Filed October 5, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
HERBERT ARTHUR BATES,
Commission No. 2011PR00108
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on April 25, 2012, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC) before a Panel of the Hearing Board consisting of Champ W. Davis, Jr., Chair, Tony J. Masciopinto, and Audrey Hauser. Alicia F. Duncan appeared on behalf of the Administrator. Respondent appeared and was represented by George B. Collins.
On August 24, 2011, the Administrator filed a three-count complaint, pursuant to Supreme Court Rule 753. The Complaint charged Respondent with failing to act with reasonable diligence and promptness in a client matter, failing to keep a client reasonably informed about the status of a matter and to comply with reasonable requests for information, engaging in conduct involving dishonesty and misrepresentations, charging an unreasonable fee, and failing to promptly refund unearned legal fees. Respondent filed an answer to the Complaint on October 20, 2011. Respondent's Answer denies some and admits some of the factual allegations in the Complaint, but denies all allegations of misconduct.
At the hearing, the Administrator presented the testimony of Patsy Woods and the transcript of Lance E. Woods's evidence deposition, which was admitted into evidence as Administrator's Exhibit 16. Additionally, Administrator's Exhibits 1 through 12, 15, and 17 through 20 were admitted into evidence. Respondent testified on his own behalf and presented the character testimony of Pamela Hill-Veal and Fredrenna Lyle. Respondent's Exhibit 1 was admitted into evidence.
On May 1, 2007, Lance Woods was convicted in the Circuit Court of Cook County of attempted first-degree murder and aggravated battery with a firearm. Lance was subsequently sentenced to two concurrent sixteen-year terms in the Illinois Department of Corrections. (Tr. 29; Adm. Ex. 1; Adm. Ex. 16 at 6-7). On May 30, 2007, trial counsel filed a notice of appeal on his behalf, and on June 8, 2007, the Office of the State Appellate Defender was appointed to represent him on his appeal. (Tr. 30; Adm. Ex. 2 at 1; Adm. Ex. 3).
The State Appellate Defender's office filed three motions, requesting extensions of time to file appellant's record as the trial transcripts had not yet been generated. These motions were all granted. (Adm. Ex. 4 at 35-40, 75-80). Subsequently, from February 15, 2008, through November 15, 2008, the State Appellate Defender's office filed five status reports with the Appellate Court, regarding the status of the trial transcripts. The Certificate in Lieu of Record was ultimately filed instanter on December 24, 2008. (Adm. Ex. 4 at 8-21, 25-29, 31-33).
On January 23, 2009, the State Appellate Defender's office filed the first of three motions requesting an extension of time to file appellant's brief, which was granted on February 5, 2009.
On April 2, 2009, the court granted the third motion, giving Lance until April 27, 2009, to file his brief. The order indicated that this would be the final extension. (Adm. Ex. 4 at 46-50, 56).
In early March 2009, Patsy Woods, Lance's mother, became aware that she would be receiving approximately $25,000 in back pay for Social Security Disability Insurance (SSDI). (Tr. 33, 58, 99; Adm. Ex. 16 at 12). This money gave Patsy the financial means to hire private counsel to represent Lance on his appeal. Both Lance and Patsy thought that by hiring new counsel, Lance would have a better chance at a successful appeal as his interests would be more adequately represented and the issues Lance felt were important would be brought to the Appellate Court's attention. (Tr. 31; Adm. Ex. 16 at 8-9, 11-12, 43-44).
Lance recommended his mother hire Respondent to represent him. Lance knew Respondent because he was friends with Respondent's son. (Tr. 32; Adm. Ex. 16 at 9-10).
In March 2009, Patsy contacted Respondent about representing Lance on his appeal. (Tr. 32-33, 98). Patsy informed Respondent that the State Appellate Defender had been working on Lance's case for a year and it seemed like nothing had been done. (Tr. 98, 124-25). Respondent expressed familiarity with Lance's case because of prior conversations he had with Lance's trial attorney, information he learned throughout the Hyde Park community, and conversations he had with his son. Respondent convinced Patsy he could handle Lance's appeal. According to Patsy, during this initial conversation, Respondent told her that he had experience in criminal appeals and Lance's appeal had a very good chance of success. This gave her a lot of hope. (Tr. 32-35, 124). At the hearing, however, Respondent testified that he had only one prior appellate experience. (Tr. 97).
During this same conversation, Respondent and Patsy discussed Respondent's legal fees. (Tr. 25). Respondent told her his fee would be $15,000, which Patsy could not afford. (Tr. 35, 99-100). Patsy informed Respondent she could not work because of medical issues, was broke, homeless, and lost all of her belongings. (Tr. 35-36; Adm. Ex. 16 at 12). She needed the $25,000 SSDI back pay to get back on her feet. (Tr. 56, 58). After being made aware of Patsy's circumstances, Respondent agreed to represent Lance for $10,000. (Tr. 35-36, 125; Adm. Ex. 16 at 10).
On March 11, 2009, Respondent sent Patsy a Retainer Agreement in which he agreed to represent Lance on his appeal and in exchange, Patsy agreed to pay Respondent $10,000. (Tr. 37-38, 125; Adm. Ex. 5). That same day Patsy transferred the initial payment to Respondent. (Tr. 39-41, 101, 125; Adm. Ex. 6 at 1; Adm. Ex. 16 at 11). At this point, Respondent and Patsy had not yet met because Patsy was living in Galesburg, Illinois, where her son was incarcerated. (Tr. 38-39, 98-99). After Patsy moved back to the Chicago area, she gave Respondent Lance's transcripts and the remaining money she owed him. (Tr. 41-42, 125-26; Adm. Ex. 6 at 2; Adm. Ex. 16 at 11, 14). Prior to agreeing to represent Lance, Respondent had not taken any steps to ascertain the posture of his appeal. (Tr. 127).
Respondent's Representation and Contact with Lance Woods
On April 17, 2009, Respondent filed his appearance on behalf of Lance, and on April 23, 2009, Respondent filed a motion requesting to substitute his appearance in place of the Office of the State Appellate Defender, which was granted on May 5, 2009. Also, on April 23, 2009, Respondent filed a motion requesting an extension of time to file appellant's brief, stating that on April 19, 2009, he first became aware that the brief was due on April 27, 2009. On May 14,
2009, the court granted the motion for an extension of time and gave Lance until June 12, 2009, to file his brief. (Tr. 131-34; Adm. Ex. 4 at 22, 61-70).
After Respondent had been paid his legal fees and before June 5, 2009, Lance had a number of telephone conversations with Respondent, discussing the issues on appeal. On June 5, 2009, Respondent sent a letter to Lance, which informed him the Appellate Court granted Respondent's request to represent him and for an extension of time to file his appellate brief. The letter also highlighted the work Respondent had done on Lance's case, which included reading the trial transcripts and talking with Lance's previous attorneys, as well as his thoughts on the issues to raise in the appellate brief. Respondent also stated he would likely visit Lance on Thursday, June 11, 2009. The June 5, 2009 letter was the only mailing Respondent ever sent to Lance. Lance understood this letter to mean Respondent was going to represent him and file a brief on his behalf. (Tr. 105, 135-39; Adm. Ex. 7; Adm. Ex. 16 at 13-17, 45, 52-53).
On June 10, 2009, Respondent filed a second motion for an extension of time, requesting until July 14, 2009, to file Lance's appellate brief. In the motion, Respondent represented that he received Lance's trial transcripts on or about May 10, 2009. The Appellate Court denied Respondent's motion on June 17, 2009. (Tr. 105, 136, 139; Adm. Ex. 4 at 71-74). Respondent testified that he did not expect the motion to be denied. (Tr. 105).
Respondent learned of the possibility of filing a brief instanter from the Appellate Defender. So, he continued to prepare a brief for filing. (Tr. 106). Respondent believed he had an indefinite period of time to file a brief instanter. Respondent understood that the Appellate Court was not required to accept a brief instanter and whether the court chose to accept the brief would be based on whether the brief had sufficient merit. (Tr. 159).
Lance testified that although he spoke to Respondent frequently, Respondent never informed him the second motion requesting an extension of time was denied. Rather, Respondent continually told him everything was going "fine" and "as planned." (Adm. Ex. 16 at 17). Respondent, however, testified that he informed Lance over the telephone that the second motion had been denied and the only way he could file Lance's brief would be by filing it instanter. Respondent informed Lance that he was working on the brief so it could be filed instanter. According to Respondent, he never indicated that Lance's case was "proceeding nicely." (Tr. 139, 155-56).
Respondent testified that he visited Lance for the first time around June 12, 2009. (Tr. 134-35). However, Lance stated the first time Respondent visited him was approximately a month or two after he received the June 5, 2009 letter. During Respondent's first visit with Lance, they discussed the underlying facts of Lance's case, the case theory at Lance's trial, and issues to raise on appeal. (Tr. 107; Adm. Ex. 16 at 16-17).
On October 17, 2009, Lance wrote Respondent a letter requesting his assistance in getting transferred to a facility closer in proximity to Lance's family and highlighting portions of his trial transcript to assist Respondent in drafting his brief. Lance testified that when he wrote this letter, he believed his appeal was going "fine" because of his frequent conversations with Respondent in which Respondent assured him he was working on his appeal. (Adm. Ex. 8; Adm. Ex. 16 at 18-21). Respondent acknowledged speaking to Lance on a weekly basis. (Tr. 106).
According to Respondent, he visited Lance for the second time on December 3, 2009. (Tr. 108). Lance testified that during Respondent's second visit they discussed a brief, but he did not see the brief as Respondent told him the prison guards confiscated it. (Adm. Ex. 16 at 47,
51-52). Respondent testified that during his December 2009 visit, he brought a draft brief with him and went over it with Lance. The prison guards did not confiscate any of Respondent's papers. Respondent testified that Lance was critical about the brief and directed him not to file it. (Tr. 108-11, 157).
On December 9, 2009, the Appellate Court entered an order dismissing Lance's appeal for want of prosecution. The order noted that Lance's brief had been due on June 12, 2009, the request for a further extension of time had been denied on June 17, 2009, and nothing further had been filed in Lance's appellate case. Respondent admitted that after the second motion for an extension of time was denied and before December 9, 2009, he did not file anything on Lance's behalf. (Tr. 140-42; Adm. Ex. 4 at 81).
Respondent never sent Lance the court's December 9, 2009 order. However, he testified that although he never told Lance his case had been dismissed for want of prosecution, he told him it had been dismissed because a brief had not been filed with the Appellate Court and as a result, the brief would have to be filed instanter. (Tr. 142, 155-56). Lance testified that Respondent never informed him his case had been dismissed. (Adm. Ex. 16 at 22, 25).
On January 26, 2010, a mandate of the Appellate Court was issued as neither a petition for rehearing nor a petition for leave to appeal to the Illinois Supreme Court had been filed. Consequently, as of January 26, 2010, the Appellate Court no longer had jurisdiction over Lance's case. Respondent was sent a copy of the mandate, but never mailed the mandate to Lance. (Tr. 143-44; Adm. Exs. 9, 12).
After the appeal had been dismissed and the mandate had been issued, Lance and Respondent still spoke on a regular basis. Respondent told Lance he would attempt to file Lance's brief instanter. Lance testified that Respondent continually told him they were moving
forward, the brief was about to be filed, and there was nothing going wrong with his case. (Tr. 145; Adm. Ex. 16 at 24-25).
On June 4, 2010, Lance sent Respondent a letter, via certified mail, requesting a copy of his trial and sentencing transcripts and any documentation from the Appellate Court regarding his case, such as court orders. (Tr. 144; Adm. Ex. 10; Adm. Ex. 16 at 21-22). According to Lance, he had asked Respondent for these documents previously, but never received them. (Adm. Ex. 16 at 14, 23). Respondent acknowledged at the hearing that he had never given Lance or Patsy the transcripts or copies of court documents per Lance's requests. (Tr. 144-45).
Additionally, in the June 4, 2010 letter, Lance acknowledged that Respondent told him the brief would be filed instanter. (Adm. Ex. 10). However, Lance did not know what it meant to file a brief instanter. (Adm. Ex. 11 at 2). Lance stated that when he wrote this letter he was still unaware his case had been dismissed for want of prosecution. (Adm. Ex. 16 at 22).
On December 29, 2010, Lance sent a letter to the Appellate Court. Lance wrote this letter because Respondent had yet to provide him with any of the requested documents regarding his case and he sensed something was wrong with his case. He also believed Respondent was not being candid. In this letter, Lance informed the Appellate Court that even though his appeal had not been filed, Respondent continued to reassure him there were no problems with his case and there was plenty of time to file his appellate brief. According to the letter, Respondent also had told him about filing his brief instanter, which, according to Respondent, would be faster and would have the same effect as filing a direct appeal. In his letter, Lance expressed concern as he had not been given information regarding whether filing a brief instanter was an acceptable way to file a direct appeal. He stated he did not know whether the deadline for filing his direct appeal had expired or the definition for "filing instanter," and he had been unable to get these answers
from Respondent. Lance expressed concern about Respondent's effectiveness. (Adm. Ex. 11 at 1-2; Adm. Ex. 16 at 25-26).
On January 4, 2011, the Appellate Court sent Lance a letter, stating his appellate case had been dismissed on December 9, 2009. According to the letter, the Appellate Court had issued a mandate, because neither a petition for leave to appeal to the Illinois Supreme Court nor a petition for rehearing had been filed, and no longer had jurisdiction over the appeal. The letter also informed Lance of the Black's Law Dictionary definition of "instanter." (Adm. Ex. 12). Lance testified that this letter was the first piece of information he received that his case had been dismissed. (Adm. Ex. 16 at 26-27).
After receiving the Appellate Court's letter, Lance contacted Respondent and asked him why he had not been told his case had been dismissed. According to Lance, Respondent assured him he would be able to file his appellate brief instanter. Lance told Respondent he had not fulfilled his duties and requested he return the $10,000. Respondent agreed to pay $5,000 immediately and $5,000 in a couple months. (Adm. Ex. 16 at 27-29).
According to Respondent he visited Lance in early December 2010. Respondent believes this visit was after he became aware that Patsy contacted the ARDC. (Tr. 122, 147, 157-58). Although Lance testified that the third visit took place in December 2010, he repeatedly declared that the third visit took place after he received the Appellate Court's January 2, 2011 letter informing him his appellate case had been dismissed, and after he complained to the ARDC. (Adm. Ex. 16 at 33-34, 48, 51-52).
During Respondent's third visit, he brought with him a brief and went over it with Lance. After reviewing the brief, Lance instructed Respondent not to file it, because it was late,
contained errors, and was incomplete as certain important issues he wanted raised in the brief were absent. (Tr. 112, 157; Adm. Ex. 16 at 34-36, 39, 52; Resp. Ex. 1).
On February 10, 2011, Lance complained about Respondent to the ARDC. (Adm. Ex. 16 at 28). According to Respondent, in either late April 2011 or early May 2011, Lance called him and gave him permission to file the brief. Then on May 2, 2011, after Respondent was notified of the ARDC investigation, he attempted to file the brief with the Illinois Appellate Court, but the court refused to accept it. (Tr. 122, 157; Resp. Ex. 1 at 26).
Respondent's Contact with Patsy Woods
After Patsy had hired Respondent to represent Lance, Respondent and Patsy spoke on a regular basis. Respondent was initially very responsive to Patsy's telephone calls. According to Patsy, Respondent assured her that everything was going "fine" and "well" with Lance's case. Respondent never told her that the second motion requesting an extension of time had been denied or that Lance's appeal had been dismissed for want of prosecution. (Tr. 43-45, 48, 51, 106).
Respondent, however, testified that he never indicated to Patsy that Lance's case was "proceeding nicely." (Tr. 155). Respondent first testified that he did not inform Patsy that the second motion requesting an extension of time had been denied or that Lance's appellate case had been dismissed for want of prosecution. (Tr. 139, 142-44). Yet, later on in his testimony, Respondent stated he did inform Patsy that the second motion requesting an extension of time had been denied, the brief would have to be filed instanter, and also that Lance's case had been "dismissed because the brief hadn't been received." (Tr. 155-56).
According to Patsy, at some point after Respondent had been representing Lance for at least six months, Respondent began acting differently. He was not as responsive to her
telephone calls. (Tr. 45). Additionally, Patsy testified that despite her requests, Respondent never provided her with copies of the court documents in Lance's case. (Tr. 47-48). According to Patsy, Respondent told her he mailed her copies of Lance's transcripts, but she never received them. (Tr. 45).
Eventually, Patsy became suspicious. (Tr. 46). So, she called the Appellate Court and found out that Lance's case had been dismissed a year prior. (Tr. 51).
In December 2010, Patsy complained to the ARDC about Respondent. (Tr. 50, 113). Patsy then contacted Respondent and told him about the ARDC. Chester Slaughter, an attorney on behalf of Respondent, called Patsy. (Tr. 49, 115, 148-49). According to Patsy, Mr. Slaughter told her they would return her money in a couple of weeks and that Lance's case was not over yet. (Tr. 49, 66-67). Respondent testified that Mr. Slaughter offered to return the $10,000 to Patsy, but she was angry and refused to accept it. (Tr. 115, 149).
Evidence Offered in Aggravation
When Respondent first began representing Lance, he was provided with a copy of Lance's trial and sentencing transcripts. Lance made numerous requests that the transcripts be returned and even informed Respondent that he needed his transcripts to move forward with his post-conviction petition. (Adm. Ex. 10; Adm. Ex. 16 at 14, 23, 30). Yet, as of the hearing in this matter, Respondent had not returned the transcripts. (Tr. 144-45; Adm. Ex. 16 at 23, 30). Consequently, Lance sent a letter and filed a number of pro se motions with the Circuit Court of Cook County requesting copies of his trial transcripts and common law record. Although Lance's motion was granted on May 3, 2011, he still had not received copies of the transcripts. (Adm. Ex. 15 at 1, 3, 5, 7-8, 11; Adm. Ex. 16 at 30-31).
After Lance had been notified by the Appellate Court that his case had been dismissed and the Appellate Court no longer had jurisdiction over his appeal, he contacted Respondent and requested the $10,000 be refunded so he could then afford to pursue "other avenues." Although Respondent agreed to return the $10,000, the money had not been received prior to Lance's evidence deposition. Consequently, Lance and Patsy did not have the money to hire another attorney to review Lance's case. (Adm. Ex. 16 at 28-29).
Lance testified that as a consequence of Respondent's representation, he will never again trust another attorney. (Adm. Ex. 16 at 31-32).
Respondent's conduct has adversely affected Patsy who suffers from depression. She believes Respondent took advantage of her causing her depression to continue. (Tr. 48, 54-56).
Further, Respondent's conduct affected Patsy financially. She intended to use her SSDI back pay to get back on her feet, but instead she sacrificed her needs to help her son by hiring Respondent. According to Patsy, her sacrifice did not help her son because he never had his "day in court." (Tr. 56).
While acknowledging that just prior to the hearing she received $3,500 from Respondent, Patsy testified that she did not feel restitution had been made as Respondent did not do anything for the money he received and had not yet returned and Lance never got his "day in court." Additionally, Respondent's conduct has had a negative impact on Patsy as she no longer trusts anyone. (Tr. 53-57).
On January 25, 1995, pursuant to a petition to impose discipline on consent, the Court suspended Respondent for two years, with all but six months of the suspension stayed by
probation with conditions, which included paying $9,960 in restitution and participating in a law office management program. In re Bates, 94 CH 691, M.R. 10667 (Jan. 25, 1995). From 1988 to 1992, Respondent neglected the legal matters of ten clients and made false representations to some of his clients about the status of their matters. Additionally, Respondent failed to inform two clients that their cases had been dismissed.
On November 20, 2007, the Court again suspended Respondent for one year and until a $17,000 malpractice judgment was paid, with all but six months of the suspension stayed by a two-year period of probation with conditions, provided Respondent paid the malpractice judgment. In re Bates, 06 CH 68, M.R. 21954 (Nov. 20, 2007). This sanction resulted from the neglect of three client matters spanning from October 1998 to May 2006. One matter was dismissed and a judgment was entered against Respondent's client in another matter as a result of Respondent's failure to appear in court on behalf of his clients. In both matters, Respondent failed to inform his clients of the adverse results of his neglect. In a third matter, Respondent failed to file his client's personal injury claim within the requisite time period, and consequently, the claim was time barred.
Evidence Offered in Mitigation
Respondent graduated from John Marshall Law School in February 1980. After law school, Respondent worked for Cornelius Toole on a number of civil rights cases, as well as the Pontiac prison riot trial, which he classified as the then largest death penalty case ever in Illinois. Additionally, Respondent volunteered on the NAACP's legal redress committee, and between 1991 and 1996 was President of the south side branch of the NAACP. (Tr. 88-91). Respondent is not currently involved with the NAACP. (Tr. 154).
Respondent acknowledged his obligation to return the $10,000 to Patsy, because he was unable to file Lance's brief. (Tr. 114). Just prior to the hearing in this matter, Respondent paid Patsy $3,500 and transmitted the remaining $6,500 to his attorney.1 (Tr. 116-17).
According to Respondent, he is sad and remorseful because he wanted to be able to file a credible appeal and was unable to do so. Additionally, Respondent testified that he is sorry that Patsy and Lance were dissatisfied with him and acknowledged that his work on Lance's case was unsatisfactory. (Tr. 117-18). Respondent also testified that he cooperated in his disciplinary proceedings by doing what was required of him, which included appearing at all sworn statements and depositions. (Tr. 116).
Pamela Veal, a Circuit Court of Cook County Judge since 2004, first met Respondent around 1986 when she interned at the NAACP. At that time, Respondent was the "right-hand person" to the gentleman who headed-up the organization. After Judge Veal's internship ended, she continued to maintain contact with Respondent. Throughout Judge Veal's legal career, Respondent has given her advice, and she considers him her mentor. (Tr. 68-71).
According to Judge Veal, Respondent is a very honest individual who is not afraid to speak the truth. Respondent has both appeared in Judge Veal's courtroom and has represented Judge Veal in a business transaction, and has demonstrated that he is fair, honest, and a person of his word. Additionally, among lawyers and judges, Respondent has a reputation of being an extremely honest person who is very fair in his dealings. (Tr. 70-73).
Prior to testifying, Judge Veal read the ARDC Complaint in this matter. Judge Veal is also aware of Respondent's prior disciplinary cases. She was still willing to testify on Respondent's behalf, which is something she is not willing to do for many people. (Tr. 73-74).
Fredrenna Lyle, a Cook County Circuit Court Judge since December 2011, has known Respondent since they were classmates at John Marshall Law School. (Tr. 82-83). They are both members of the Cook County Bar and have mutual friends. (Tr. 84).
Judge Lyle testified that Respondent has a very good reputation for honesty, integrity, truth, and veracity. She specifically testified that Respondent is a truthful, considerate, and reliable person. Judge Lyle acknowledged that she was not able to read the ARDC Complaint or Respondent's Answer in this matter. Additionally, Judge Lyle did not read Respondent's prior disciplinary reports or orders. (Tr. 84-86).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator has the burden of proving the misconduct charged by clear and convincing evidence. Ill. Sup. Ct. R. 753(c)(6); In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). Clear and convincing evidence means a degree of proof which, considering all the evidence, produces a firm and abiding belief it is highly probable the proposition at issue is true. Cleary & Graham, Handbook of Illinois Evidence, sec. 301.6 (9th ed. 2009). It is the responsibility of the Hearing Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based on all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300 (1993).
With the above principles in mind and after careful consideration of the evidence presented, we find the Administrator proved by clear and convincing evidence that Respondent: 1) failed to act with reasonable diligence and promptness when representing a client; 2) failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; 3) engaged in conduct involving misrepresentation; 4) failed
to refund promptly any part of a fee paid in advance that has not been earned; and 5) engaged in conduct which is prejudicial to the administration of justice, in violation of Rules 1.3, 1.4(a), 8.4(a)(4), 1.5(a) and 8.4(a)(5) of the 1990 Illinois Rules of Professional Conduct (Rules) and Rules 1.3, 1.4(a)(3), (4), 8.4(a)(c), and 8.4(d) of the 2010 Rules. We do not, however, find that Respondent charged an unreasonable fee, in violation of Rule 1.5(a) of the 1990 Rules 2
In March 2009, Respondent agreed to represent Lance in his criminal appeal and received $10,000 in attorney's fees. The evidence shows that initially Respondent did some work on Lance's appeal. However, after Respondent's first motion requesting an extension was granted, he knew he had until June 12, 2009, to file Lance's brief. Respondent did not promptly file Lance's brief, and therefore, disregarded the court imposed deadline. After his second motion for an extension was denied, he did not file a motion to reconsider or a motion to file the brief instanter.
Respondent's lack of diligence continued into December 2009 as Respondent still had not filed anything on Lance's behalf since June 10, 2009. Even after the Appellate Court dismissed Lance's case for want of prosecution on December 9, 2009, Respondent took no action.
Respondent waited until May 2, 2011, over a year after Lance's case had been dismissed and after Respondent had been notified of the ARDC investigation, to attempt to file an appellate brief on Lance's behalf. After considering all the evidence presented, we find Respondent failed to act with reasonable diligence and promptness in violation of Rule 1.3 of the 1990 and 2010 Rules.
Respondent asserts that despite the denial of the second motion for an extension of time and the dismissal of Lance's appellate case, he continued to work on two different briefs for Lance and intended to file the final brief instanter. According to Respondent, Lance initially
rejected both briefs, which added to the delay. We do not credit Respondent's testimony that he drafted a brief prior to December 2009 and reviewed it with Lance during his second visit. Not only did Lance testify that Respondent did not show him a brief during his second visit, but Respondent did not enter that brief into evidence at the hearing.
With respect to the brief received into evidence, Respondent brought this brief to Lance nearly two years after he had been hired to represent Lance, after Lance's appellate case had been dismissed, and after Respondent learned that Patsy had complained to the ARDC. Further, he did not attempt to file this brief until May 2011.
We also find Respondent failed to notify Lance about significant adverse developments in his case. According to Lance's testimony, which we credit, Respondent neither informed him that the second motion requesting an extension of time was denied nor that his case had been dismissed for want of prosecution.
While there is no dispute Respondent informed Lance that his appellate brief would have to be filed instanter, Lance's testimony, which is corroborated by his letters to both Respondent on June 14, 2010, and the Appellate Court on December 29, 2010, makes clear he did not understand the posture of his case or what "filing instanter" meant. We find Lance's lack of understanding attributable to Respondent as Lance made numerous requests for such information. It appears from the record that Respondent had a difficult time clearly conveying bad news to Lance and, consequently, failed to address with Lance the most important developments in his case. Effective communication between an attorney and his client regarding the status of his case is essential so that the client can make intelligent decisions about his case. See In re Ring, 141 Ill. 2d 128, 140, 565 N.E.2d 983 (1990). We find Respondent's conduct deprived Lance of his right to make such decisions.
In addition, Respondent failed to promptly comply with Lance's frequent requests for copies of his transcripts. There is no dispute that Lance asked Respondent for copies of his trial and sentencing transcripts on numerous occasions. For reasons that are unclear, Respondent failed to provide him with these transcripts. Accordingly, we find Respondent violated Rule 1.4(a) of the 1990 Rules and Rules 1.4(a)(3) and 1.4(a)(4) of the 2010 Rules.
While representing Lance, Respondent was in frequent communication with both Lance and Patsy. The evidence shows that during these communications, he misled them as to the status of Lance's case. Despite knowing the second motion for an extension of time had been denied and Lance's case had been dismissed for want of prosecution, Respondent failed to convey the true posture of Lance's case to Lance and Patsy. Instead, Respondent continued to assure them that the case was going well and that a brief could still be filed. Even after Lance learned that his case had been dismissed and confronted Respondent with this information, Respondent still tried to convince him that his appellate brief could be filed instanter. We find Respondent's failure to disclose key case developments with Lance and his constant assurances to Lance and Patsy that Lance's case was going well, when the evidence makes clear it was not, constitute misrepresentations in violation of Rule 8.4(a)(4) of the 1990 Rules and Rule 8.4(d) of the 2010 Rules. See Ring, 141 Ill. 2d at 143 (holding that Ring's failure to inform his client that his client's criminal appeal had been dismissed amounted to conduct involving dishonesty, deceit or misrepresentation).
We also find Respondent's misconduct, as outlined above, prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the 1990 Rules and Rule 8.4(d) of the 2010 Rules. Respondent's inaction deprived Lance of his constitutional right to appeal his criminal conviction. See generally Ring, 141 Ill. 2d at 145. Further, Respondent's failure to keep
Lance informed about the status of his criminal appeal and promptly comply with Lance's requests for court documents and transcripts have prevented Lance from pursuing other potential post-conviction remedies and have required him to file pro se motions with the Appellate Court. See In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008) (Hearing Bd. at 34) (finding Verett's conduct prejudicial to the administration of justice as it delayed the court matter and caused additional motions to be filed and court orders to be entered).
We find Respondent failed to refund promptly any part of a fee paid in advance that has not been earned in violation of Rules 1.16(d) of the 2010 Rules. In March 2009, Patsy paid Respondent $10,000 to represent Lance with respect to his criminal appeal. Respondent understood he had been employed to file an appellate brief on behalf of Lance. Since Respondent never filed the brief and Lance's case was dismissed, Respondent recognized, and we agree, that he owed Patsy a refund. Despite this, Respondent testified that he did not immediately refund the $10,000 because Patsy said she did not want the money. Standing alone, we find this explanation incredible. In addition, it was contradicted by Patsy's testimony at hearing. Although we recognize that just prior to the hearing Respondent paid Patsy $3,500 and paid $6,500 to his attorney, who shortly after the hearing transmitted the $6,500 to Patsy, this in no way can be considered a prompt refund.
We do not find the Administrator proved by clear and convincing evidence that in March 2009 Respondent's fee of $10,000 was unreasonable. The Administrator failed to introduce any evidence with relation to this charge. Consequently, no misconduct can be found with respect to Rule 1.5(a) of the 1990 Rules.
In determining the sanction to recommend, we consider the facts and circumstances of this case, while mindful that the disciplinary system seeks some consistency in sanctions in similar cases. In re Ingersoll, 186 Ill. 2d 163, 177-78, 710 N.E.2d 390 (1999); In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). The purpose of discipline is also taken into account. The purpose is not to punish the individual respondent, but "to protect the public, to maintain the integrity of the profession, and to protect the administration of justice from reproach." In re Gorecki, 208 Ill. 2d 350, 360, 802 N.E.2d 1194 (2003). We also consider the nature of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. Gorecki, 208 Ill. 2d at 360-61.
In aggravation we consider, the harm caused by Respondent's inaction. As a consequence of Respondent's misconduct, Lance's appeal was dismissed for want of prosecution. Respondent's inaction deprived Lance of his constitutional right to appeal his criminal conviction. The Supreme Court has recognized that since this type of harm "is less susceptible to monetary valuation or remedy than the loss of a civil suit for damages, more severe discipline is appropriate to deter neglect in criminal cases than in civil cases." See In re Ring, 141 Ill. 2d 128, 145, 565 N.E.2d 983 (1990). Further, Respondent's failure to provide Lance with copies of his transcripts has delayed Lance in seeking any alternative post-conviction relief and required Lance to file pro se motions with the Appellate Court, which has needlessly burdened both the court and Lance.
Additionally, Patsy was negatively affected by Respondent's misconduct. While Patsy ultimately received a refund of the $10,000 retainer fee she paid Respondent, she was without
that money for approximately two years. In addition, after contacting the ARDC about Respondent, Patsy had to wait another year for her refund, which she ultimately received in full after the hearing in this matter. Given Patsy's poor financial circumstances, the deprivation of this money had a significant impact on her. Moreover, Patsy, after having paid Respondent, did not have the financial means to hire another attorney to represent her son, which has also delayed Lance in seeking post-conviction relief. Furthermore, the legal profession was clearly harmed by Respondent's conduct, as evidenced by Lance's testimony that he will never again trust another attorney and Patsy's testimony that she no longer trusts anyone.
Finally, an attorney's prior discipline for similar misconduct is often considered a significant aggravating factor in determining the appropriate sanction. See In re Guilford, 115 Ill. 2d 495, 506, 505 N.E.2d 342 (1987). In January 1995, Respondent was suspended for two years, with all but six months of the suspension stayed by probation with condition, for neglecting the legal matters of ten clients and making false representations to some of his clients about the status of their cases. Then in November 2007, Respondent was again disciplined for misconduct strikingly similar to the misconduct which was the basis for his then prior discipline and the proven misconduct in this matter. Respondent neglected three client matters and failed to inform his clients about the status of their cases. Consequently, Respondent was suspended for one year and until a malpractice judgment was paid, with all but six months of the suspension stayed by a two-year period of probation with conditions, provided Respondent paid the malpractice judgment. Notwithstanding Respondent's previous disciplinary sanctions, the proven misconduct demonstrates that Respondent continued to engage in the same type of behavior. Even more troubling is the fact that Respondent's current misconduct occurred when he was still on probation for his previous misconduct. (Tr. 150). Consequently, we find his prior discipline
and the fact that he was on probation at the time of the instant misconduct significantly aggravating.
In mitigation we consider the evidence of Respondent's good character and reputation and the fact that he cooperated in these proceedings. See In re Lunardi, 127 Ill. 2d 413, 423, 537 N.E.2d 767 (1989); see also In re Clayter, 78 Ill. 2d 276, 283, 399 N.E.2d 1318 (1980). We also consider Respondent's expression of remorse and acknowledgement of wrongdoing as a mitigating factor. See In re Mason, 122 Ill. 2d 163, 173-74, 522 N.E.2d 1233 (1988). Further, we consider Respondent's payment of restitution in mitigation, although we recognize that Respondent's payment of restitution was not prompt. See In re Marsh, 96 CH 632, M.R. 15445 (Feb. 1, 1999) (Review Bd. at 13). We decline, however, to give Respondent's previous volunteer work with the NAACP substantial weight in mitigation as he is not currently involved with the organization.
The Administrator recommends Respondent be suspended for two years and until further order of the Court. Conversely, Respondent argues that a thirty-day to six-month suspension is a more appropriate sanction
According to the Supreme Court, "[w]hile uniformity in attorney discipline is desirable, each case presents a unique factual situation and must therefore be carefully evaluated on its own merits." Guilford, 115 Ill. 2d at 502. After considering Respondent's misconduct and the aggravating and mitigating evidence, as well as the cases cited by the parties, which we find generally distinguishable, we recommend Respondent be suspended for eighteen months.
Given the significant evidence in aggravation, we strongly disagree with Respondent's argument that a six-month suspension or less is appropriate. The cases cited by Respondent contain either more mitigating evidence or less aggravating evidence than the present case,
which supports the less severe sanction. Unlike the attorneys in these cases, Respondent was previously disciplined on two prior occasions and has, unfortunately, to date been unable to comply with his ethical obligations. Moreover, Respondent did not enter any evidence of recent pro bono work or community service. Also, Respondent's misconduct involved dishonesty, while in almost all the cases cited by Respondent there were no findings of dishonesty. Ring, 141 Ill. 2d at 128 (neglecting criminal appeal, failing to inform client, and having no prior disciplinary record warranted six-month suspension); In re Draper, 07 CH 46, M.R. 22644 (Nov. 18, 2008) (considering numerous factors in mitigation as well as prior discipline attributable to substance abuse, Court suspended attorney for thirty days for neglecting a criminal appeal); In re Rascia, 04 CH 35, M.R. 21229 (Nov. 17, 2006) (neglecting three criminal appeals and failing to supervise an associate warranted three-month suspension considering significant mitigation, lack of prior discipline, and absence of dishonesty); In re Faraci, 04 CH 36, M.R. 19750 (Nov. 17, 2004) (neglecting three criminal appeals warranted three-month suspension given significant mitigation and no prior discipline); In re Walsh, 02 CH 44, M.R. 18753 (Sept. 19, 2004) (considering numerous mitigating factors as well as prior misconduct for similar actions, Court suspended attorney for thirty days for neglecting a criminal appeal).
The Administrator cites Guilford, 115 Ill. 2d at 495; In re Gertzman, 09 CH 100, M.R. 24622 (Sept. 26, 2011); In re Gomric, 96 SH 216, M.R. 14271 (Jan. 29, 1998) in support of a two-year suspension and until further order of Court. While recognizing at the onset that Respondent's misconduct, especially in light of his prior discipline, is unacceptable and consequently warrants a significant sanction, we believe both Gomric and Gertzman involve misconduct that is more serious than that at issue in the present case or misconduct that is aggravated by additional circumstances. For example, the attorney in Gertzman was suspended
for two years and until further order of the Court for neglecting one client matter and failing to refund promptly the unearned legal fees advanced by his client. Gertzman, 09 CH 100. In support of this sanction, Gertzman's lack of cooperation with the disciplinary proceedings and his three prior disciplinary cases for similar misconduct were considered in aggravation. Specifically, Gertzman failed to answer the Administrator's complaint and failed to participate in a number of pre-hearing conferences. The Hearing Board Report noted that Gertzman's conduct was reminiscent of his conduct in his second disciplinary case, where he walked out of the hearing because he was not granted a continuance. Gertzman, 09 CH 100 (Hearing Bd. at 12-13). Certainly, Gertzman's behavior demonstrated a lack of respect for the disciplinary process, which affected his ultimate sanction.
Both Gertzman and Gomric were disciplined on three prior occasions, which the Court has recognized as considerably more aggravating and, consequently, has required such an attorney to demonstrate his fitness before returning to practice. Id.; Gomric, 96 SH 216; see also In re Nash, 07 CH 68, M.R. 2329 (Nov. 17, 2009) (suspending Nash for thirty months and until further order of the Court in his fourth disciplinary proceeding); In re Howard, 99 CH 34, M.R. 17965 (Mar. 22, 2002) (suspending Howard for one year and until further order of the Court in his fourth disciplinary proceeding); In re Chapman, 92 CH 85, M.R. 9805 (Mar. 20, 1994) (suspending Chapman for five years and until further order of the Court in his fourth disciplinary proceeding). In contrast, when an attorney, like Respondent, has been disciplined on two prior occasions, the Court, while still considering the prior discipline in aggravation, has not necessarily subjected the attorney's sanction to "until further order of the Court." In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999) (suspending Howard, who had been disciplined on two prior occasions, for two years); Guilford, 115 Ill. 2d at 495 (suspending Guilford, who had been
disciplined on two prior occasions, for two years); In re Kink, 96 CH 420, M.R. 14306 (Jan. 29, 1998) (suspending Kink, who had been disciplined on two prior occasions for eighteen months).
We find the Guilford case, which was also cited by the Administrator, instructive as to the appropriate sanction as the Court declined to impose a suspension of "until further order of the Court." In Guilford, the Court suspended Guilford for two years for neglecting one client matter and making misrepresentations to his client regarding his case status. Similar to the present case, the Administrator requested that Guilford's sanction be subjected to "until further order of the Court" because of Guilford's two prior disciplinary cases for similar misconduct. The Court, however, distinguished the cases cited by the Administrator and, despite Guilford's initial disregard for the disciplinary proceedings, declined to impose the Administrator's requested sanction. Guilford, 115 Ill. 2d at 495;
Similar to Guilford, we do not believe Respondent's misconduct warrants a suspension of "until further order of the Court" as the Administrator proposes. Respondent has cooperated with his disciplinary proceedings, expressed remorse, presented favorable character testimony, and paid restitution. The Supreme Court has recognized that after disbarment, a suspension until further order of the Court is the most severe sanction that can be imposed on an attorney. In re Timpone, 208 Ill. 2d 371, 386, 804 N.E.2d 560 (2004). After considering that Respondent's misconduct involved a single client matter and the evidence offered in mitigation, we are confident that Respondent's misconduct is not so egregious as to require such a severe sanction.
We do, however, recognize that Respondent's misconduct is deserving of substantial discipline, especially considering his prior discipline. Consequently, we recommend Respondent be suspended for eighteen months. We are confident this recommended sanction is appropriate in light of the goals of the disciplinary system, which are not to punish but rather to protect the
public and deter future misconduct. After considering Respondent's misconduct, the aggravating and mitigating evidence, and the relevant case law, we feel an eighteen-month suspension will impress upon Respondent the need to conform his future conduct to ethical standards and the public will be well protected.
W. Davis, Jr.
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 Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on October 5, 2012.
Kenneth G. Jablonski, Clerk of the
1 Subsequent to the hearing, Respondent's counsel forwarded the $6,500, via federal express, to Patsy, who acknowledged receipt of the money by calling Respondent's counsel. (Resp. of H. Bates to Adm. Rpt. of Prior Discipline at 2).
2 The Administrator also charged Respondent with three counts of engaging in "conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770." The Illinois Supreme Court recently stated that "Rule 770 is not itself a Rule of Professional Conduct" and "one does not ?violate' Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." In re Thomas, 2012 IL 113035, par. 92. Accordingly, based on the wording of the allegation in the Complaint before us, we find no violation of Rule 770.