Filed February 8, 2017

In re George Krasnik
Respondent-Appellee

Commission No. 2015PR00001

Synopsis of Review Board Report and Recommendation
(February 2017)

Respondent was charged in a one-count amended complaint with violating multiple Rules of Professional Conduct. The charged misconduct arose out of Respondent's drafting of a power of attorney and quitclaim deed at the request of a client. The client told Respondent that his friend, who was in the hospital, wanted to give the client his house and property, and asked Respondent to draft a power of attorney to enable the client to handle his friend's affairs. Without speaking to the client's friend or conducting any investigation of the friend's wishes or competency, Respondent drafted the documents requested by the client, who, using the documents, then withdrew all the money from his friend's bank account and took possession of his house.

Based on these events, the Administrator charged Respondent with failing to provide competent representation; failing to consult with a client concerning the objectives of the representation and means by which they are to be accomplished; failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; engaging in a conflict of interest; and permitting a person who employed and paid the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering the legal services, in violation of Rules 1.1, 1.2(a), 1.4(a)(2), 1.4(b), 1.7(a), and 5.4(c), respectively, of the 2010 Illinois Rules of Professional Conduct.

After a hearing, a majority of the hearing panel determined that Respondent owed no duties to the friend, and therefore could not be found to have committed the charged misconduct. It recommended that the amended complaint be dismissed. One hearing panel member dissented, finding that the friend was the intended third-party beneficiary of the attorney-client relationship and therefore that Respondent owed a duty to him, and had engaged in misconduct by failing to meet that duty.

The Administrator filed exceptions, challenging the majority's finding of no misconduct and arguing that Respondent should be suspended for 90 days for his misconduct.

A majority of the Review Board panel reversed the Hearing Board's finding of no misconduct. The majority found that the friend was an intended beneficiary of the attorney-client relationship between Respondent and his client, and therefore that Respondent owed a duty to the friend but failed to meet it. For his misconduct, the majority recommended that Respondent be reprimanded and required to complete the ARDC Professionalism seminar.

One member of the review panel dissented, agreeing with the hearing panel majority that the friend was not a third-party beneficiary of the relationship between Respondent and his client and therefore that Respondent owed no duty to the friend.

BEFORE THE REVIEW BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

GEORGE KRASNIK,

Respondent-Appellee,

No. 6201453.

Commission No. 2015PR00001

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

SUMMARY

Respondent was charged in a one-count amended complaint with violating multiple Rules of Professional Conduct. The charged misconduct arose out of Respondent's drafting of a power of attorney and quitclaim deed at the request of a client. The client told Respondent that his friend, who was in the hospital, wanted to give the client his house and property, and asked Respondent to draft a power of attorney to enable the client to handle his friend's affairs. Without speaking to the client's friend or conducting any investigation of his wishes or competency, Respondent drafted the documents requested by the client, who, using the documents, then withdrew all the money from his friend's bank account and took possession of his house.

Based on these events, the Administrator charged Respondent with failing to provide competent representation; failing to consult with a client concerning the objectives of the representation and means by which they are to be accomplished; failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; engaging in a conflict of interest; and permitting a person who employed and paid

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the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering the legal services, in violation of Rules 1.1, 1.2(a), 1.4(a)(2), 1.4(b), 1.7(a), and 5.4(c), respectively, of the 2010 Illinois Rules of Professional Conduct.

After a hearing, the Hearing Board issued a report and recommendation in which a majority of the hearing panel determined that Respondent owed no duties to the friend, and therefore could not be found to have committed the charged misconduct. It recommended that the amended complaint be dismissed. One hearing panel member dissented, finding that the friend was the intended third-party beneficiary of the attorney-client relationship and therefore that Respondent owed a duty to him, and had engaged in misconduct by failing to meet that duty. The dissenting member recommended that Respondent be reprimanded and required to complete the ARDC Professionalism seminar.

The Administrator filed exceptions, challenging the majority's finding of no misconduct and arguing that Respondent should be suspended for 90 days for his misconduct.

For the reasons set forth below, a majority of this Review Board panel reverses the Hearing Board's finding of no misconduct and finds, instead, that the friend was an intended beneficiary of the attorney-client relationship between Respondent and his client, and therefore that Respondent owed a duty to the friend but failed to meet it. For his misconduct, the majority recommends that Respondent be reprimanded and required to complete the ARDC Professionalism seminar. One member of this panel dissents, agreeing with the hearing panel majority that the friend was not a third-party beneficiary of the relationship between Respondent and his client and therefore that Respondent owed no duty to the friend.

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FACTS

Respondent graduated from law school in 1989. He has a solo practice at Milwaukee and Devon in Chicago. He handles mostly residential real estate work and most of his clients are Polish. Respondent's first language is Polish.

On April 1, 2011, Stanislaw Zabielski, whom Respondent had never before met, walked into Respondent's office without an appointment. Mr. Zabielski told Respondent that his childhood friend, Jan Muskala, was in the hospital and wanted to give Mr. Zabielski his home and power of attorney over his property. Mr. Zabielski told Respondent that he wanted Respondent to draft a quitclaim deed and power of attorney, with the power of attorney specifically allowing Mr. Zabielski to withdraw all of the funds from Mr. Muskala's account at PNC Bank.

The meeting lasted about 15 minutes. Mr. Zabielski paid Respondent between $200 and $300, and Respondent drafted a quitclaim deed transferring Mr. Muskala's home to Mr. Zabielski and a power of attorney making Mr. Zabielski Mr. Muskala's agent for property. Respondent used the Illinois statutory short form for power of attorney but added a clause allowing Mr. Zabielski, as agent, to withdraw all funds and close all accounts belonging to Mr. Muskala at PNC Bank and any other bank.

Respondent did not notarize the quitclaim deed or witness or notarize the power of attorney. He told Mr. Zabielski that the hospital would likely have a notary who could notarize the documents. On April 1, 2011, the power of attorney was notarized by Mark Stawiarski. On April 11, 2011, Mr. Zabielski brought the executed documents back to Respondent, and Respondent recorded the quitclaim deed at the Cook County Recorder's Office.

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At his hearing, Respondent testified that Mr. Zabielski did not tell him why Mr. Muskala was in the hospital, and Respondent did not ask. Respondent also did not ask why Mr. Muskala wanted a quitclaim deed and power of attorney. Respondent did not communicate with Mr. Muskala about his purported desire to transfer his home to Mr. Zabielski, to have Mr. Zabielski act as his agent under a power of attorney, or to allow Mr. Zabielski to withdraw funds from his bank accounts. Respondent did not meet or speak with Mr. Muskala or take any other action to determine his competency to enter into a contract or sign a power of attorney form.

Respondent testified that, at the time, he was somewhat concerned about Mr. Muskala's competency to execute the documents, but believed that a notary would have a duty to confirm that Mr. Muskala was of sound mind and understood what he was signing. (He now understands that a notary has no such responsibility.) Respondent also said he did not view Mr. Muskala as his client and did not believe it would have been proper for him to go to the hospital to speak with Mr. Muskala.

In early 2012, one of Mr. Muskala's caregivers contacted the Cook County Public Guardian's Office ("PGO") and reported that Mr. Muskala was being physically abused and financially exploited by Mr. Zabielski. The caregiver reported that Mr. Zabielski had broken into the home where Mr. Muskala was living - and which Mr. Zabielski now owned - and threatened the caregiver and Mr. Muskala, and locked Mr. Muskala in a bathroom for hours.

Mr. Muskala was 75 years old, had suffered a stroke, and was hospitalized as a result of the stroke and dementia at the time Respondent drafted the quitclaim deed and power of attorney at Mr. Zabielski's behest. A physician who examined Mr. Muskala in February 2012 opined that Mr. Muskala would not have been competent to execute the power of attorney and

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quitclaim deed in April 2011. 1 Mr. Muskala told the physician that he was forced to sign the documents at the hospital.

The PGO filed an emergency petition to become Mr. Muskala's temporary guardian on the grounds that Mr. Muskala was being physically abused and financially exploited by Mr. Zabielski. It obtained an order of protection against Mr. Zabielski and arranged for Mr. Muskala to move into a nursing home. After conducting an inventory of Mr. Muskala's possessions, the PGO learned that Mr. Muskala's only asset had been the PNC Bank account, but Mr. Zabielski had withdrawn all of the $133,000 that was in the account, using the power of attorney form that Respondent had prepared, and transferred the funds to his own account. He then spent all of the money, which was never recovered.

The PGO filed litigation to recover Mr. Muskala's home, and eventually did. It also filed a malpractice suit against Respondent, and obtained an $80,000 settlement from Respondent's malpractice insurer.

HEARING BOARD'S FINDINGS

A majority of the hearing panel noted that the Rules of Professional Conduct at issue in this matter involve an attorney's obligations and duties to a client. It found, however, that there was no attorney-client relationship between Respondent and Mr. Muskala, and that Mr. Muskala was not a third-party beneficiary of the attorney-client relationship between Respondent and Mr. Zabielski. Consequently, it found that Respondent owed no duty to Mr. Muskala and therefore did not violate the Rules of Professional Conduct. It recommended that the disciplinary complaint against Respondent be dismissed.

The third hearing panel member dissented, finding that Mr. Muskala was the intended beneficiary of Respondent's attorney-client relationship with Mr. Zabielski and

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therefore that Respondent owed him the same duty he would owe a client. Based on this finding, the dissenting member believed he violated the rules he was charged with violating. She recommended he be reprimanded and required to complete the ARDC Professionalism seminar.

ANALYSIS

The facts are not in dispute. The only question on appeal is whether Respondent owed a duty to Mr. Muskala such that he can be charged with misconduct for not meeting it. Whether an attorney owes duties to a non-client under the circumstances found here is a question of law. In re Estate of Powell, 2014 IL 115997, par. 14. This Board reviews questions of law under a de novo standard. In re Morelli, 01 CH 120 (Review Bd., March 2, 2005), at 10, approved and confirmed, No. M.R. 20136 (May 20, 2005); In re Edmonds, 2014 IL 117696, par. 36.

The Administrator argues that the hearing panel majority erred in finding that Respondent owed no duty to Mr. Muskala because Mr. Muskala was not the intended beneficiary of Respondent's attorney-client relationship with Mr. Zabielski. We agree that the hearing panel majority erred in its analysis and determination that Respondent owed no duty to Mr. Muskala. We find, instead, that Mr. Muskala was the intended beneficiary of Respondent's attorney-client relationship, and, as such, was owed the same duty that Respondent would owe to a client. By failing to meet his duty, Respondent violated the Rules of Professional Conduct as charged.2

Pelham v. Griesheimer, 92 Ill. 2d 13, 440 N.E.2d 96 (1982), is the seminal Illinois case on the issue of when an attorney will owe duties to a non-client. In that case, our Supreme Court held that the children of parties to a divorce action were not the intended third-party beneficiaries of the attorney-client relationship between the wife and her divorce attorney, but rather were, "at best, only incidental beneficiaries" of the wife's decision to hire the attorney to represent her in the divorce proceedings. Id. at 23. The court thus found that the wife's attorney

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owed no duties to the children, and that they could not sue him for legal malpractice. Id. The court stated that, "for a non-client to succeed in a negligence action against an attorney, he must prove that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party." Id. at 21 (emphasis added). It noted that the "key consideration" of the analysis is whether the attorney is "acting at the direction of or on behalf of the client to benefit or influence a third party." Id.

Respondent's drafting of the power of attorney form at Mr. Zabielski's behest falls squarely within Pelham's third-party-beneficiary rule. The primary purpose of Respondent's legal work for Mr. Zabielski was to benefit Mr. Muskala because, as a matter of Illinois law, an agent under a power of attorney - Mr. Zabielski - is required to act for the benefit of the principal - Mr. Muskala. See 755 ILCS 45/2-7(b) (2011) ("Whenever a power is exercised, the agent shall use due care to act for the benefit of the principal"). Moreover, the power of attorney required Mr. Zabielski to act only in the best interests of Mr. Muskala, not in his own interests. See Spring Valley Nursing Center, L.P. v. Allen, 2012 IL App (3rd Dist.) 110915, par. 12 (a person designated as an agent under a power of attorney has a fiduciary duty to the person who made the designation, and this fiduciary duty prohibits the agent from seeing or obtaining any selfish benefit for himself).

There is only one person the attorney-client relationship between Respondent and Mr. Zabielski was intended to benefit, and that was Mr. Muskala. Mr. Zabielski hired Respondent to create a legal document the sole purpose of which was to bind Mr. Zabielski to act for Mr. Muskala's benefit with respect to Mr. Muskala's property. Thus, under Pelham, Mr. Muskala was the intended beneficiary of Respondent's attorney-client relationship with Mr.

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Zabielski, and Respondent owed to Mr. Muskala the same duties he would owe to a client in connection with drafting the power of attorney.

Courts have applied this intended-beneficiary analysis to find a duty owed to a non-client where the primary purpose of the attorney's representation was to benefit the non-client. For example, in Schwartz v. Cortelloni, 177 Ill. 2d 166, 175, 685 N.E.2d 871 (1997), the Illinois Supreme Court found that an attorney who represented an appointed guardian acted for the primary benefit of the guardian's ward, because the guardian was obligated to act for the primary benefit of her ward.

Similarly, in Simon v. Wilson, 291 Ill. App. 3d 495, 510-11, 684 N.E.2d 791 (1st Dist. 1997), the appellate court found that legatees to a will were the intended third-party beneficiaries of the relationship between the attorney who drafted the will and his client. Moreover, it noted that third-party-beneficiary status is easier to establish when the scope of the attorney's representation involves matters that are non-adversarial, such as the drafting of a will.

In In re Estate of Powell, 2014 IL 115997, the Illinois Supreme Court held that an attorney hired by a decedent's personal representative to file a wrongful death action owed a duty to the decedent's disabled son in distributing the settlement funds. The Court reasoned that the purpose of a lawsuit filed under the Wrongful Death Act is to compensate the decedent's beneficiaries, and therefore that the primary purpose and intent of the attorney-client relationship between the attorney and the decedent's personal representative was to benefit the disabled son, as the decedent's beneficiary. The Court noted that the beneficiaries named in a wrongful death action are intended beneficiaries of the action rather than merely incidental beneficiaries, as was the case in Pelham, and therefore that the attorney's duty extends to them. Id. at pars. 9-21.

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We find Schwartz, Simon, and Powell to be analogous to this matter. Here, as in Schwartz, Mr. Zabielski was required to act for the benefit of Mr. Muskala, and therefore Respondent, too, was required to act for the benefit of Mr. Muskala. As with the will in Simon, the power of attorney in this matter was, at least ostensibly, a non-adversarial matter, which should make it easier to establish Mr. Muskala's third-party-beneficiary status. And, in this case as in Powell, the workings of a statute gave rise to the duty that the attorney owed to one whom the statute was intended to benefit. In Powell, the Wrongful Death Act's provisions that make damages exclusively for the benefit of the decedent's surviving spouse and next of kin triggered the duty owed by the attorney to the decedent's disabled son. Here, the Power of Attorney Act's provisions that require the agent to act exclusively for the benefit of the principal triggered the duty owed by Respondent to Mr. Muskala.

The hearing panel majority distinguished the foregoing cases from this one on the ground that, in those cases, "a statutory or fiduciary relationship existed between the client and non-client at the time the attorney was retained, thus making the primary and intended purpose of the attorney-client relationship apparent." (Hearing Bd. Report, at 12.) It likened this case, in contrast, to Harris v. Vitale, 2014 IL App. (1st Dist.) 123514, in which the court found the attorney owed no duty to a non-client.

In Harris, the attorney represented a client who was seeking to be appointed guardian of his mentally impaired mother. At the same time, the Public Guardian was also seeking to be appointed guardian of the mother. The mother opposed the appointment of her son as guardian and wanted the Public Guardian to be appointed instead. While the opposing petitions were pending, the attorney notarized his client's signature on a document that allowed the client to withdraw $95,000 from his mother's annuity. After being appointed guardian, the

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Public Guardian sued the attorney for legal malpractice, arguing that the attorney owed the mother a duty because the purpose of the guardianship that the attorney sought on behalf of her son was to protect and manage the mother's estate, thereby making her a third-party beneficiary of the attorney-client relationship between the attorney and her son. The appellate court rejected the argument, finding that the primary purpose of the attorney-client relationship was not to benefit the mother, but to obtain guardianship for the son in what amounted to an adversarial proceeding because of the opposing petitions and the preferences of the mother.

The hearing panel majority reasoned that, in Harris, the client was seeking to establish a fiduciary relationship, but none had been approved at the time of the attorney's actions that allowed the client to loot funds from the non-client's account. It implied that that is the reason the court found the attorney owed no duty to the mother. We find its reasoning erroneous. In Harris, the only factor discussed by the court is whether or not the primary purpose of the attorney-client relationship was to benefit the client's mother. The court found it was not. It made no mention whatsoever of the fact that no fiduciary relationship existed between the mother and son, other than to note that the purpose of the attorney-client relationship was to represent the son in an adversarial proceeding to obtain guardianship of the mother, which was not for her benefit because she opposed it.

Moreover, in Powell, Schwartz, and Simon, the existence of a fiduciary relationship between the non-client and the client at the time the attorney began representing the client played no part in the courts' reasoning. Rather, in each of those cases, the court followed the analysis set out in Pelham and determined that the primary purpose and intent of the attorney-client relationship was to benefit the third party. That reasoning is as applicable here,

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where Respondent's services effectively created the fiduciary relationship between Mr. Zabielski and Mr. Muskala, as it was in the other cases, where the fiduciary relationships already existed.

Finally, the hearing panel majority cited In re Bilal, 05 CH 87, M.R. 22687 (Jan. 20, 2009), as further support for its theory that an attorney owes no duty to a third party in the absence of an existing fiduciary relationship between the client and third party. But Bilal is factually and legally distinguishable from, and relevant only in contrast to, this matter.

In Bilal, this Board addressed misconduct charges against an attorney who was hired by a client to draft documents for a relative suffering from dementia. The client provided the attorney with an executed statutory short form power of attorney for property, which allowed the client to conduct transactions on behalf of the relative. The attorney relied on that power of attorney to draft, at the client's direction, a durable power of attorney, a living trust, and a warranty deed for the sale of the relative's home, without meeting or talking with the relative or determining the relative's competency or wishes.

The Review Board found that an attorney-client relationship existed between the attorney and relative because of the power of attorney, but that the attorney was acting in good-faith reliance on the power of attorney and was not aware of any fraud by his client, and therefore did not engage in misconduct by preparing the requested documents. (Review Bd. Report at 16-17.) It noted that the issue in that proceeding was not whether the power of attorney was actually valid, but whether it appeared valid when presented to the attorney. (Id. at 16.) It reasoned that the attorney was not involved in preparing the power of attorney, but was simply an "independent third party" when his client presented him with the signed, notarized power of attorney, and that third parties are not required to look behind a power of attorney to determine the extent of the principal's capacity to execute the document. (Id. at 17.)

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Unlike here, then, the issue in Bilal was not whether the relative was an intended beneficiary of the attorney-client relationship; rather, the relative was, by virtue of the existing power of attorney, the attorney's client. We found no misconduct because the attorney had no role in drafting the power of attorney but, instead, had relied in good faith on it to draft the documents requested by the client. Here, however, Respondent is not an "independent third party" who was presented and acted in accordance with what appeared to be a valid power of attorney. He drafted the power of attorney that allowed the agent to take the principal's house and loot his bank account.

As the hearing panel dissent stated, once Mr. Zabielski asked Respondent to draft a power of attorney naming Mr. Muskala as the principal, Mr. Muskala's status as intended beneficiary became apparent, because the very purpose of the power of attorney is to designate an agent to act for the principal's benefit in safeguarding and managing the principal's assets. The dissent noted that the statutory short form power of attorney, which Respondent used, even sets forth that obligation in the introductory paragraph, and that there can be no clearer identification of an intended beneficiary. We agree. We also wholeheartedly agree with her observation that Respondent "simply failed to consider the reality of the situation," and that "[t]he fact that he was contacted by and received his fee from Mr. Zabielski did not allow him to blindly provide the services requested without considering the person most affected by those services." (Hearing Bd. Report at 18.)

We emphasize that we are not creating a de facto rule that, in every case where an attorney is asked by a client to draft a power of attorney for a third party, the attorney must undertake an investigation to determine the competency and wishes of the third party. In many cases that may be required, but we can envision others where it may not be. Rather, we are

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simply asking attorneys to exercise the judgment and due diligence that each particular situation calls for.

We hold that, under the particular facts of this case, Respondent should have done more to determine Mr. Muskala's competency and wishes. For example, Respondent had never met Mr. Zabielski before he walked into Respondent's office; Respondent did not know Mr. Muskala, but knew he was in the hospital; Respondent knew Mr. Zabielski was not a family member of Mr. Muskala; and Mr. Zabielski asked Respondent to add a provision to the power of attorney that allowed him to empty Mr. Muskala's bank account. Given these facts, and others that should have raised a red flag to Respondent, it was incumbent on Respondent to do some due diligence to determine Mr. Muskala's competency and wishes, but he did nothing.

The Preamble to our Rules of Professional Conduct states that lawyers "play a vital role in the preservation of society." To fulfill this role, a lawyer must not allow the legal system to be used to take advantage of and harm others, particularly the most vulnerable in our society. We believe that our holding acknowledges this great responsibility imposed on lawyers by virtue of their profession and helps to ensure that they meet it.

Because we find that Respondent owed the same duty to Mr. Muskala that he would owe to a client, we also find that he violated the Rules of Professional Conduct as charged in the First Amended Complaint by failing to determine whether Mr. Muskala had the mental capacity to knowingly appoint Mr. Zabielski as his agent under a power of attorney, or whether he wished to have Mr. Zabielski act as his agent; failing to discuss the power of attorney with Mr. Muskala; engaging in a conflict of interest by representing Mr. Zabielski while owing a conflicting duty to Mr. Muskala; and allowing Mr. Zabielski to direct his professional judgment in rendering legal services for Mr. Muskala.

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SANCTION RECOMMENDATION

The Hearing Board's sanction recommendation is advisory. In re Ingersoll, 186 Ill. 2d 163, 178, 710 N.E.2d 390 (1999). In recommending a sanction, we consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence, In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003), as well as the deterrent value of the sanction, the need to impress upon others the seriousness of the misconduct, and whether the sanction will help preserve public confidence in the legal profession. In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000). The purpose of the sanction is not to punish the attorney but rather to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. Timpone, 157 Ill. 2d at 197. We seek to recommend a sanction that is consistent with sanctions imposed in similar cases, id., while also considering the unique circumstances of each case. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).

The Hearing Panel majority recommended the case be dismissed based on its finding of no misconduct. The dissenting member recommended Respondent be reprimanded and required to complete the ARDC Professionalism Seminar. The Administrator argues that Respondent should be suspended for 90 days for his misconduct.

In support of a 90-day suspension, the Administrator cites cases dealing with lawyers' indifference to their clients' welfare. See In re Marshall, 2010PR00129 (Review Bd., July 24, 2013), recommendation adopted, M.R. 26312 (Jan. 17, 2014) (suspension of six months and until restitution made where attorney breached fiduciary duty to client by failing to secure earnest money and engaged in conflict of interest by allowing his wife, who was real estate agent in the transaction, to receive commission on inflated sale price); In re Lofchie, 90 CH 370

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(Review Bd., Oct. 12, 1993), approved and confirmed in part, M.R. 9563 (Jan. 25, 1994) (suspension of six months and until restitution made where attorney representing seller and acting as escrow agent was found to have converted funds, breached his fiduciary duty to buyer, and engaged in constructive fraud by forfeiting buyer's earnest money after seller's deal fell through); In re Tepper, 126 Ill. 2d 109, 533 N.E.2d 838 (1989) (suspension of six months where attorney agreed to hold quitclaim deed in escrow until his client paid a debt, but while the client was away, followed the direction of a former client to record the quitclaim deed, thereby allowing the former client to file a partition claim against the client regarding the property covered by the quitclaim deed).

The Administrator acknowledges that each of these cases involves more egregious conduct - e.g., selfish motive, dishonesty, motive to benefit one client over another - than the present matter. He argues, however, that these cases are similar to the present matter in that the attorneys failed to protect a client's interests or subjugated one client's interests to another client's interests. Thus, he argues, they demonstrate that a short suspension is in order in this matter.

We find the cases cited by the Administrator not to be on point with this one, not only because the misconduct and aggravating factors in those cases are far more extreme than here, but also - and primarily - because we find that the legal principles underlying our finding of misconduct in this case were heretofore unsettled. We sympathize with the difficulty Respondent faced in determining what legal obligations he owed to Mr. Muskala. Consequently, while we find, as a matter of law, that Respondent owed the same duties to Mr. Muskala that he would owe to a client, and that he breached them, we believe any sanction other than a reprimand would be akin to punishment under the circumstances of this case.

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Accordingly, we recommend that Respondent be reprimanded for his misconduct. We also agree that Respondent would benefit from a review of his ethical obligations, and therefore recommend that he be required to complete the ARDC Professionalism seminar within one year of the Court's order imposing discipline in this matter.

CONCLUSION

For the foregoing reasons, we reverse the Hearing Board's finding of no misconduct in this matter, and find that Respondent engaged in the misconduct with which he was charged. For his misconduct, we recommend that Respondent be reprimanded, and that he be required to complete the ARDC Professionalism seminar within one year of the Court's order imposing discipline in this matter.

Respectfully Submitted,

Richard A. Green
Benedict Schwarz, II

Robert M. Henderson, dissenting:

I believe the hearing panel majority was correct in finding no misconduct in this matter. I agree with that majority's reasoning that, because a fiduciary relationship between Mr. Zabielski and Mr. Muskala did not yet exist at the time Respondent rendered services to Mr. Zabielski, Respondent owed no duty to Mr. Muskala at the time he performed the work requested by Mr. Zabielski. This factor distinguishes the present matter from the cases relied upon by my colleagues in their majority opinion. Absent any duty to Mr. Muskala, Respondent cannot be deemed to have violated the Rules of Professional Conduct as charged by the Administrator.

I find the hearing panel majority's reasoning on pages 11 through 13 of the Hearing Board Report particularly cogent and persuasive. There, it noted that, in Powell,

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Schwartz, and Bilal, "a statutory or fiduciary relationship existed between the client and non-client at the time the attorney was retained, thus making the primary and intended purpose of the attorney-client relationship apparent." (Hearing Bd. Report at 12.) But in Pelham, Gayle, and Harris, "no fiduciary relationship existed between the client and third party.  . . .  Similarly, in the present case no defined beneficial relationship existed between Zabielski and Muskala." (Id. at 12-13.) Based on these cases, the hearing panel majority found "no clear and convincing evidence that the primary purpose and intent of the attorney-client relationship between Respondent and Zabielski was to benefit or influence Muskala." (Id. at 13.)

As the hearing panel majority recognized, Respondent did nothing but prepare a document according to a statutorily-defined format. There is no suggestion that the document was prepared carelessly or inaccurately. The service Respondent provided his client was simply the preparation and delivery of a document that was not executed in Respondent's presence and might not have been executed for week, months, years, or ever.

I believe my colleagues' opinion will have negative and far-reaching ramifications beyond this matter. If a client asks a lawyer to prepare a power of attorney for the client's mother or father, must the lawyer investigate and determine whether the client's parent is competent to give power of attorney? When asked to prepare a power of attorney, must a lawyer anticipate all potential problems that could arise before preparing the power of attorney? Are we requiring a lawyer to both predict and prevent fault, even criminal conduct, by the client? Must the lawyer continually monitor to see that the third party is competent at some undetermined future date when the power of attorney is executed? Must the lawyer convince caregivers to provide information about the health of the third party without any evidence of the relationship between the lawyer and the third party? Under my colleagues' reasoning, the answer to these

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questions would be yes. The duties placed on lawyers by the majority's opinion are onerous and unreasonable.

I also am concerned that the majority's ruling will spell the end of affordable powers of attorney, and possibly even lawyer-prepared powers of attorney. Lawyers will be loath to take on potential liability if they are held responsible for their clients' actions. In this same vein, I believe the majority's opinion will establish an unreasonably high standard of practice that will be used in malpractice litigation.

Finally, I believe the majority's opinion creates an inherent conflict of interest. Under the majority's reasoning, a lawyer asked by a client to prepare a power of attorney on behalf of a third party must investigate his client's motives, inquire into the relationship between the client and third party, and determine the competency and wishes of the third party. Thus, the lawyer is essentially the servant of two masters - the client and the third party. To the extent the client's and the third party's interests diverge, or may later diverge at the time of execution, the lawyer is placed in a quandary and, more important, a conflict of interest. In fact, the majority found that Respondent engaged in a conflict of interest in this matter. I submit that, under the majority's analysis, a conflict will exist any time a lawyer is preparing a power of attorney form at the request of the person being given the power of attorney by another.

This is clearly a case in which the client, Mr. Zabielski, was guilty of very bad acts causing great harm to the third party, Mr. Muskala. But the magnitude of this harm should not serve to impose an onerous duty on attorneys who themselves have acted in good faith.

For these reasons, I would uphold the Hearing Board's finding of no misconduct and dismiss the complaint against Respondent.

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CERTIFICATION

I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on February 8, 2017.

Kenneth G. Jablonski, Clerk of the
Attorney Registration and Disciplinary
Commission of the Supreme Court of Illinois

______________________

1 We note that Respondent knew none of this at the time he drafted the power of attorney form and quit claim deed at Mr. Zabielski's request, and we can only speculate what he might have learned had he done a minimal amount of investigation into the situation. What is clear, however, is that he undertook no investigation whatsoever.

2 At oral argument, counsel for the Administrator acknowledged that, while Respondent's drafting of the quitclaim deed certainly was not "best practices," only the power of attorney form that Respondent drafted gave rise to his duty to Mr. Muskala. We agree, and therefore limit our analysis and ruling to Respondent's preparation of the power of attorney form.