BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

BERNARD JAMES CONWAY,

Attorney-Respondent,

No. 6194926.

Commission No. 2013PR00051

FILED --- May 23, 2013

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, James A. Doppke, Jr., pursuant to Supreme Court Rule 753(b), complains of Respondent, Bernard James Conway, who was licensed to practice law in the State of Illinois on May 7, 1987, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, and which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

COUNT I
(Neglect, failure to communicate, and failure to refund unearned fee
in relation to Dolores Nuccio
)

1. In March 2011, Respondent agreed to represent Dolores Nuccio in connection with a mortgage foreclosure case entitled Nationwide Advantage Mortgage v. Nuccio, et al., no. 10 CH 35791 (Circuit Court of Cook County). The case concerned property located at 5639 W. Cornelia (hereinafter "the Cornelia property"), which Nuccio and her mother owned and used as rental property.

2. Between March 2011 and July 2011, Nuccio paid Respondent a total of $1,898, representing $1,700 in fees and $198 for costs.

3. Between March 2011 and July 2011, Respondent communicated with Nuccio via email regarding case number 10 CH 35791. Also during that time, Respondent filed an appearance and answer on Nuccio's behalf in case number 10 CH 37591.

4. On May 26, 2011, an attorney for Nationwide Advantage Mortgage (hereinafter "Nationwide") filed a motion for summary judgment in case number 10 CH 35791. Although he received notice of the motion shortly after May 26, 2011, Respondent took no action in relation to it, and he did not communicate with Nuccio in any manner regarding the motion.

5. At a June 22, 2011 hearing at which Respondent did not appear despite having received notice of it, the Hon. Margaret A. Brennan granted Nationwide's motion for summary judgment, and entered a judgment providing, inter alia, that the Cornelia property would be sold by The Judicial Sales Corporation on September 26, 2011.

6. On August 20, 2011, Nuccio wrote to Respondent regarding a notice her tenants had received regarding the scheduling of the September 26, 2011 sale. Respondent did not respond to that communication in any manner, or otherwise take any action to protect Nuccio's interests. On August 28, 2011, Nuccio wrote Respondent another email message requesting that he contact her regarding the Cornelia property. Respondent did not respond to that communication in any manner, or otherwise take any action to protect Nuccio's interests on August 28, 2011 or at any time thereafter.

7. At no time between March 2011 and August 28, 2011 did Respondent perform sufficient services to entitle him to retain the entire $1,898 Nuccio had paid him.

8. At no time between March 2011 and May 22, 2013 (the date on which Panel C of the Commission Inquiry Board voted to authorize the filing of a complaint in this matter) did Respondent return to Nuccio any unearned portion of the $1,898 Nuccio had paid him.

9. On September 26, 2011, The Judicial Sales Corporation caused the Cornelia property to be sold to the Federal National Mortgage Association pursuant to the June 22, 2011 judgment of foreclosure and sale in case number 10 CH 35791, and, on January 5, 2012, the court in case number 10 CH 35791 entered an order entitling the Federal National Mortgage Association to take possession of the Cornelia property.

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

  1. failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);

  2. failure to reasonably consult with a client about the means by which the client's objectives are to be accomplished, in violation of Rule 1.4(a)(2) of the Illinois Rules of Professional Conduct (2010);

  3. failure to keep a client reasonably informed about the status of the matter, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010);

  4. failure to promptly comply with reasonable requests for information, in violation of Rule 1.4(a)(4) of the Illinois Rules of Professional Conduct (2010);

  5. failure to refund any advance payment of fee or expense that has not been earned or incurred, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct (2010);

  6. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  7. conduct which tends to bring the courts and the legal profession into disrepute.

COUNT II
(Neglect, failure to refund unearned fee, and dishonesty in relation to Shepard Swift)

11. In October 2005, Arthur G. Holstein, IV and Fred Brzozowski, Jr. invested $125,000 and $100,000, respectively, in Andfire, LLC, a Delaware business entity owned or operated by Jonathan Segal. Segal operated Andfire as an entity that owned or operated restaurants in Chicago, including P.J. Clarke's and Minnie's. Holstein and Brzozowski intended for their investments to fund the operations of Minnie's. At or about the same time that Holstein and Brzozowski invested in Andfire, at least five other investors - Shepard C. Swift, Luke Lincoln, Michael Lynch, Tuck Holman, and Peter Kiernan - each invested $25,000 in Andfire, also to fund the operations of Minnie's.

12. In or about August 2009, Respondent agreed to represent Holstein and Brzozowski in connection with their claims that Segal misappropriated the funds they had invested in Minnie's. On August 4, 2009, Respondent filed a complaint on Holstein's and Brzozowski's behalf in the Circuit Court of Cook County in relation to their claims against Segal. The Clerk of the Circuit Court received and docketed the matter as Holstein, et al. v. Andfire, LLC, et al., no. 09 L 9138.

13. Also in or about August 2009, Respondent agreed to represent Allen Konn, David Valentine, Rande Cruze, and SWR Investors LLC in connection with their claims that Segal had misappropriated funds that they had invested in the operations of P.J. Clarke's. On August 5, 2009, Respondent filed a complaint on behalf of Konn, Valentine, Cruze, and SWR Investors in the Circuit Court of Cook County in relation to their claims against Segal. The Clerk of the Circuit Court received and docketed the matter as Konn, et al. v. Conchas Chinas, LLC, et al., no. 09 L 9242.

14. Respondent participated in case number 09 L 9242 through and including March 25, 2010, when the court allowed him leave to withdraw from representing the plaintiffs. The Chicago law firm of Tishler & Wald represented the plaintiffs in case number 09 L 9242 thereafter.

15. On September 28, 2009, the law firm of Richard J. Prendergast appeared on behalf of Segal and his business entities in case number 09 L 9138, and on October 26, 2009, he filed a motion to dismiss the case pursuant to the Illinois Code of Civil Procedure, 735 ILCS 5/2-619.1. Although Respondent received the motion shortly after it was filed, he did not file a response to it on Holstein's or Brzozowski's behalf, or otherwise take any action in connection with case number 09 L 9138.

16. At a hearing in case number 09 L 9138 on November 5, 2009 at which Respondent appeared, the Hon. Barbara A. McDonald granted Segal's motion to dismiss the complaint, and gave Respondent leave to file an amended complaint on or before December 3, 2009. Judge McDonald further set the matter for a status hearing on January 6, 2010.

17. Respondent did not appear for the January 6, 2010 status hearing in case number 09 L 9138, although he was aware of it. Judge McDonald therefore entered an order on January 8, 2010 setting the matter for a further status hearing on March 17, 2010, and providing that "Plaintiff's or Plaintiff's counsel's failure to appear at the next status will result in the case being dismissed for want of prosecution." Respondent knew or should have known of the January 8, 2010 order shortly after it was entered.

18. In or about February 2010, Respondent agreed to represent Shepard C. Swift, Luke Lincoln, Michael Lynch, Tuck Holman, and Peter Kiernan (referred to in paragraph 11, above) in connection with their claims that Segal had misappropriated the funds they had invested in Minnie's. Specifically, Respondent agreed that he would amend the complaint in case number 09 L 9138 to add claims on behalf of Swift, Lincoln, Lynch, Holman, and Kiernan. In or about February 2010, Swift, Lincoln, Lynch, Holman, and Kiernan each paid Respondent $2,500 as a retainer fee for his services in connection with their claims.

19. On March 17, 2010, an attorney from Prendergast's firm appeared at the status hearing in case number 09 L 9138 on behalf of Segal, but neither Respondent nor anyone else appeared for the plaintiffs. Therefore, Judge McDonald dismissed case number 09 L 9138 for want of prosecution. Although he knew or should have known of Judge McDonald's dismissal of case number 09 L 9138 shortly after March 17, 2010, Respondent did not advise any of the Minnie's investors of the dismissal at any time after March 17, 2010.

20. In or about May 2011, the Minnie's investors contacted Respondent and requested that he provide information regarding the status of case number 09 L 9138, or of their claims against Segal generally.

21. On May 11, 2011, Respondent responded to the investors' request for information in an email message that he sent to each of the Minnie's investors. In that message, Respondent told the investors that he had been "piggy backing" their claims on the similar claims advanced by the P.J. Clarke's investors in case number 09 L 9242, and that the Minnie's investors would "get the benefit of the other group's legal efforts (and costs) by letting them take the lead. Where they prevail, we follow suit. In the event of a loss - we tailor our actions to avoid their mistakes." Respondent further stated that he would "look at the options of intervening in [case number 09 L 9242] directly on behalf of the Minnie's investors or at least using the [ ] pleadings [in case number 09 L 9242] to bolster the independent Minnie's action." Respondent further stated that "[his] inclination is that we will seek to intervene."

22. Respondent's statements in the May 11, 2011 email message were false, and Respondent knew that they were false, because case number 09 L 9138 had been dismissed on March 17, 2010, and because Respondent had not taken, and did not intend to take, any action to reinstate case number 09 L 9138 or to advance the claims of the Minnie's investors in any way.

23. At no time between May 11, 2011 and August 23, 2011, did Respondent take any action in connection with case number 09 L 9138, or to protect the interests of the Minnie's investors in relation to their claims against Segal or his business entities.

24. On August 23, 2011, Peter Kiernan, one of the Minnie's investors, sent an email message to Respondent in which he requested information regarding the status of case number 09 L 9138, or of the Minnie's investors' claims against Segal generally.

25. On August 29, 2011, Respondent responded to Kiernan's August 23, 2011 email in an email message he sent to each of the Minnie's investors. In that message, Respondent told the Minnie's investors, accurately, that case number 09 L 9242 was proceeding in discovery. Respondent further told the Minnie's investors that "if [the plaintiffs in case number 09 L 9242] prevail - Miinie's [sic] suit wins"; "[w]e are going to ultimately share their fate in the litigation"; and that "all that can be done for present [sic] is stay the course."

26. Respondent's statements in the August 29, 2011 email message were false, and Respondent knew that they were false, because case number 09 L 9138 had been dismissed on March 17, 2010, and because Respondent had not taken, and did not intend to take, any action to reinstate case number 09 L 9138 or to advance the claims of the Minnie's investors in any way.

27. At no time between August 29, 2011 and May 22, 2013 (the date on which Panel C of the Commission Inquiry Board voted to authorize the filing of a complaint in this matter) did Respondent take any action in connection with case number 09 L 9138, or to protect the interests of the Minnie's investors in relation to their claims against Segal or his business entities.

28. At no time between February 2010 and May 22, 2013 (the date on which Panel C of the Commission Inquiry Board voted to authorize the filing of a complaint in this matter) did Respondent perform sufficient services to entitle him to retain the entire $12,500 that Swift, Lincoln, Lynch, Holman, and Kiernan had paid him in connection with their claims against Segal or his business entities.

29. At no time between March 2011 and May 22, 2013 (the date on which Panel C of the Commission Inquiry Board voted to authorize the filing of a complaint in this matter) did Respondent return to Swift, Lincoln, Lynch, Holman, or Kiernan any portion of the $2,500 they had each paid him.

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

  1. failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);

  2. failure to reasonably consult with a client about the means by which the client's objectives are to be accomplished, in violation of Rule 1.4(a)(2) of the Illinois Rules of Professional Conduct (2010);

  3. failure to keep a client reasonably informed about the status of the matter, in violation of Rule 1.4(a)(3) of the Illinois Rules of Professional Conduct (2010);

  4. failure to refund any advance payment of fee or expense that has not been earned or incurred, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct (2010);

  5. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);

  6. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010); and

  7. conduct which tends to bring the courts and the legal profession into disrepute.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

James A. Doppke, Jr.
Counsel for the Administrator
One Prudential Plaza
130 E. Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  James A. Doppke, Jr.