to Jackson, not Thomas. Thomas did not review the application before she signed it.
Respondent prepared all of the closing documents. Jackson took various documents to Hatchett for her to sign prior to the closing. These included an Illinois Statutory Short Form Power of Attorney, authorizing Respondent to execute closing documents on Hatchett's behalf, and a "Disclosure Statement-Controlled Business Arrangement," indicating that Respondent had a financial interest in the title company and the parties were not required to use Respondent's title services. Although the latter document bore Hatchett's purported signature, Hatchett testified that Respondent never explained it to her and never explained the possibility of a conflict arising as a result of her relationship with W2X or her interest as title agent.
The closing on Hatchett's property took place on October 7, 2005. Respondent never met Hatchett, and Hatchett did not attend the closing. Nonetheless, Respondent notarized Hatchett's purported signature on a warranty deed transferring Hatchett's property to Thomas.
Respondent testified that Jackson brought Hatchett's driver's license to her and that she compared the signature on the driver's license to the signatures on the documents. Respondent believed that this was allowed under the Illinois Notary Public Act. Respondent
certified on the warranty deed, however, that Hatchett personally appeared before her and acknowledged her signature. The Hearing Board found that Respondent's testimony that she verified Hatchett's signature by comparing it to her driver's license was not credible.
Respondent received $1,186 in attorney fees and title fees from the Hatchett closing. At the closing, a check was issued to Hatchett in the amount of $117,959.50. Hatchett testified that she never saw or signed the check, which was deposited in W2X's bank account on October 11, 2005. Hatchett later received a $3000 check from Jackson.
Thomas testified that in October 2005 Jackson gave her a check to pay the mortgage on the Hatchett property and other W2X properties for six months. After the six months ended, Thomas sent Hatchett a letter demanding monthly rent payments. Hatchett testified that she did not know that she had sold her house and never intended to do so. She never made any rent payments to Thomas, and the property went into foreclosure.
Hatchett realized that something was amiss after she received the rent demands from Thomas and sought legal representation. Attorney Michelle A. Weinberg of the Legal Assistance Foundation filed an action to quiet title on Hatchett's behalf against W2X, Warren Jackson, Thomas, Respondent, and others. At the time of Respondent's disciplinary hearing, Thomas still owned the property and Hatchett's lawsuit remained pending.
The Hearing Board found that the Administrator proved all of the charges in Count I, which included the following: overreaching; breach of Respondent's fiduciary duty; failing to consult with a client about the objectives of the representation, in violation of Rule 1.2(a); failing to keep a client reasonably informed about the status of her legal matter, in violation of Rule 1.4(a); failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation, in violation of Rule 1.4(b);
representing a client when the representation was materially limited by Respondent's own interests or her obligations to third parties, in violation of Rule 1.7(b); committing a criminal act in violation of the Illinois Notary Public Act that reflects adversely on Respondent's honesty, trustworthiness, or fitness as a lawyer, in violation of Rule 8.4(a)(3); engaging in conduct involving dishonesty, deceit, fraud, or misrepresentation, in violation of Rule 8.4(a)(4); and engaging in conduct that tends to defeat the administration of justice or to bring the legal profession into disrepute, in violation of Supreme Court Rule 770.
Evidence and Findings Pertaining to RYM (Counts II-IV)
Respondent had a referral relationship with RYM and represented the homeowners/sellers in 22 RYM transactions between May 2004 and August 2005. Respondent's representation of Jacqueline Judge, Leatrice Howard, and Shakeela Muhammad is the subject of Counts II, III, and IV of the Administrator's complaint. Respondent prepared all of the closing documents and provided title services in each transaction. Although her clients signed a disclosure statement-controlled business arrangement form, each testified that Respondent never explained this or any other document to them, nor did she advise them regarding conflicts that could potentially arise as a result of her interest as a title agent or her referral relationship with RYM.
A. Judge Transaction
The closing on Judge's home took place on November 18, 2004. Judge believed that her property was going to be placed in trust while she improved her financial situation and that she would pay rent during that time. When Judge was told about the closing for her property, she asked why a closing was necessary and was told that the purpose of the closing was to record that her property was being placed in trust. Judge testified that she did not read any of
the closing documents that identified her as "Seller." She was not told and did not understand that she was selling her property. Respondent received $1400 for legal and title service fees from the sale of Judge's home.
Despite the fact that Judge signed over to RYM the proceeds of the sale of her home, which totaled $133,635.15, neither RYM nor the third-party investor, Eva Breckenridge, made mortgage payments or paid the 2004 real estate taxes. In 2006, when Judge learned that her property was being sold at a tax sale, she called Respondent. Judge testified that Respondent did not say anything about the real estate transaction but instead prayed over the telephone and told Judge that God would help them through this. At the time of Respondent's hearing, Judge had lost her home and was on the verge of eviction.
B. Howard Transaction
Leatrice Howard testified that she did not understand that she was selling her property. She believed that the equity in her home would be used to pay her mortgage for five years and, at the end of that period of time, the mortgage would be paid and she would get her home back.
Respondent represented Howard at the closing on her property on February 7, 2005. Howard testified that she asked questions during the closing but was told they would be answered later. At one point she asked Respondent directly if she was selling her property. Respondent answered, "This is how we have to do it for you to be in the program." Howard signed over the proceeds of the sale, which totaled $51,452.59, to RYM. Respondent received $1011 for legal and title fees.
Following the closing, Howard made rental payments to RYM for several months but stopped after she learned that RYM had not paid the property taxes. Howard paid the
property taxes herself but her home was foreclosed upon in 2008. Howard testified that she had to move out of the home where she had raised her family and lived for half of her life. An attorney from the Legal Assistance Foundation has filed a lawsuit on behalf of Howard and others who lost their homes to RYM.
C. Muhammad Transaction
Shakeela Muhammad decided to participate in the RYM program in July 2005. At that time, she had a pending Chapter 13 bankruptcy petition. Muhammad withdrew her bankruptcy petition at the direction of Respondent and Felix Daniel, President of RYM, so that she could participate in the RYM program.
Respondent represented Muhammad at a closing on July 14, 2005, and received a $350 fee. Respondent directed Muhammad and her husband to sign numerous documents, but did not explain any of them. Muhammad testified that she did not understand that she was selling her home. She believed that it would be placed in trust under her name and Felix Daniel's name for five years.
Muhammad's proceeds from the sale were $44,156.71. As directed by Respondent, Muhammad signed the proceeds of the sale over to RYM with the expectation that RYM would pay the mortgage, taxes, and other costs associated with the property.
Muhammad made rent payments to RYM from July 29, 2005 through May 1, 2006. In December 2005, Muhammad learned that RYM had not paid her 2004 property taxes or her homeowners insurance. Around that same time, she received a foreclosure notice that was directed to the third-party investor, Onshelle Jackson. After learning that RYM was not making the mortgage payments, Ms. Jackson advised Muhammad to stop making rent payments and quitclaimed the property back to Muhammad. The lender filed a foreclosure action on the
property on May 18, 2006.
Both Ms. Jackson and Muhammad asked Respondent for assistance. Respondent told Ms. Jackson that she represented only the seller, despite the fact that she had assisted Ms. Jackson during the closing. Muhammad tried to contact Respondent numerous times by phone and mail. Respondent agreed to refund to Muhammad the $350 in attorney fees she received from the closing, in exchange for Muhammad signing a release of liability and withdrawing the complaint she filed with the Commission. Muhammad retained an attorney and, after four years, the lender returned her property to her.
Respondent testified that she believed that RYM was a Christian organization that was trying to help people, but she now realizes it was a fraudulent scheme.
The Hearing Board found that the Administrator proved all of the misconduct charged in Counts II-IV. The charges of Counts II-IV mirror those of Count I, except that they do not include a charge of violating Rule 8.4(a)(3).
Evidence and Findings Pertaining to IJCN (Counts V and VI)
Respondent and D'Mona Ross, a loan officer who participated in the W2X and RYM transactions, created In Jesus Christ's Name Investments, Inc. (IJCN), in March 2006. Respondent testified that she created IJCN because she had experienced a foreclosure herself and wanted to help people avoid that experience. She had terminated her relationship with RYM in February 2006 after she learned that they had breached their lease and trust agreements.
IJCN followed the same business model as RYM, i.e., purportedly using a homeowner's equity obtained through a sale-lease-buyback program to reduce the homeowner's expenses. IJCN created a land trust for the purpose of holding the properties in the program. Respondent acted as IJCN's registered agent and corporate attorney and co-managed IJCN with
Respondent's father and Ross's mother were third-party investors in IJCN transactions. For each transaction, they received a participation fee of $5,000 to $10,000.
Counts V and VI involve Respondent's representation of Sandra Spikes-Davis and Charles Kmiec, respectively.
A. Spikes-Davis Transaction
Spikes-Davis enrolled in the IJCN program in 2006. She met with Respondent in Respondent's office, where Respondent asked her to sign "a bunch" of blank documents.
Respondent's father, James Betts, was the third-party investor in the Spikes-Davis transaction. He received $10,000 for his participation. Through Betts, IJCN obtained two mortgage loans for the Spikes-Davis property. Betts admitted that his income was falsely represented on both loan applications and that one of the applications falsely indicated that he intended for the Spikes-Davis property to be his primary residence.
Respondent never discussed with Spikes-Davis the possibility that conflicts could arise as a result of her interest in IJCN, her interest as the title agent, or her father's involvement in the transaction. At no time did she advise Spikes-Davis that she could seek advice from another attorney.
Spikes-Davis testified that she did not attend the July 28, 2006, closing because she was not advised of the closing date. Respondent testified that there was no need for Spikes-Davis to attend, because she had already executed the deed that transferred her property to the IJCN Trust.
Respondent received $1507.50 in legal and title fees for the Spikes-Davis closing. The proceeds to Spikes-Davis totaled $31,533.48. Respondent, or someone acting at her
direction, deposited the proceeds check into IJCN's account. The funds in the IJCN account were subsequently used for Respondent's and Ross's personal and business expenses.
Sometime during the summer of 2006, Spikes-Davis called Ross to inquire when the closing on her property would take place. Spikes-Davis was surprised to learn that not only had the closing already occurred but she would not have a grace period for her rental payments. Spikes-Davis signed a lease agreement because Ross told her she would be evicted if she did not do so. Spikes-Davis then consulted with another attorney, who filed suit against Respondent and Ross.
In December 2006, Betts received a notice of foreclosure for the Spikes-Davis property. In September 2007, he received a notice of default for the second mortgage loan. Betts testified that he forwarded these notices to Respondent and also called her when he received them. Respondent said that she would talk to Ross about the notices.
At the time of the disciplinary hearing, Betts still owned the Spikes-Davis property, and Spikes-Davis's action against Respondent was still pending.
Respondent testified that her partner, Ross, handled the mortgage loans for IJCN and took advantage of her.
The Hearing Board found that the Administrator proved all of the charges in Count V, which mirror those of Counts II-IV and also include the charge of entering into a business transaction with a client without obtaining the client's consent to a conflict of interest after full disclosure, in violation of Rule 1.8(a).
B. Kmiec Transaction
Charles Kmiec enrolled in the IJCN program in July 2006. Ross's mother, Betty Ross, was the third-party investor for Kmiec's property. The closing occurred on August 30,
2006. Respondent received $1686 in attorney and title agent fees. Kmiec's proceeds were $83,955.07, which were deposited in the IJCN account without Kmiec's signature. Kmiec died the day after his closing, on August 31, 2006.
Kmiec's sister, Mitchelle Kmiec, contacted Respondent shortly after Kmiec's death to inquire about IJCN. Respondent explained the program to Ms. Kmiec and told her that the program fee was $30,000. Ms. Kmiec indicated that she was not interested in the program. Respondent told Ms. Kmiec that the proceeds from the sale were held in escrow and would be used to make mortgage payments on the property.
On January 6, 2007, Ms. Kmiec, who is a paralegal, sent Respondent a letter requesting an accounting of the escrow funds, payment of any remaining escrow funds, and a copy of any contracts Kmiec had executed. Respondent sent a letter in response, setting forth the options of repurchasing the property or allowing IJCN to sell the property. Respondent's letter further stated that Ms. Kmiec would have to pay IJCN's program fees, which had increased to $41,101.67.
Ms. Kmiec repeatedly advised Respondent that she did not want to participate in the program and requested that the balance of the escrow account be remitted to her. In March 2007, Respondent told Ross to turn over the funds to Ms. Kmiec but Ross did not do so, purportedly because she did not have the necessary documents. At that time, Respondent was having complications with her pregnancy and was not in the office.
The lender filed a foreclosure action on the Kmiec property, and Ms. Kmiec retained an attorney who intervened in that action. Respondent agreed to settle Ms. Kmiec's claims against her for $35,000. Respondent was to pay the settlement by February 19, 2010, but had not made any payments as of the date of the disciplinary hearing in April 2010.
The Hearing Board found that the Administrator proved all of the misconduct charged in Count VI, which included engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4), and engaging in conduct that 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.
Respondent presented the testimony of two pastors, Arthurine Wilkinson and Earnest Ledbetter, Jr., who stated that Respondent is an honest person. Respondent has provided pro bono services to an organization from Wilkinson's church and has represented Ledbetter in a real estate transaction. Suzanne Bolda and Marchette Turner, both of whom have known Respondent for many years, also testified to her honesty. Neither Bolda nor Turner had any knowledge of Respondent's reputation within the legal community.
Respondent testified that she has performed charitable work for numerous organizations as part of a public service sorority. She has volunteered in her church and her community and has performed pro bono work for religious organizations. She has not kept track of the amount of time she has spent on pro bono work. She has been an ordained minister since 2003.
Respondent raises 32 issues on review but fails to support many of her arguments with relevant authority and citations to the record, as required by ARDC Rule 302(f)(5). Pursuant to ARDC Rule 302(i), we may decline to review Respondent's arguments that are not supported by citation to the record or legal precedent.
In light of the severity of the charged misconduct and the recommended sanction,
to the extent that we are able, we will review Respondent's arguments that are adequately developed. See In re Brooks, 05 CH 47 (Review Board, Dec. 12, 2008), petition for leave to file exceptions allowed, sanction modified, No. M.R. 22933 (March 16, 2009).
Respondent asserts misconduct and discrimination by counsel for the Administrator and by the Hearing Board, as well as other procedural errors. We address these issues before considering the findings of misconduct.
Many of Respondent's arguments fall into the category of technical procedural objections that had no impact on the fairness of the proceedings. Technical objections "generally will not provide grounds for altering the Hearing Board's Report and Recommendation." In re Kozel, No. 96 CH 50 (Review Board, Dec. 30, 1999) at 10, petition for leave to file exceptions allowed, No. M.R. 16530 (June 30, 2000). Rulings pertaining to discovery, evidence, and other procedural issues such as a motion to continue the hearing date are reviewed under an abuse of discretion standard. See, e.g., In re Blank, 145 Ill.2d 534, 553-54, 585 N.E.2d 105 (1992); In re Paden, No. 04 CH 116 (Review Board, Oct. 5, 2007), petition for leave to file exceptions denied, M.R. 22068/22089 (May 18, 2007). To the extent that any of Respondent's arguments raise issues of law, we review them de novo. In re Winthrop, 219 Ill.2d 526, 544, 848 N.E.2d 961 (2006).
I. Misconduct by Counsel for the Administrator
Respondent alleges that counsel for the Administrator engaged in misconduct by (1) filing a complaint in this matter that contained false statements and failed to include statements from Respondent's clients; (2) attempting to improperly influence the Hearing Board by introducing hearsay testimony from another proceeding; (3) transporting witnesses to and from their depositions; (4) discriminating against Respondent by failing to depose certain
witnesses; and (5) engaging in improper nonverbal communication with the Hearing Board Panel during the hearing.
After carefully reviewing the record, we conclude that Respondent has not established any improper conduct by counsel for the Administrator. She did not provide facts or law in support of her contentions to either the Hearing Board or to this Board, nor has she demonstrated any prejudice. Absent any support, we cannot and do not find any error.
II. Hearing Board Bias
Respondent asserts that the Hearing Board was biased against her. Specifically, she contends that (1) the Hearing Board Chair (Chair) failed to report the prosecutorial misconduct outlined above, and (2) the Chair's issuance of an order making a general finding of misconduct the day after the hearing concluded demonstrated bias.
The Hearing Board is presumed to be impartial, like any trier of fact. See In re Ducey, 01 SH 118 (Review Board, Sept. 8, 2006) at 11, petition for leave to file exceptions allowed, No. M.R. 21234 (Sept. 18, 2007). The party asserting bias must present evidence to overcome the presumption. Ducey, 01 SH 118 at 11. Respondent has not done so here. We have carefully reviewed the record and find no evidence of bias against Respondent.
As we explained, Respondent did not establish any improper conduct that would have required the Chair to report counsel for the Administrator. At a pretrial conference, Respondent complained to the Chair in a general way about alleged problems with the complaint and the Administrator's transportation of witnesses to depositions. The Chair advised Respondent that she could raise these issues at trial and present any relevant case law. Respondent admitted that there was no case law that supported her position and made no mention of the issues at trial. Respondent cannot complain now about issues she failed to
preserve for review.
Respondent's claim of bias based on the Chair's order of April 28, 2010 also fails. The order, which was entered shortly after Respondent's hearing concluded, stated generally that the Administrator established that Respondent engaged in misconduct and directed counsel for the Administrator to file orders or opinions imposing discipline on Respondent, if any. According to Respondent, the general finding of misconduct set forth in the order shows that the Hearing Board intended to find her guilty of misconduct without considering all of the evidence. Respondent misconstrues the Chair's order.
The order in question was entered pursuant to ARDC Rule 277, which provides in part that "[i]f the hearing panel concludes that the Administrator has established that the respondent engaged in misconduct, the Chair shall enter an order directing the Administrator to file within seven days copies of any orders or opinions imposing discipline on the respondent, that are not already in evidence." This Rule is "a mechanism for ensuring that evidence of prior discipline is considered only after there has been a finding of misconduct," as required by Supreme Court Rule 753(c). In re Kirby, 07 CH 97 (Review Board, April 29, 2011) at 12, petition for leave to file exceptions denied, No. M.R. 24715 (Nov. 22, 2011). Where, as here, the Hearing Panel concludes after a hearing that the Administrator has established misconduct, it is standard procedure for the Chair to enter this type of order. It was entered for the purpose of facilitating the disclosure of any prior orders of discipline and was not intended to represent the Hearing Board's findings as to all of the charges at issue. Rather, the Hearing Board issued its specific findings in a detailed Report and Recommendation issued on March 30, 2011. Accordingly, the entry of this order does not establish any bias against Respondent.
III. Signing of Orders by Clerk's Office
Respondent makes much of the fact that some of the orders and the Report and Recommendation of the Hearing Board issued in this matter were signed and initialed by the Clerk of the Commission on behalf of the Chair. Respondent questions whether "these documents were prepared or even read by the Chairman." There is no evidence that the Clerk acted without the Chair's authority and, more importantly, no evidence that Respondent was prejudiced in any way by the manner in which the orders were signed. Moreover, Respondent has not presented any authority for her contention that the orders were "void ab initio." Therefore, we reject this argument.
IV. Subject Matter Jurisdiction
Respondent asserts, without any citation to authority, that the Hearing Board lacked subject matter jurisdiction over her hearing because of motions pending before the supreme court relating to witness subpoenas. The record reveals that, in the months leading up to the hearing date, Respondent filed motions asserting technical objections to the Administrator's service of hearing subpoenas upon witnesses. The Chair denied Respondent's motions, and she then filed similar motions in the supreme court. The supreme court denied one of Respondent's motions prior to the hearing but one motion, which was ultimately denied, remained pending when the hearing began. In that motion, Respondent sought to quash the hearing subpoenas for all of the Administrator's witnesses on the ground that they were served on the witnesses' counsel instead of on the witnesses personally. The Chair denied Respondent's motion to stay the hearing.
Respondent has not established that she had standing to challenge the hearing subpoenas or that the Chair abused his discretion in denying her motion to stay the hearing.
Absent any legal authority for Respondent's contention that the Chair was required to stay the hearing, we decline to find any abuse of discretion.
V. Due Process
In a two-sentence argument, Respondent argues that there was an improper taking of her license without due process between June 2009 and October or November 2009, because the ARDC website indicated on September 25, 2009, that she was not authorized to practice law due to discipline. We disagree with Respondent's premise that a taking occurred.
For constitutional purposes, a taking occurs "when government action directly interferes with or substantially disturbs the owner's use and enjoyment of the property." Black's Law Dictionary (9th Ed. 2009). There is no evidence in the record of a government act that was intended to or actually interfered with Respondent's practice of law from June through November 2009. Rather, this appears to have been mistake on the part of the Registrar that was corrected once Respondent brought it to the Chair's attention. Respondent does not cite and we are not aware of any authority that supports her assertion that this error constituted a taking or affected her practice in any way, or that her due process rights were violated.
VI. Findings of Misconduct
We do not disturb the Hearing Board's findings of fact unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). A finding is against the manifest weight of the evidence only when the opposite conclusion is clearly evident. Winthrop, 219 Ill.2d at 542, 848 N.E.2d 961. Because the Hearing Board is in the best position to assess a witness's credibility, we defer to its credibility findings on review. In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560 (2004). Whether the facts as found by the Hearing Board constitute misconduct is a question of law that we review de novo. Winthrop, 219
Ill.2d at 542, 848 N.E.2d 961.
Overreaching occurs when an attorney takes undue advantage of or abuses her position of influence over a client. In re Rinella, 175 Ill.2d 504, 516, 677 N.E.2d 909 (1997). Respondent asserts that she did not overreach the attorney-client relationship because she did not become involved in the transactions at issue until after her clients had decided to enroll in the foreclosure assistance programs. We disagree.
Once Respondent received referrals from W2X and RYM, she had plenty of time to discuss the transactions with her clients. However, the record does not contain evidence of any effort to explain the transactions or to protect her clients' interests. Respondent's actions were focused on advancing her own financial interests and those of W2X, RYM, and IJCN by completing all of the matters assigned to her. She accomplished this by instructing her clients to sign blank documents or to sign documents without reading them. Her clients did so because they trusted her and mistakenly believed she was protecting their interests. In the rare instance when a client raised a question, Respondent replied that "this is the way it has to be done," instead of providing any explanation. By withholding the most basic nature of the transactions, Respondent influenced her clients to act against their own interests. She was able to accomplish this because her clients were financially vulnerable and legally unsophisticated and would not "rock the boat" because they did not want to lose their homes. This is sufficient evidence of overreaching.
Moreover, Respondent's argument overlooks the fact that she was directly involved in soliciting IJCN clients. She created IJCN, co-owned and co-managed it, and met with potential clients, including Spikes-Davis. Her purported lack of involvement is not
supported by the record.
B. Breach of Fiduciary Duty
Respondent's sole argument on this point is that her testimony that she was motivated by her religious faith to assist people overcomes the evidence that she engaged in self-dealing and breached her fiduciary duty. It is undisputed that an attorney-client relationship existed in the transactions at issue and, consequently, Respondent owed a fiduciary duty of fidelity, honesty, and good faith to her clients. See In re Winthrop, 219 Ill.2d 526, 543, 848 N.E.2d 961, 972-973 (2006); In re Gerard, 132 Ill.2d 507, 529, 548 N.E.2d 1051, 1059 (1989). Attorneys owe their clients "undivided fidelity" and "the basic obligations of agency: loyalty and obedience." In re Biagini, 07 SH 13 (Review Board, March 25, 2009) at 9-10, citing Winthrop, 219 Ill.2d at 543, 848 N.E.2d at 972-73, and cases cited therein; approved and confirmed, No. M.R. 23136 (Sept. 22, 2009).
Respondent's motivations for her actions are neither dispositive of this issue nor supported by the record. The Hearing Board considered all of the evidence, including Respondent's testimony about her motivation, and found her to be disloyal and motivated by her own interests. We defer to the Hearing Board's factual findings on this issue and have no reason to disturb them.
C. Failure to Abide by Client's Decisions and to Keep Them Informed
Respondent argues that the Hearing Board disregarded certain evidence that demonstrated her clients' understanding of the nature of the real estate transactions, thereby rendering the finding that she failed to abide by their decisions against the manifest weight of the evidence. Contrary to Respondent's assertion, there is no indication in the record that the Hearing Board disregarded any evidence. Rather, the Hearing Board weighed the evidence and
found that Respondent's clients did not understand that they were selling their homes. They testified that they did not read the documents that were presented to them and that Respondent did not explain them. The Hearing Board found credible their testimony that they believed they were refinancing or placing their homes in trust. Respondent's disagreement with the Hearing Board's findings, without more, does not constitute reversible error.
D. Conflict of Interest
Respondent's arguments pertaining to the findings that she engaged in conflicts of interest misapprehend the Hearing Board's findings. Respondent argues that the evidence did not establish that she represented both the buyers and the sellers in the W2X and RYM transactions. While there was evidence that the buyers in those transactions believed that Respondent was acting as their attorney, the Hearing Board made no such findings. Rather, it found that Respondent engaged in misconduct by failing to advise her clients of potential conflicts that could result from her interest in maintaining her referral relationships with W2X and RYM. Respondent has not presented any reason to disturb the Hearing Board's findings that she engaged in a conflict of interest by focusing on "closing the deal" for W2X and RYM instead of focusing on her client's interests.
Moreover, the Hearing Board found that Respondent entered into a business transaction with Spikes-Davis without obtaining Spikes-Davis's consent to the conflict arising from Respondent's interest in IJCN. Respondent fails to address this obvious conflict of interest, and we conclude that the evidence supports the Hearing Board's findings on this issue. Respondent's contention that Spikes-Davis and other clients signed controlled business arrangement disclosure forms is not dispositive, as the Hearing Board found that the clients did not give informed consent due to Respondent's failure to explain the forms and to advise her
clients that they could seek independent counsel.
E. Dishonest Conduct
Respondent summarily argues that there was no evidence of fraudulent intent to support the finding that she engaged in dishonest, deceptive, or fraudulent conduct in violation of Rule 8.4(a)(4). We disagree. In order to establish a violation of Rule 8.4(a)(4), there must be "some act or circumstances that [show] the respondent's conduct was purposeful." In re Cutright, 233 Ill.2d 474, 910 N.E.2d 581 (2009). The following evidence supports the Hearing Board's finding that Respondent acted dishonestly.
Respondent withheld information from her clients when it suited her needs. Not only did she fail to provide clients with basic information about the transactions they were executing and about her own interests in those transactions, she did not advise some clients of the dates of their closings and proceeded with the closings in their absence. Respondent's false notarization of Hatchett's signature is another example of purposefully dishonest conduct. The Hearing Board did not find Respondent credible on this issue, and we have no reason to disagree with that finding.
With respect to the IJCN transactions, the Hearing Board found that Respondent was a "full and willing participant" in the scheme to defraud both Spikes-Davis and the lenders in that transaction. Noting that Respondent created IJCN and was IJCN's attorney, the Hearing Board rejected Respondent's attempt to claim ignorance of IJCN's fraudulent activities and to place the blame on her business partner, Ross. Moreover, the buyer in the Spikes-Davis transaction was Respondent's father. Respondent had access to her father's loan application and knew that the representations regarding her father's finances and living arrangements were not true. All of the foregoing evidence supports the Hearing Board's finding of fraudulent intent.
F. Violation of Notary Public Act-Criminal Conduct
The Hearing Board found that Respondent violated Rule 8.4(a)(3) (now Rule 8.4(b)), which provides that it is misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. The Hearing Board found that Respondent "engaged in criminal conduct when she notarized Hatchett's signature without witnessing it being signed or properly verifying the signature," in violation of the Illinois Notary Public Act, 5 ILCS sec.312/6-102, and sec.312/7-105 (Notary Public Act). Respondent argues that there can be no violation of Rule 8.4(a)(3) when she has not been charged with or convicted of any criminal conduct. Pursuant to the reasoning in In re Smith, 07 CH 71 (Review Board Oct. 14, 2010), petition for leave to file exceptions allowed, No. M.R. 24275, we agree with Respondent.
Like Respondent, Smith notarized signatures without properly verifying them and attested that signatories to warranty deeds personally appeared before him when they did not. He was not charged with any crime. The Review Board in Smith reversed the Hearing Board's finding that Smith committed a criminal act by violating the Notary Public Act and explained its decision as follows:
A Hearing or Review Board panel may find, based on clear and convincing evidence, that a lawyer violated a statute that has criminal penalties, and may sanction him based on that violation if his conduct was contrary to a professional conduct rule or established precedent. But we conclude that it cannot take the additional step of finding him guilty of ?a criminal act' if there has been no court rendered conviction. The reasons for this conclusion are implicit in our system of justice. A criminal defendant is entitled to a trial by jury and his guilt must be proved beyond a reasonable doubt, not by clear and convincing evidence. In re Smith, 07 CH 71, Review Board Report and Recommendation at 9.
The Review Board concluded in Smith that "it simply cannot be known whether ?a criminal act'
has been committed until there has been a conviction rendered by a court of law." Smith, 07 CH 71, Review Board Report and Recommendation at 9. In the case before us, there was no finding beyond a reasonable doubt that Respondent engaged in a criminal act. Therefore, pursuant to Smith, we recommend that the Hearing Board's finding that Respondent violated Rule 8.4(a)(3) be reversed.
Moreover, even if Rule 8.4(a)(3) does not require proof of a criminal conviction, we believe that the Hearing Board's finding on this charge should be reversed because the Administrator did not plead or prove the necessary elements of a criminal violation of the Notary Public Act. As the Review Board noted in Smith, improper notarization is not necessarily a criminal act. Rather, "[a] finding of ?official misconduct' is a prerequisite under 5 ILCS 312/7-105(a) or (b) for establishing the commission of a crime by a notary public." Smith, 07 CH 71, Review Board Report at 10. The Review Board in Smith determined that there could be no violation of Rule 8.4(a)(3) when the Hearing Board expressly found insufficient evidence of official misconduct, even though it found that Smith improperly notarized a document. Smith, 07 CH 71, Review Board Report and Recommendation at 10. In this case, there was neither an allegation that Respondent committed official misconduct nor a finding by the Hearing Board that she engaged in official misconduct under section 5 ILCS 312/7-105. Consequently, here, as in Smith, "there was necessarily no finding of ?a criminal act' to establish a violation of Rule 8.4(a)(3)." See Smith, 07 CH 71, Review Board Report and Recommendation at 10.
Our recommendation that the finding that Respondent violated Rule 8.4(a)(3) be reversed does not change the finding that Respondent acted dishonestly in making the improper notarization, in violation of Rule 8.4(a)(4), nor does it alter our sanction recommendation.
G. Violation of Title Insurance Act
Respondent argues that the evidence did not establish that she violated the Title Insurance Act, 215 ILCS 155/18, which required her to disclose that she was a title agent who would receive a fee from the title company as part of the real estate transactions. Respondent notes that her clients' signatures appear on controlled business arrangement disclosure forms that set forth the information required by the Title Insurance Act.
Although Respondent's failure to fulfill the requirements of the Title Insurance Act was included in the allegations of Counts I-IV of the complaint, it does not appear that her failure to comply was a specific charge of misconduct. Rather, these allegations were part of the basis for the charges of conflict of interest, failing to keep clients reasonably informed about the status of a matter, and/or failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions. The Hearing Board did not make a specific finding regarding Respondent's compliance with the Title Insurance Act. As set forth above, we recommend that the findings that Respondent engaged in conflicts of interest, failed to keep her clients reasonably informed, and failed to explain matters to her clients be affirmed regardless of whether Respondent violated the Title Insurance Act. Therefore, we need not address this argument.
H. Supreme Court Rule 770
The Hearing Board found that Respondent violated Supreme Court Rule 770 by engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. After the Hearing Board issued its Report and Recommendation in this matter the Court in In re Thomas, 2012 IL 113035 (Jan. 20, 2012), clarified that "Supreme Court Rule 770 is not itself a Rule of Professional Conduct ? [r]ather,
one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." Thomas, 2012 IL 113035. Thus, the finding that Respondent violated Supreme Court Rule 770 cannot stand. This does not affect the sanction recommendation, however, because Respondent is subject to discipline based on her numerous violations of the Rules of Professional Conduct.
The Hearing Board recommended that Respondent be disbarred. This recommendation is advisory. In re Hopper, 85 Ill.2d 318, 325, 423 N.E.2d 900 (1981). When making our independent recommendation, we consider that the purposes of the disciplinary process are to protect the public, maintain the integrity of the legal system, and safeguard the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). We seek to recommend sanctions that are consistent with sanctions imposed for similar misconduct (Timpone, 157 Ill.2d at 197, 623 N.E.2d 300), but must base our recommendations on the particular facts of each case, which include the nature of the misconduct as well as the factors in mitigation and aggravation (In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526 (1991)). For the following reasons, we conclude that disbarment is warranted.
Respondent's argument that she should be reprimanded is not tenable in light of her pattern of fraudulent misconduct. There are numerous cases in which respondents who knowingly participate in a series of fraudulent acts over a period of time have been disbarred. See In re Hook, 98 CH 50 at 9 (Review Board, May 16, 2006), petition for leave to file exceptions denied, No. M.R. 21025 (Sept. 21, 2006); In re Wick, 05 CH 66 (Review Board, May 7, 2010), petition for leave to file exceptions denied, No. M.R. 23942 (Sept. 22, 2010). In addition to the nature of Respondent's misconduct, there are significant factors in aggravation that convince us that disbarment is the appropriate recommendation.
First, Respondent took advantage of and caused significant financial harm to her clients at a time when they were financially vulnerable. See In re Cutright, 233 Ill. 2d 474, 910 N.E.2d 581 (2009). Respondent's clients sought her out in an effort to prevent foreclosure and instead unknowingly surrendered title to their homes, with several losing their homes as a result of their participation in these fraudulent schemes. Many of Respondent's clients had to seek additional representation and file suit against Respondent and the other parties involved in an effort to save their homes or recoup some of their losses. As the Hearing Board notes, Respondent's misconduct also harmed the lenders in these transactions, who made hundreds of thousands of dollars in loans that were not repaid.
We also consider that Respondent violated her clients' trust for her own financial gain. Despite her protestations to the contrary, the evidence is clear that Respondent's actions were motivated by greed, not by a desire to help others. Respondent's self-serving motives are additional factors in aggravation.
The commission of conduct involving dishonesty is yet another aggravating factor that applies in this case. We concur in the Hearing Board's assessment of the progression of Respondent's fraudulent conduct. Respondent began by helping to facilitate the transactions orchestrated by W2X and RYM and moved on to orchestrating similar schemes so that she could maximize her gain. Both the pattern and the increasingly dishonest nature of this misconduct are factors in aggravation. See In re Conner, 08 CH 119 (Review Board, Dec. 30, 2010), approved and confirmed, No. M.R. 24471 (May 18, 2011).
We are also troubled by Respondent's lack of remorse and acceptance of responsibility for her wrongdoing. Despite Respondent's numerous clear violations of the ethical rules and the substantial harm she caused, she not only fails to express remorse but
maligns the integrity of the disciplinary process, blaming "those affiliated with the Commission" for the predicament in which she now finds herself. Consequently, we feel strongly that Respondent is unable or unwilling to conform her conduct to the rules of ethics and is likely to commit misconduct in the future. Our recommendation must protect the public from this likelihood.
The mitigating evidence in this case is not substantial. Respondent has no prior misconduct and cooperated in these proceedings. She presented four character witnesses who testified that she is an honest person. However, these witnesses are not attorneys and are not familiar with Respondent's reputation within the legal community. Respondent testified that she is very active in her church and community and has performed pro bono legal work for various churches and for some first-time homebuyers. Although these contributions are commendable, Respondent's very general testimony does not overcome the extensive misconduct she committed.
We disagree with Respondent that the Hearing Board did not give proper weight to the mitigating evidence. In particular, she contends that the Hearing Board failed to consider that she suffered complications in her pregnancy during the time she was participating in the investigation of this matter in late 2006 and early 2007. We do not see how health issues that occurred after most the misconduct in question should have any effect on the sanction recommendation. Moreover, the Hearing Board considered Respondent's mitigating evidence but gave it little weight due to its generic nature and the severity of her misconduct. We are in agreement with the Hearing Board that the mitigating evidence deserves little weight.
The following cases support a recommendation of disbarment. In In re Colon, 03 CH 121 (Hearing Board, Jan. 25, 2005), approved and confirmed, No. M.R. 20094 (May 20,
2005), also relied upon by the Hearing Board, the respondent was disbarred for misconduct similar in nature to Respondent's. In addition to maintaining a law practice, Colon was president of Adonis Management and Investment Holding Company (Adonis). Through Adonis, Colon entered into three real estate transactions with two clients without advising them of his interests in the transactions. In two of the transactions, Colon or someone acting at his direction prepared and submitted loan applications containing information that Colon knew to be false. Colon also converted approximately $20,000 in client funds, which he eventually repaid. Colon did not participate in his disciplinary proceedings. The Hearing Board concluded that Colon's misconduct was "so calculating and multifaceted that both future clients and members of the public would be at risk if [r]espondent were allowed to practice law." Colon, 03 CH 121, Hearing Board Report and Recommendation at 22.
In In re Paden, 04 CH 116 (Review Board, Oct. 5, 2007), petition for leave to file exceptions denied, No. M.R. 22089 (May 19, 2008), the respondent falsely represented the purchase price of her client's property to the client as $77,500, when it was in fact $245,000. Paden concealed the truth about the sale from her client, did not deliver the proceeds of the sale to her, and forged her client's signature on a Power of Attorney. Paden evaded service of the Administrator's complaint but eventually was served and participated in some prehearing proceedings. She did not attend her hearing. Because of the extent of Paden's deceptive conduct, the significant harm she caused to her client, and her failure to cooperate in her disciplinary proceedings, the Hearing and Review Boards recommended disbarment and the supreme court approved those recommendations.
We recognize that neither Colon nor Paden participated in their disciplinary hearings, which is a significant factor in aggravation that is not present here. Nonetheless,
Respondent's misconduct was more extensive than Colon's and Paden's. Paden was involved in one improper transaction and Colon was involved in three. Respondent, on the other hand, orchestrated two improper transactions through IJCN and participated in at least four others through W2X and RYM. Moreover, although Respondent did not commit conversion like Colon, she benefited financially from her misconduct.
Based on the relevant case law, the egregious nature of the misconduct, and, most significantly, Respondent's lack of acceptance of responsibility for and recognition of her misconduct, we are convinced that disbarment is the appropriate recommendation.
For the foregoing reasons, we recommend that the Hearing Board's findings that Respondent violated Rule 8.4(a)(3) and Supreme Court Rule 770 be reversed and the remaining findings of misconduct be affirmed. We further recommend that the Respondent, Avalon ?lan Betts-Gaston, be disbarred.
Richard A. Green
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on July 18, 2012.
Kenneth G. Jablonski, Clerk of the
1 Because there are two individuals in this matter with the surname Jackson, we refer to Warren Jackson as "Jackson," and to Onshelle Jackson as "Ms. Jackson."