Filed September 2, 2008
In re David Thomas Odom,
Commission No. 04 CH 75
Synopsis of Review Board Report and Recommendation
Odom was charged in a four-count complaint with misconduct involving three clients. The Hearing Board found misconduct only as to Count II, and the issues before the Review Board concerned only Count II.
Count II charged that Odom engaged in conversion, conduct involving fraud, dishonesty, deceit, or misrepresentation, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The charges arose out of Odom's handling of settlement funds received on behalf of a client, Janet Rodriguez.
Odom did not file a timely responsive pleading to Count II. The Hearing Board, therefore, granted the Administrator's motion to deem the allegations of that count admitted and found that Odom engaged in the misconduct charged in Count II. Because Odom had been previously disciplined for misconduct in representing Rodriguez, the Hearing Board recommended that no additional discipline be imposed for the misconduct in this case.
The case was before the Review Board on the Administrator's exceptions. The Administrator challenged the Hearing Board's recommendation of no discipline for the misconduct found at to Count II. The Administrator sought to have the Review Board recommend a suspension of at least 18 months. Odom asserted that the Hearing Board erred in finding that he engaged in the misconduct charged in Count II.
The Review Board affirmed the Hearing Board's findings of misconduct. The Review Board found that the Hearing Board did not abuse its discretion in granting the Administrator's motion to deem the allegations of Count II admitted. The Review Board also rejected Odom's arguments that a decision in civil litigation that the funds belonged to Rodriguez's creditors rather than to Rodriguez did not preclude disciplinary proceedings against Odom based on conversion. The Review Board, however, disagreed with the Hearing Board's recommendation of no additional discipline. The Review Board reasoned that, while both disciplinary proceedings involved Odom's representation of the same client in the same litigation, the misconduct at issue in this case occurred after the misconduct at issue in Odom's prior case and could not have been charged in the prior case. Given all the circumstances, the Review Board concluded that additional discipline was warranted and recommended that Odom be suspended for nine months.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
DAVID THOMAS ODOM,
Commission No. 04 CH 75
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
In a four-count complaint, the Administrator-Appellant charged Respondent-Appellee, David Thomas Odom, with misconduct involving three separate clients. The Hearing Board found misconduct only as to Count II. This count charged that Odom engaged in conversion, conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (210 Ill. 2d R. 8.4(a)(4)), conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (210 Ill. 2d R. 8.4(a)(5)), and conduct that tends to defeat the administration of justice and bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770 (210 Ill. 2d R. 770).
This count involves $15,000 that Odom was holding for the benefit of a client, Janet Rodriguez, from November 15, 2000 pursuant to an order of a United States District Court. A subsequent order from the same district court judge instructed Odom to continue to hold these funds until a state court determined whether his client or her judgment creditors were entitled to the funds. Before the state court decided who was entitled to the funds, the undisputed facts demonstrate that Odom's client security account was completely depleted and overdrawn by $10.83. The depletion of his client's security account happened while another charge of misconduct against Mr. Odom was before an ARDC panel. As a result of his misconduct in the
prior case, Odom was suspended for nine months. In re Odom, No. M.R. 1972 (May 19, 2005). The Hearing Board in this case recommended no additional discipline be imposed on Odom.
This case is before the Review Board on the Administrator's exceptions. The Administrator contends that the Hearing Board erred in recommending no discipline for the misconduct found as to Count II and seeks to have the Review Board recommend a suspension of at least eighteen (18) months. He does not challenge the Hearing Board's findings as to Counts I, III, and IV.
Odom asserts that the Hearing Board correctly recommended no discipline. He also contends that the Hearing Board erred in finding that he engaged in the misconduct charged in Count II and in denying his motion for judgment as to Count II.
After obtaining his law degree from the University of Chicago in 1992, Odom worked as a litigator at Jenner and Block for four years. Thereafter, he formed a partnership with one other attorney. At the time of the hearing, Odom was primarily employed as an agent/manager for athletes, writers, and directors. He was not practicing law, except to handle occasional cases for family and friends.
Count II alleged that, in May 1999, Odom agreed to represent Janet Rodriguez as substitute counsel in a civil suit previously filed on her behalf in the United States District Court for the Northern District of Illinois. In October 2000, Odom and Rodriguez discussed possible settlement of the case. During those discussions, a dispute arose between Odom and Rodriguez as to the fees due. Given the dispute, Rodriguez refused to sign a proposed settlement and release agreement.
On November 9, 2000, the presiding judge, Judge Blanche Manning, ordered the defendants to deposit $21,000 with the clerk of the district court. This sum represented the
portion of the settlement proceeds that was subject to the fee dispute. Judge Manning also ordered that Rodriguez be paid a separate $15,000. Those funds were not in dispute. Under Judge Manning's order, an additional $24,000 was to be paid to Rodriguez's attorneys.
On November 13, 2000, Odom deposited $15,000 into his client trust account. This money represented the funds to be paid to Rodriguez according to Judge Manning's order. Rodriguez did not authorize Odom to use any part of this money.
As of January 12, 2004, Odom overdrew his client trust account. At that time, he had not paid any portion of the $15,000 due Rodriguez. Count II charged that Odom used Rodriguez's $15,000 for his own purposes.
The Hearing Board deemed the allegations of Count II admitted pursuant to ARDC Rule 236 (Dis. Com. R. 236). Under ARDC Rule 236 (Dis. Com. R. 236), when the respondent has failed to answer or otherwise respond to the complaint within the time and manner prescribed by the Rules, upon motion of the Administrator and with notice to the respondent, all factual allegations and disciplinary charges shall be deemed admitted.
Over a period of roughly one year, from October 2004 to October 2005, the hearing panel chairman repeatedly afforded Odom time to file an answer or other responsive pleading in relation to Count II. Despite these multiple opportunities, Odom did not file such a pleading. On November 2, 2005, the hearing panel chairman granted the Administrator's motion to deem the allegations of Count II admitted. Based on that order, no further proof of the allegations of Count II was required and no evidence was presented relating to Count II.1
Generally, a respondent should be given the opportunity to present the Hearing Board with evidence in his or her defense. In re Donaghy, 393 Ill. 621, 625, 66 N.E.2d 856
(1946). This opportunity can be lost, however, if the respondent does not take proper action to present his or her defense. In re Weston, 92 Ill. 2d 431, 442 N.E.2d 236, 65 Ill. Dec. 925 (1982).
Hearing Board decisions on procedural issues, such as whether to grant a motion under ARDC Rule 236 (Dis. Com. R. 236), are reviewed for abuse of discretion. In re Speizer, No. 00 SH 49 (Review Board March 27, 2002), petition for leave to file exceptions allowed, sanction modified, No. M.R. 18161 (Sept. 18, 2002); see In re Joyce, 133 Ill. 16, 29, 549 N.E.2d 232, 139 Ill. Dec. 720 (1989). An abuse of discretion occurs only where no reasonable person would agree with the Hearing Board's position. In re Peterson, No. 01 CH 83 (Review Board Oct. 30, 2003), petition for leave to file exceptions denied, No. M.R. 19162 (March 12, 2004); In re Wilson, No. 98 CH 69 (March 23, 2001), approved and confirmed, No. M.R. 17518 (Sept. 20, 2001).
The hearing panel gave Odom numerous opportunities to file a proper responsive pleading. Odom has not shown that his failure to file a proper answer or responsive pleading within the proper time was reasonable or justified by any extenuating circumstances. See Spiezer, opinion p. 7. Given all the circumstances, the Hearing Board did not abuse its discretion in deciding to deem the allegations of Count II admitted.
Because the allegations of the complaint were deemed admitted, no further proof of the charges or supporting allegations of Count II was required. ARDC Rule 236 (Dis. Com. R. 236); In re Maros, No. 94 CH 430 (Review Board March 20, 1996), approved and confirmed, No. M.R. 12639 (Sept. 24, 1996).
Odom contends, however, that allegations deemed admitted due to procedural errors should not be allowed to overcome opposite findings of fact reached in other litigation involving the same parties. However, that did not occur here.
Rodriguez had been involved in a dissolution of marriage proceeding. In those proceedings, on August 8, 2000, the circuit court entered judgment against Rodriguez and in favor of her ex-husband, Carlos Alvarez, and his attorney Andrea Schleifer. That judgment remained unsatisfied. Alvarez was named as a defendant in the civil litigation in which Odom represented Rodriguez, and he received notice of the settlement of that lawsuit. On January 2, 2001, a citation to discover assets was filed. Pleadings in the citation case were directed to Odom, who held the $15,000 settlement funds for Rodriguez.
On February 24, 2004, the circuit court in the citation proceedings entered an order directing Odom, as citation respondent, to turn over to Schleifer and Alvarez the $15,000 that Odom was "currently holding" for the use of Rodriguez. In the interim, Judge Manning had instructed Odom to hold Rodriguez's portion of the proceeds until the state court dealing with the citation proceedings determined who should receive the funds.
However, on January 12, 2004, Odom's client trust account was overdrawn by $10.83. As of March 17, 2004, Odom had not turned over the funds to Schleifer or Alvarez. On April 2, 2004, Odom paid Schleifer $10,000; she executed a release of the judgment against Odom.2
Odom argues that the circuit court in the citation proceedings decided that the money did not belong to Rodriguez. He contends that this finding is res judicata in the disciplinary proceedings. Odom asserts that, because the money did not belong to Rodriguez, there cannot be conversion.
Under the doctrine of res judicata, a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same cause of
action. LaSalle National Bank v. County Board of School Trustees, 61 Ill. 2d 524, 528, 337 N.E.2d 19 (1975). For res judicata to apply, there must be a) a final judgment on the merits by a court of competent jurisdiction, b) identity of the cause of action, and c) an identity of parties or their privies. River Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 302, 703 N.E.2d 883, 234 Ill. Dec. 783 (1998).
It is not at all clear that the circuit court finding in the citation case would have a res judicata effect in a disciplinary case. However, even if it did, Odom's argument misses the point. There is no indication that the money at issue belonged to Odom or that any court determined that it did. The circuit court order on which Odom relies demonstrates that the money did not belong to him. The court found that the money belonged to persons other than Odom. Odom was supposed to be holding the money for the benefit of Rodriguez or her creditors.
Despite its separate common law meaning, see In re Thebus, 108 Ill. 2d 255, 483 N.E.2d 1258, 91 Ill. Dec. 623 (1985), for purposes of disciplinary cases, conversion occurs whenever an attorney is supposed to be holding money on behalf of another and the balance of the account into which the lawyer has deposited the funds falls below the amount entrusted to the lawyer. In re Holz, 125 Ill. 2d 546, 555, 533 N.E.2d 818, 127 Ill. Dec. 736 (1988). That is what occurred here.
The Hearing Board denied Odom's motion for judgment as a matter of law as to Count II, which was based in part on the res judicata theory raised here. We find no error in the Hearing Board's denial of Odom's motion for judgment as a matter of law as to Count II.
The remaining issue concerns the sanction. Sanctions for cases involving conversion vary significantly, from censure to disbarment, depending in part on the aggravating
and mitigating factors. In re Gaubas, No. 95 SH 520 (Review Board Oct. 17, 1996), approved and confirmed, No. M.R. 13056 (Jan. 30, 1997). In determining the discipline to recommend in any given case, the Review Board must consider each case based on its own particular facts and circumstances, while remaining aware that the system seeks to impose sanctions consistent with those imposed in other similar cases. In re Ingersoll, 186 Ill. 2d 163, 177-78, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999); In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). In imposing discipline, the purpose is not to punish the individual respondent, but to protect the public, maintain the integrity of the profession, and protect the administration of justice from reproach. In re Spak, 188 Ill. 2d 53, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999); Timpone, 157 Ill. 2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55. All the circumstances, including aggravating and mitigating factors and the respondent's conduct in the disciplinary proceedings, are considered. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991); In re Samuels, 126 Ill. 2d 509, 533 N.E.2d 808, 129 Ill. Dec. 43 (1989).3 The Hearing Board's sanction recommendation is advisory. Ingersoll, 186 Ill. 2d at 178, 710 N.E.2d 390, 237 Ill. Dec. 760.
The Hearing Board recommended that no additional sanction be imposed because of the discipline imposed on Odom in a prior case. Normally, the fact that a respondent has been disciplined previously is a serious aggravating factor, In re Storment, 203 Ill. 2d 378, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002), especially if the respondent has been previously disciplined for similar misconduct. In re Levin, 101 Ill. 2d 535, 541, 463 N.E.2d 715, 79 Ill. Dec. 161, cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984). However, relying on In re Teichner, 104 Ill. 2d 150, 470 N.E.2d 972, 83 Ill. Dec. 552 (1984) and In re Howard, No. 99 CH 34 (Review Board Dec. 6, 2001), petition for leave to file exceptions allowed, sanction modified,
No. M.R. 17965 (March 22, 2002), the Hearing Board recommended that Odom not be disciplined for the misconduct as to Count II on the grounds that, if that misconduct had been brought as part of the prior disciplinary proceeding, the sanction in the prior case would not have been increased. The Hearing Board also determined that a nine-month suspension, the discipline imposed in Odom's prior case, In re Odom, No. M.R. 19772 (May 19, 2005), was sufficient for his overall misconduct.
In Teichner, the respondent had been disciplined before. However, Teichner was not a recidivist in the ordinary sense because the misconduct for which he had been disciplined previously occurred after the misconduct in the case before the Court. Teichner, 104 Ill. 2d at 167, 470 N.E.2d 972, 83 Ill. Dec. 552. The Court considered Teichner's misconduct as a whole and disciplined Teichner based on the totality of his misconduct. Teichner, 104 Ill. 2d at 167-68, 470 N.E.2d 972, 83 Ill. Dec. 552. Teichner was disbarred.
In Howard, the Review Board relied on Teichner for the proposition that, where the conduct at issue predates conduct for which the respondent was previously disciplined, consideration can be given to the nature of the discipline that would have been imposed if the cases had been prosecuted together, rather than sequentially. Howard, No. 99 CH 34, opinion p. 11.4 Applying that reasoning, the Review Board did not give Howard's prior discipline the same weight in aggravation that it might have warranted otherwise. Howard, opinion pp. 10-14. The Court, however, did not follow the Review Board's sanction recommendation and imposed more severe discipline. In re Howard, No. M.R. 17965 (March 22, 2002).
Odom's prior case alleged misconduct as to three clients, one of whom was Rodriguez. The prior charges related to Odom's representation of Rodriguez in the same civil lawsuit at issue here. Those charges, however, primarily concerned Odom's conduct in bringing
another attorney in to assist in the case and splitting fees with him, the propriety of the contingent fee agreement, and the settlement. The misconduct found as to Rodriguez involved Odom's failure to obtain her written consent to a division of fees with the other attorney. As to the two other clients, Odom was found to have engaged in other misconduct, including making misrepresentations to a client, representing a client in a state in which he was not licensed to practice, and commingling, conversion, and failure to promptly deliver funds to a client or third party. In re Odom, No. 01 CH 69 (Review Board Sept. 10, 2004), petition for leave to file exceptions denied, No. M.R. 19772 (May 19, 2005). As a result of his misconduct in the prior case, Odom was suspended for nine months. In re Odom, No. M.R. 19772 (May 19, 2005).
We disagree with the Hearing Board's rationale for recommending that no discipline be imposed in this case. The misconduct at issue here is related to Odom's misconduct in the prior disciplinary case in that it arose out of Odom's representation of the same client in the same litigation. However, the misconduct at issue in this proceeding occurred after the misconduct that was the subject of Odom's prior disciplinary proceeding and could not have been prosecuted as part of the prior proceeding. In addition, it appears that the misconduct here occurred after the hearing in Odom's prior case and after the Hearing Board determined, in the prior case, that he had engaged in misconduct involving client funds.
Odom originally placed the $15,000 in his client trust account, but later took the money, claiming that he was entitled to the money as fees under a quantum meruit theory. Odom's sworn statement to the Administrator in his prior disciplinary case indicates these facts. In the present case, Odom told the Hearing Board that, after the sworn statement, he put the $15,000 back into the trust account because by then citation proceedings were pending. As of the first hearing date in Odom's prior disciplinary case, in May 2003, the balance in his client
trust account exceeded $15,000. The Hearing Board issued its report in Odom's prior case on October 16, 2003. As of January 12, 2004, the balance in Odom's trust account was $10.83. The money was withdrawn in the interim.
Given all the circumstances, Odom's present misconduct does warrant discipline. Essentially, Odom converted $15,000 that he knew, based on court orders, he should have been holding for the benefit of his client or her creditors. He did so at a time when disciplinary proceedings for prior similar misconduct should have put him on further notice that his conduct was improper. No significant mitigating evidence was presented.
We recommend that Odom be suspended for nine months for the misconduct that is the subject of this case. This case is analogous to In re Solomon, 118 Ill. 2d 286, 515 N.E.2d 52, 113 Ill. Dec. 243 (1987). Solomon converted approximately $12,500 in client funds. Like Odom, Solomon asserted that the money was due to him as fees and reimbursement for expenses. See Solomon, 118 Ill. 2d at 296-97, 515 N.E.2d 52, 113 Ill. Dec. 243. Solomon was suspended for nine months.
Cases on which the Administrator relies in seeking an eighteen-month suspension involve more aggravated situations than that present here. For example, the respondent in In re Altman, 128 Ill. 2d 206, 538 N.E.2d 1105, 131 Ill. Dec. 549 (1989), who was suspended for two years, was found to have engaged in forgery. The Review Board observed that the conduct of the respondent in In re Brill, No. 00 CH 34 (Review Board March 20, 2003), petition for leave to file exceptions denied, No. M.R. 18717 (Sept. 19, 2003) exposed his client to significant risk. Brill was suspended for eighteen months. The respondent in In re Belgrad, 97 CH 79 (Hearing Board Feb. 18, 1999), approved and confirmed, (Review Board Aug. 13, 1999), approved and
confirmed, No. M.R. 16180 (Nov. 22, 1999), who was suspended for one year, had demonstrated a pattern of using his client trust account as if it was his own.
For the foregoing reasons, we affirm the Hearing Board's findings of fact and conclusions of law, but recommend that the Respondent-Appellee, David Thomas Odom, be suspended from the practice of law for nine (9) months.
Date Entered: 2 September 2008
Daniel P. Duffy
1 Odom never actually filed an answer to Count II. At the conclusion of the hearing, the Hearing Board learned that Odom had tendered an answer to counsel for the Administrator at the time of his deposition, in late November 2005. By that time, the order deeming the allegations of the complaint admitted had been entered. The document is not of record, and there is no indication why Odom did not mention it previously or properly file it with the Clerk.
2 It is not clear whether the remaining $5,000 due to Alvarez was paid.
3 Although free to do so, see ARDC Rule 236 (Dis. Com. R. 236), the parties did not present significant evidence in aggravation and mitigation.
4 This proposition is still valid. See In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126, 1136, 242 Ill. Dec. 595 (1999).