Filed June 12, 2013
In re Kelly A. Saindon
Commission No. 2012PR00012
Synopsis of Hearing Board Report and Recommendation
The Administrator filed a one-count Complaint against Respondent alleging she misused funds belonging to a condominium association for which she served as president and treasurer. The Hearing Board determined that Respondent breached her fiduciary duty to the Association, used the funds for her personal benefit without authorization, and engaged in dishonest conduct.
In determining the appropriate sanction, the Hearing Board considered Respondent's misconduct, the fact she had been previously disciplined, her lack of genuine remorse and failure to understand her wrongdoing. The Hearing Board recommended that Respondent be suspended for two years, with reinstatement conditioned on her completion of the ARDC Professionalism Seminar and proof she has completed restitution.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
KELLY A. SAINDON,
Commission No. 2012PR00012
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on Monday, January 14, 2013 at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a hearing panel consisting of James B. Pritikin, Chair, and Donald A. Pettis, Sr.1 Tracy L. Kepler represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Kelly A. Saindon ("Respondent") appeared pro se.
On February 27, 2012 the Administrator filed a one-count Complaint alleging that Respondent, while serving as president and treasurer of the 420 North Noble Condominium Association, used funds belonging to the Association for her own benefit, without authorization from the Association and without advising the Association of her actions.
Respondent admitted some allegations, including the allegation that she used Association funds for her own business and personal purposes without authorization from the Association.
She denied other allegations and stated affirmatively that the condominium rules and bylaws do not specifically address the use of the Association's debit card and checkbook. Respondent denied engaging in any professional misconduct.
Respondent was charged with engaging in breach of fiduciary duty, conversion, and dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the 1990 Rules of Professional Conduct and Rule 8.4(c) of the 2010 Rules of Professional Conduct.
At the commencement of the hearing, Respondent informed the panel that she recently learned her attorney had withdrawn his appearance. She stated she was advised of that fact by counsel for the Administrator the previous Wednesday. Respondent denied receiving a copy of her attorney's motion to withdraw, which was filed on November 5, 2012, or the order granting the motion to withdraw, which was entered on November 14, 2012. She noted the motion was never delivered to her and the order was sent to an incorrect suite number. (Tr. 5, 13).
Respondent requested a continuance to re-engage her former counsel. Counsel for the Administrator opposed the request on the basis that the motion to withdraw had been granted two months earlier. Counsel also noted that witnesses had traveled from out of town to testify at the hearing. (Tr. 6).
The Chair of the hearing panel denied Respondent's request, stating that Respondent was aware she had not paid her counsel's fees and should have been in contact with her counsel during the two months prior to the hearing. We further note that Respondent, although being aware of her lack of representation several days prior to the hearing, did not file a written motion for a continuance, supported by an affidavit, as required by Commission Rule 272. (Tr. 7, 14).
The Administrator called Timothy Trostle, Sarah Trostle, Howard Weisman, Sonila Reci and Respondent as witnesses and submitted seven exhibits that were admitted into evidence. Respondent testified on her own behalf.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991).
Background and Admitted Facts
Between March 2007 and May 2010 Respondent served as president and treasurer of the 420 North Noble Street Condominium Association ("the Association") in Chicago. During that time the Association's members consisted of the owners of the condominium building's four units. Each owner's monthly association dues were between $125 and $150, with special assessments occasionally being charged. (Ans. par. 1, 2).
I. Respondent was charged with conversion.
A. Admitted Facts and Evidence Considered
As president and treasurer of the Association, Respondent had sole access and control of the Association's funds, which were held in JP Morgan Chase Bank, and had possession of the Association's checkbook and a debit card linked to the Association's account. Her duties as treasurer were to deposit assessments, pay condominium invoices and collect unpaid assessments. Respondent had access to the condo Association's online banking, and at any time
could check the balance, payments from the account, or deposits into the account. Respondent testified she was not the attorney for the Association. (Ans. par. 3; Tr. 92, 105, 111).
Timothy Trostle, currently a resident of Indianapolis, testified he owned a condominium unit at 420 North Noble from the summer of 2007 until June 2010. He stated that each of the four unit owners served on the condominium board and had an equal vote. Almost as soon as Trostle moved into the building, he became concerned that the Association's reserve fund was lower than it should be and the board members lacked access to bank records, budgets and bills. At condo board meetings, which were held infrequently after an initial meeting in the summer of 2007, Trostle asked to see financial items. He also made one phone call to Respondent at her office, but did not speak to her at that time. He recalled typically being told by Respondent that the documents were only available at her office, and he could visit during non-business hours. Trostle did not go to Respondent's office, but continued to make requests for information. He never saw copies of a budget, bank statements, or bills. (Tr. 18-19, 22-27).
Sonila Reci, a resident of 420 North Noble and treasurer of the condominium board since 2010, testified the condominium rules, regulations and bylaws require that records be shown to members of the Association at the place they are kept in the course of normal business. Reci does not distribute copies of invoices received by the Association, but would do so if a request were made. (Tr. 82, 85).
Sarah Trostle, an attorney, is currently employed with the Indiana Court of Appeals. In May 2008 Sarah moved into Timothy Trostle's Noble Street condominium unit, and they later married in July 2010. Sarah recalled a lot of friction between her husband and Respondent. In the summer of 2009 she spoke to another resident, Sonila Reci, who also had experienced difficulties in obtaining financial information from Respondent. At a condominium board
meeting in the spring of 2010, the board members who were present decided that Sarah and Reci would take over as officers. Sarah recalled that Respondent was not at the meeting but was contacted by e-mail and had no objection to the change in roles. (Tr. 30-34, 40).
Following the meeting, Sarah and Reci informed Respondent by e-mail that they wanted to meet and obtain the financial records for the Association. Sarah recalled that Respondent agreed, but then repeatedly canceled meeting dates. After Respondent failed to appear for a scheduled meeting at her office, Sarah and Reci went to Chase Bank and, after showing proof that they were officers of the Association, were able to review the records for the Association's account. Sarah was shocked when she saw how little money was in the account and that Respondent had used the Association debit card for personal purposes. (Tr. 34-38).
In the summer of 2010 Sarah and Reci called a meeting to inform the remaining unit owner, Brian Rigby, of their discovery. A few weeks later Sarah contacted an attorney who advised her to perform an accounting of all funds that went in and out of the Association account. Sarah then spent approximately 200 hours reviewing the account, making copies of checks written on the account, compiling spreadsheets reflecting disputed charges and preparing a report. For the period between March 31, 2008 and February 1, 2010, Sarah identified sixty-six disputed uses of the Association's debit card, including purchases made at Jewel, Nordstrom, Ann Taylor, Macy's, Southwest Air, 1260 Broadway Manhatten, Marc Anthony salon/spa, and an ATM withdrawal at Horseshoe Casino in Hammond Indiana. The disputed purchases and payments totaled $5,666.29. Sarah also noted the Association's account incurred bank charges and fees during Respondent's period of control, including fees for insufficient funds, extended overdrafts, and using a non-Chase Bank ATM. The bank records reflect that those charges totaled more than $200. (Tr. 37-44; Adm. Ex. 7).
Respondent admitted she used the Association's debit card to withdraw cash from the Association's account and to purchase goods and services for her own business or personal purposes, totaling at least $5,666.29. She further admitted that the Association did not authorize her to use the funds for her own business or personal purposes. (Ans. Par. 5, 6).
In correspondence to the ARDC in November 2011, Respondent agreed that her usage of funds was improper, but noted that the Association's rules and regulations, declaration, and bylaws were not strictly observed. Her letter further stated:
Arguably, as I was the only Board member, pursuant to the Declaration I could have approved compensation for myself as President. However, this did not happen and I do not want to insinuate I was entitled to be paid as a Board member of the Association. I am merely pointing out while I was wrong and have agreed to make the Association whole, there was not a prohibition from compensation with the Board being set up as it was.
(Adm. Ex. 6).
At hearing, Respondent testified she was standing by her statement in her November 2011 letter that nothing in the Association's rules, regulations or bylaws prevents compensation to a board member or usage of funds. She admitted, however, that the lack of such a prohibition did not make her actions right and stated she should not have used the Association funds for expenses. (Tr. 105-108).
Respondent did not disagree with a representation made by Administrator's counsel that, according to the Association bylaws, members of the board were not entitled to receive compensation for their services unless expressly authorized by the board with the approval of voting members having two-thirds of the total votes. Respondent noted at the time in question, she was the only voting member on the board. (Tr. 111).
Sarah Trostle, who succeeded Respondent as president of the condominium board, testified she never received compensation for serving on the board, and did not believe the bylaws authorized compensation. (Tr. 47).
B. Analysis and Conclusions
The Court in In re Rosin, 56 Ill. 2d 202, 206, 620 N.E.2d 368 (1993) defined conversion of funds as an "unauthorized act which deprives a person of his property permanently or for an indefinite time." Respondent admitted that she used funds belonging to the Association and that her actions were not authorized by the Association.
Despite Respondent's admission that the Association did not consent to her use of the funds, she noted that neither the condominium rules nor the declaration or bylaws expressly prohibited her from using the funds. She also raised the possibility that she was entitled to compensation as a board member. These points were not argued with any real conviction, nor do we consider them to be valid.
With respect to the documents governing the operation and management of the Association, we do not believe a specific provision was necessary to state what would be obvious to most people, that is, officers cannot use Association funds for their own personal purposes. As to the implication that Respondent's purchases could be interpreted as a form of compensation for her service to the Board, Respondent did not disagree with the Administrator's representation that any compensation had to be approved by a percentage of board members. While Respondent maintained she was the only board member during the time she used Association funds, that claim was contradicted by Timothy Trostle, who testified credibly that all unit owners were board members and he attended board meetings beginning in 2007.
We reject any suggestion that Respondent's use of funds was allowed by the condominium rules, bylaws or declarations. We find, based on the evidence and Respondent's
own admissions, that she converted funds belonging to the Association in the amount of $5,666.29.
II. Respondent is charged with engaging in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the 1990 Professional Rules and 8.4(c) of the 2010 Professional Rules.
A. Evidence Considered
We consider the previously summarized evidence relating to Respondent's use of the Association's debit card on sixty-six occasions for personal purposes. Respondent acknowledged she had sole access to the Association account, made all deposits, and was the only person who wrote checks and used the debit card. She also acknowledged she could check the monthly balance of the account from a computer. As reflected in the Association's monthly bank statements, Respondent made an ATM balance inquiry on July 28, 2009, at which time the account balance was $108.83. Between July 28 and the end of the month, three purchases were made with the debit card which, along with the monthly service fee, brought the account balance to exactly zero. Respondent's highest debit card expenditures occurred in September 2008 and totaled $1,920. The deposits to the account for that month were also higher than average, totaling $3,797 from assessments and special charges. (Tr. 92; Adm. Ex. 7).
In April 2011 Sarah Trostle expressed to the condo board the need to find an attorney who specialized in condo law. The board then retained attorney Howard Weisman to meet with Respondent regarding her possible misuse of Association funds. (Tr. 40, 44-45, 51-52).
On or about July 13, 2011, Weisman sent a letter to Respondent, by hand delivery to her law firm, asking for a meeting by August 19, 2011 to review the Association's concerns and resolve any issues. Weisman felt that five weeks was enough time for Respondent to receive the letter and schedule a meeting, but he received no response to the letter. Weisman also attempted to reach Respondent by telephone and e-mail, but was not successful. He did not recall receiving
an August 18, 2011 e-mail from Respondent stating she had received his letter and had left three voice messages for him, but acknowledged his office installed a new phone system at some time, and possibly Respondent left a phone message that was lost. (Tr. 54-58, 64, 66; Adm. Ex. 1).
In late August or early September 2011, Weisman issued a 30-day notice to Respondent for unpaid assessments. He recalled that the total amount of misappropriated funds and unpaid assessments was in the high $6,000 range. At some point, Weisman had one telephone call with Respondent. After that call, Weisman's associate, Ryan Janz, dealt primarily with Respondent. (Tr. 59-60, 67, 71).
Sometime after Weisman was retained by the board, Sarah Trostle reported Respondent's conduct to the ARDC. Sarah then left a binder with the information she had compiled regarding Respondent's use of the Association's funds, along with a letter, outside Respondent's door. She received no response from Respondent. (Tr. 46).
Respondent acknowledged receiving an August 23, 2011 letter from the ARDC and requesting additional time to respond. After receiving several extensions, she submitted a response in which she stated, among other things, that the PIN number for her personal debit/credit card at Chase Bank was the same as the PIN number for the Association's debit/credit card, and she had "erroneously used the Condominium card for personal items." (Tr. 95-98; Adm. Exs. 2, 3, 6).
At hearing Respondent acknowledged that some of her purchases involved online payments for which she would have had to look at the debit card and enter the number appearing on the card. She testified her use of the Association's debit card to make sixty-six payments was an "error in judgment." She further stated that whether or not she had authority to use the funds, her actions were stupid and did not demonstrate good judgment. (Tr. 94, 98, 108).
B. Analysis and Conclusions
We previously rejected the notion that Respondent was entitled to any of the Association funds as compensation for her services. Similarly, we reject any suggestion that her use of funds erroneously resulted from the fact the PIN number for her personal debit card was the same as the PIN number of the Association's debit card. That notion was effectively refuted, at least as to online purchases, by her admission that she had to type in the number appearing on the debit card when making the purchases. As to any of the other purchases, the sheer number of times the debit card was used belies any claim of an inadvertent mix-up of cards.
At hearing Respondent referred to her personal use of Association funds as an "error in judgment," but she fell short of admitting any outright dishonesty. We do not believe Respondent's actions were merely the result of poor judgment, as that phrase implies she may have acted without careful analysis or that she had reason, however slight, to believe her actions were correct. We saw no basis for any such assumption. On the contrary, the evidence showed a systematic pattern of using funds when they were available in the Association's account. Respondent's personal use of the Association's debit card on sixty-six occasions, coupled with evidence that she was not responsive to requests to discuss her purchases once they were discovered, indicates to us that she knew her actions were improper. We conclude, therefore, that Respondent, by using Association funds from March 2008 through the beginning of 2010, engaged in dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the 1990 Rules of Professional Conduct, and Rule 8.4(c) of the 2010 Rules of Professional Conduct.
III. Respondent is charged with breaching her fiduciary duty to the Association.
A. Evidence Considered
We consider the previously summarized evidence relating to Respondent's role as president and treasurer of the Association and the evidence regarding her use of Association
funds. In her capacity as treasurer Respondent was responsible for depositing assessments, paying invoices and collecting unpaid assessments. She acknowledged that, pursuant to the Illinois Condominium Act, she had a fiduciary duty to other condominium owners. (Tr. 111).
B. Analysis and Conclusions
As the Association's president and treasurer, Respondent was acting as a fiduciary in her dealings with the Association. See Davis v. Dyson, 387 Ill. App. 676, 692, 900 N.E.2d 698 (1st Dist. 1998) (condominium board directors owe a fiduciary duty to members of the association). The Illinois Condominium Property Act requires that officers and members of the board exercise the care required of a fiduciary of the unit owners. 765 ILCS 605/18.4.
Because of Respondent's fiduciary relationship to the Association, she was obligated to exercise loyalty and good faith in handling property of the Association and to act in the Association's best interests. In failing to protect the Association's funds and using those funds for her own benefit, she placed her own interests above those of the Association. We therefore find that she breached her fiduciary duties of loyalty, good faith and due care.2
EVIDENCE IN MITIGATION AND AGGRAVATION
Respondent acknowledged that a forcible detainer action was filed against her in 2004 for non-payment of rent, but noted the action was dismissed as frivolous. In 2005 another action was filed for non-payment of rent, but that suit was dropped because the landlord owed money to Respondent for personal items that were missing from the apartment building. In 2005 Respondent was sued by both The Empress Casino and Harrah's Casino, after demand letters had been issued, for bouncing checks. In 2006 the City of Chicago pursued an action against her for an unpaid parking ticket, which she paid when she became aware of it. In 2009 Respondent leased a Hummer at a cost of $700 per month, owed $175,000 in outstanding student loans,
which are now in deferment, and was sued for unpaid medical bills resulting in a judgment of $900 being entered against her. (Tr. 88-89, 100-102).
From January 15, 2008 to December 16, 2011 Respondent was a limited partner of the Belongia law firm. She took a monthly draw from the firm, which she then had to cover with fees from cases. When she left in 2011, she owed the firm almost $50,000, although cases were pending that could offset her draw. (Tr. 87).
At the time of hearing, Respondent was not current on her monthly mortgage payments of approximately $2,600, and a foreclosure action was filed against her in April 2012. As of July 2012, she was $3,000 in arrears on private loans. In the past five years, Respondent visited casinos approximately ten times and took funds ranging from $100 to $2,000 with her each time. (Tr. 88-89).
Respondent admitted she should not have used the Association's funds for expenses. She noted that whether or not her actions were allowed, her conduct was stupid and demonstrated bad judgment on her part. (Tr. 107-108).
After communicating with other board members and their attorney, Respondent entered into a settlement agreement with the Association, dated November 16, 2011. Pursuant to the terms of the agreement, Respondent acknowledged owing $7,560 and agreed to make monthly payments of $420, with the last payment due on May 1, 2013. She noted she agreed to repay all of the funds, inclusive of attorney's fees, even though she believed some of her charges were legitimate condominium expenses. Respondent testified she has made monthly payments in accordance with the agreement. (Tr. 99, 105; Adm. Ex. 4).
Respondent stated she apologized to the Association, and she offered a further apology if her actions reflected negatively on the legal profession. She noted that a significant period of
time has elapsed since her actions occurred and she has done everything possible to be an upstanding citizen. She denied having any other source of income. Although she has performed some voiceover work and has a website advertising voiceover services, she has never been compensated for that work. (Tr. 90, 105-16).
Respondent sits on the board of directors for Bridge to Success, volunteers her legal services for women and children at a homeless shelter, and is organizing charitable events for three individuals who have been diagnosed with cancer. (Tr. 106).
With respect to the settlement agreement of November 2011, Weisman acknowledged that Respondent made efforts to settle the matter prior to November. Regarding the settlement amount of $7,560, he recalled that Respondent's unauthorized withdrawals were in the mid-$5,000 to $6,000 range, and her unpaid assessments accounted for the remainder. (Tr. 60-63).
Weisman, in trying to keep his fees as low as possible, charged the Association $175 per hour for his services, for a total of approximately $2,000. That amount included updating the Secretary of State records for the Association. Weisman thought the settlement amount reflected a discounted amount for attorney's fees, but he had no information to dispute Respondent's claim that she paid 100% of the attorney's fees. (Tr. 64, 68, 70).
Sonila Reci, the current treasurer of the Association, signed the settlement agreement on behalf of the Association, and believed the $7,560 was comprised of amounts Respondent took from the account, her unpaid assessments, and all attorney's fees paid by the Association. Reci testified that Respondent had not completed payment, but is current in her installments. Reci recalled Respondent may have made late payments on two occasions, but also noted the
Association was very informal and it was not unusual for unit owners to be late with their assessments. (Tr. 76-81; Adm. Ex. 4).
On May 17, 2010 the Illinois Supreme Court allowed the Administrator's Petition for Discipline on Consent and suspended Respondent for thirty days for misconduct in relation to two client matters. In re Saindon, 08 CH 15, M.R. 23702 (May 17, 2010). As to the first matter, Respondent failed to pursue a client's landlord/tenant dispute, made false statements to her law firm regarding the status of the case, and submitted false billing records inflating her time. As to the second matter, Respondent failed to diligently pursue a client's discrimination claim and made false statements to a tribunal regarding her service of discovery requests on the opposing party.
Having concluded Respondent engaged in the misconduct charged in the Complaint, we must determine the appropriate discipline. In so doing, we keep in mind that the purpose of these proceedings is not to punish, but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill. 2d 178, 623 N.E.2d 300 (1993). Attorney discipline also has a deterrent value in that it impresses upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill. 2d 515, 645 N.E.2d 906 (1994).
In arriving at the appropriate discipline, we consider those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill. 2d 380, 583 N.E.2d 526 (1991). In mitigation, Respondent cooperated in these proceedings, has engaged in community and charitable activities, and provides legal services to women and children in homeless shelters.
Acknowledgements of misconduct and expressions of remorse are typically considered to be mitigating factors, (In re Cetwinski, 143 Ill. 2d 396, 406, 574 N.E.2d 645 (1991); In re Robinson, 08 CH 109 M.R. 24470 (May 18, 2011)), while lack of remorse is viewed as an aggravating factor. In re Lewis, 138 Ill. 2d 310, 347, 562 N.E.2d 198 (1990). Although Respondent acknowledged she used funds belonging to the Association and apologized for her actions, she also intimated that her conduct may have been permissible and characterized her decision as an error in judgment. Respondent's failure to fully recognize her wrongdoing, coupled with the fact that we did not perceive any genuine remorse on her part, suggests to us that she is still rationalizing her actions rather than accepting full responsibility for her conduct. That circumstance weighs in favor of a harsher sanction.
We consider several other factors that aggravate Respondent's misconduct. We heard evidence that she was experiencing financial problems both at the time she misappropriated the Association's funds and subsequent thereto, including the fact that legal actions had been filed against her for unpaid debts. In In re Uhler 126 Ill. 2d 532, 540, 535 N.E.2d 825 (1989) the Supreme Court considered the attorney's precarious financial condition as an aggravating factor in the mishandling of funds, as it jeopardized the potential for repayment. The evidence in this case showed that Respondent's repayment to the Association was still in progress at the time of the hearing, which was nearly three years after her last wrongful use of funds and nearly five years after she began converting the funds.
We also consider any harm or risk of harm that was caused by Respondent's conduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care"). Respondent's unauthorized purchases, plus the resulting fees due to overdrafts and insufficient funds, totaled
approximately $6,000. Since that amount represented nearly a year's worth of assessments from the four unit owners, Respondent's actions clearly jeopardized the Association's financial resources and its ability to tap into a reserve fund for any unusual or emergency expenditures. As further evidence of harm, we note that Sarah Trostle spent an estimated 200 hours deciphering Respondent's spending habits, and ultimately the Association had to retain an attorney in order to obtain a response from Respondent.
Finally, we were advised that Respondent was previously suspended for 30 days for neglecting two client matters, submitting false billing records, and making false statements to a court. See In re Blank, 145 Ill. 2d 534, 585 N.E.2d 105 (1991) (prior discipline has been considered by the Court to be a critical factor in determining discipline). Respondent argued that her prior discipline should not be accorded significant weight as it was imposed for misconduct that is dissimilar to the conduct now at issue, and the Court's prior order was entered after her conduct in the present case and therefore could not be expected to have a deterrent effect. We disagree with those propositions. Respondent's prior misconduct involved substantial dishonesty and, in particular, her exaggerated billings reflected a willingness to deprive an entity of funds rightfully belonging to it. As to the timing of the two disciplinary cases, while it is true that the Court's final order was entered several months after Respondent ceased using the Association's debit card, the prior case was commenced in 2008 and therefore was pending for a large part of the time Respondent was converting funds. Her involvement with the ARDC and the scrutiny of her conduct in that case should have caused her to inspect her overall behavior and proceed with the utmost caution. We further note that, even if Respondent were not a recidivist in the typical sense, we can consider the totality of misconduct in determining discipline. See In re Teichner,
104 Ill. 2d 150, 168, 470 N.E.2d 972 (1984); In re Brown, 04 CH 73, M.R. 22127 (Mar. 17, 2008) (Review Bd. at 16).
Discipline in conversion cases has ranged from censure to disbarment. In re Rotman, 136 Ill. 2d 401, 556 N.E.2d 243 (1990). Factors typically considered include the amount of money converted, whether a continuing pattern of misconduct is involved, the presence or absence of a dishonest motive, and the extent of mitigating and aggravating factors.
The Administrator has urged us to recommend disbarment and offered two cases involving attorneys who moved to strike their names from the master roll while complaints were pending against them. In In re Nicia, 84 CH 142, M.R. 3460 (1984), the complaint alleged that the attorney, while serving as treasurer of a local chapter of a bar association, used $9,130 belonging to the bar association by writing checks on the association's account on thirteen separate occasions. After the misappropriation was discovered, the attorney attempted restitution by writing two checks on two different accounts, but both were dishonored due to insufficient funds. No further attempts at restitution were noted. The complaint also alleged that the attorney neglected a client matter, misrepresented the status of the proceeding to his client, and failed to return an unearned fee.
In In re Wortmann, 95 CH 344, M.R. 11276 (May 26, 1995), the complaint alleged that the attorney, while serving as treasurer of a bar association, converted $9,809.72 belonging to the bar association. In addition, while serving as the administrator of two separate trusts, he converted $4,550 from one trust, and forged the signatures of two co-trustees of the other trust. He then falsely represented to a notary public that the signatures were authentic. The attorney ultimately repaid the bar association and trust in full.
Other cases involving conversions from a single source have resulted in lesser sanctions. For example, In In re Altman, 128 Ill. 2d 206, 548 N.E.2d 1105 (1989), the attorney was suspended for two years for converting $10,136.56 from his client after signing the client's name on the settlement check without the client's authority. Altman repaid the client within a few months. In In re Young, 2010PR0085, M.R. 24395 (Mar. 21, 2011) the attorney was suspended for two years on consent for removing $6,157 in trust funds from a custodial account to purchase a cashier's check, forging the name of the payee on the cashier's check and then using the proceeds of the check for his own benefit. He repaid the custodial account five years later, and subsequently made an additional payment for interest. In In re Doyle, 99 CH 100, M.R. 18071 (May 24, 2002), the attorney was suspended for one year and until he made restitution for using $7,000 of estate funds to pay personal and business expenses, including telephone bills, residential rent, and car repairs.
We do not view the present case as one that merits disbarment. Although it shares some similarities with Nicia and Wortmann, both of those cases involved additional misconduct not present in this case. In addition Respondent, unlike the attorneys in those cases, testified she has provided some charitable and pro bono services. We do believe, however, that a substantial suspension is warranted. Respondent was entrusted with the control of Association funds, and she betrayed that trust by repeatedly using the funds as her own. Her actions amounted to theft. We are disturbed that she did not appear to fully recognize or understand the wrongfulness of her actions, and that a substantial portion of the dishonest conduct in this case occurred at the same time she was involved in prior disciplinary proceedings alleging dishonest behavior.
Keeping in mind the purposes of the disciplinary process, we recommend that Respondent Kelly A. Saindon be suspended from the practice of law for two years. At the time
of hearing, Respondent was current in her installment payments to the Association, but was not scheduled to complete her payments until May 2013. As a condition to reinstatement, therefore, we recommend that Respondent be required to provide proof that she has, in fact, completed repayment as provided in her settlement agreement with the Association. Further, because we believe Respondent could benefit from a review of ethical principles, we recommend that she be required to complete the ARDC Professionalism Seminar prior to being reinstated.
James B. Pritikin
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 June 12, 2013.
Kenneth G. Jablonski, Clerk of the
2The Review Board, in a recent case, concluded that charges of fiduciary duty and conversion should not be brought in the absence of an attorney client relationship. In re Karavidas, 2009PR00136 (Review Bd., Dec. 28, 2012). That case is currently pending before the Illinois Supreme Court. We note that our findings in the present matter are consistent with previous orders of the Court imposing discipline for breach of fiduciary duty and conversion in situations outside the attorney client relationship. See e.g. In re Hearn, 07 CH 94, M.R. 23352 (Nov. 17, 2009) (attorney converted church funds while acting as pastor); In re Meersman, 09 SH 17, M.R. 23643 (March 16, 2010) (trustee breached his fiduciary duty to trust by converting funds).