Filed October 28, 2008
In re Alan Jay Shefler
Commission No. 05 CH 35
Synopsis of Review Board Report and Recommendation
The Administrator charged Shefler with soliciting personal injury cases through a non-lawyer, paying fees to other non-lawyers in exchange for referring personal injury cases to him, and neglecting one case. Shefler admitted some of the factual allegations but denied all allegations of misconduct.
The Hearing Board found that Shefler committed all of the misconduct related to the charges of solicitation and improper payment of referral fees, but did not neglect a client matter. It recommended that Shefler's license be suspended for six months.
The Administrator and Shefler filed exceptions to the Hearing Board's Report and Recommendation. The Administrator argued that he proved the neglect charge by clear and convincing evidence and that Shefler should be suspended for two years. Shefler argued that the Hearing Board's findings of misconduct were contrary to the manifest weight of the evidence and that the appropriate sanction, if any, would be a censure.
The Review Board affirmed the Hearing Board's factual findings but reversed the findings that Shefler solicited clients through a representative, induced another to engage in conduct or gave assistance to another's conduct when Shefler knew that the conduct would violate the Rules of Professional Conduct, and improperly shared legal fees with a non-lawyer.
A majority of the Review Board recommended that Shefler receive a 60-day suspension. One panel member dissented from the majority's sanction recommendation and would have recommended that Shefler receive a reprimand.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ALAN JAY SHEFLER,
Commission No. 05 CH 35
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
In the matter before us, the Administrator charged Respondent, Alan Jay Shefler, with soliciting personal injury cases through a non-lawyer, paying fees to other non-lawyers in exchange for referring personal injury cases to him, and neglecting one case. The Hearing Board found that Respondent committed all of the misconduct related to the charges of solicitation and improper payment of referral fees, but did not neglect a client matter. The Hearing Board recommended that Respondent's license be suspended for six months.
Both the Administrator and Respondent filed exceptions to the Hearing Board's findings and sanction recommendation. The Administrator contends that he proved the neglect charge by clear and convincing evidence and that Respondent should receive a two-year suspension for his misconduct. Respondent argues that the Hearing Board's findings of misconduct are contrary to the manifest weight of the evidence and that the appropriate sanction, if any, is a censure.
The following evidence adduced at the hearing is relevant to the issues before us. A thorough recitation of the evidence may be found in the Hearing Board's Report and Recommendation.
Respondent was licensed to practice law in 1980. He opened his own office in 1986 and focuses his practice on personal injury and worker's compensation matters. He has no prior discipline.
On September 28, 2001, Respondent began representing Albert Arnold on a personal injury claim arising from a car accident. Shortly thereafter, Respondent hired Arnold to do some work for him. According to Respondent, Arnold located people, obtained signatures on documents, collected records, and transported clients. Respondent paid Arnold $65 per hour. In October 2001, Respondent issued ten checks to Arnold that totaled $7972. He gave Arnold another check for $950 on December 20, 2001. None of the payments was charged to Respondent's clients. Respondent testified that he relied on his memory to keep track of the payments he made to Arnold.
Respondent had no records of the work Arnold performed. He testified that Arnold earned only about one-third of the $8,922 that he received. Respondent explained the extra payments as advances that he made because Arnold was having financial problems. Respondent did not try to recover any of the excess money because he was afraid of Arnold after he learned that Arnold was a convicted felon and after Arnold began threatening Respondent.
Respondent testified that Arnold referred two clients to him. One of the clients was Joe Rice, who had allegedly been involved in a car accident. Respondent later learned that the person Arnold referred to him was not Joe Rice and withdrew from the representation.
The Hearing Board found that Respondent gave something of value to Arnold for recommending or having recommended the lawyer's services, in violation of Rule 7.2(b) of the Rules of Professional Conduct; induced Arnold to solicit professional employment from a
prospective client who is neither a relative, close friend of the lawyer, or a person with whom Respondent or his firm had a prior relationship, in violation of Rule 7.3; induced Arnold to engage in conduct when Respondent knew the conduct would violate the professional rules, in violation of Rule 8.4(a)(2); and shared legal fees with a non-lawyer, Arnold, in violation of Rule 5.4(a).
In 2001 and 2002, Respondent paid Marco Mejia, Tommie Johnson, Craig Thompson, Clifford Yates, and Charles Woodard to help him with tasks such as driving clients, picking up documents, and obtaining signatures. Mejia began working with Respondent in 1988 or 1989. Respondent testified that Mejia also worked as a translator for his Hispanic clients. In one large personal injury case, Mejia explained the settlement negotiations and trial proceedings to Respondent's client, Rafael Murillo. Respondent paid Mejia approximately $65,000 in 2001 and 2002. Respondent had no documentation of the services Mejia performed during that time. In 2004, Mejia became Respondent's part-time employee and received a salary of $20,000 per year.
Mejia testified that he spent a lot of time with Rafael Murillo, including going with him to the hospital and the rehabilitation center and assisting him during his three-day personal injury trial. Mejia stated that he also performed investigative work for Respondent if the case involved an accident that occurred in an Hispanic neighborhood. He testified that Respondent paid him $65 per hour and sometimes would give him an advance. Mejia stated that he referred five or six people to Respondent but Respondent did not pay him for the referrals.
Respondent had no records of the assignments or work done by the other individuals named in Count II of the complaint. He paid over $26,000 to Johnson,
approximately $10,000 to Thompson, $745 to Yates, and over $7,000 to Woodard. Respondent admitted that Mejia and Johnson referred clients to him and denied that Thompson, Yates, and Woodard did. Respondent further denied that he paid any of these individuals to bring clients to him.
A former associate in Respondent's firm, Patrick Francis, testified that, at his suggestion, Respondent cleaned out his closed files to save on storage costs. He kept certain information and financial documents and threw away the rest of the files, including work assignments to independent contractors, witness statements, and photographs. Francis further testified that Mejia assisted with Respondent's Spanish-speaking clients and that he was helpful in the Murillo case and another case involving a car accident that occurred in an Hispanic neighborhood. Francis testified that Tommie Johnson also assisted him on occasion.
The Hearing Board found that Respondent gave something of value to Mejia, Johnson, Thompson, Yates, and Woodard for recommending or having recommended Respondent's services, in violation of Rule 7.2(b) of the Rules of Professional Conduct; and engaged in conduct that brings the legal profession into disrepute, in violation of Supreme Court Rule 770.
Respondent represented Angelo Georgopoulos in a personal injury matter. The case settled in 1998 for $200,000. Angelo's daughter, Christina Georgopoulos, testified that her father's home was subject to a public aid lien of $10,304.96. Respondent's associate, Edward Fox, withheld from the settlement proceeds a check from the insurance company in the amount of $8,151.10 in order to resolve the lien. He placed the check in the file. Respondent took over the case in December 1998, after Fox left his firm. Christina Georgopoulos testified that she
called Respondent many times between January 1999 and June 1999 to check on the status of the lien, because her father wanted to sell his house. Respondent told her that he had not been able to talk with a public aid supervisor. Then, the Georgopoulos family asked Respondent to turn over the withheld funds to them. Respondent did not do so.
Christina Georgopoulos testified that there was a ten-day period in June 1999 when Respondent did not return her phone calls. She stated that she contacted the ARDC later in June and that Respondent ultimately turned over the funds, plus interest, in September 1999.
Respondent testified that when he first took over the case he did not know how to handle the lien situation. He discovered that a settlement check for $8,151.10 had been placed in the file. After looking into it, he concluded that the real estate lien did not attach to Angelo Georgopoulos's settlement proceeds. By the time he figured this out, the settlement check was stale and he had to obtain another one from the insurance company. Respondent admitted that he received calls from either Angelo or Christina Georgopoulos, but said that he usually returned them. He testified that he had a hard time reaching Angelo Georgopoulos. On September 9, 1999, Respondent sent Angelo Georgopoulos a check for $10,306.96, for the amount withheld from the settlement proceeds plus interest.
The Hearing Board found that the Administrator did not prove that Respondent failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3; failed to keep his client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a); or failed to promptly deliver to a client funds that the client is entitled to receive, in violation of Rule 1.15(b).
Evidence in Mitigation
Respondent testified that he should have been more careful about keeping track of his payments to independent contractors and should have handled the Georgopoulos matter more efficiently.
A retired federal judge, a federal magistrate, three attorneys and a rabbi testified that Respondent has a good reputation for honesty and integrity.
After considering its findings of misconduct and the factors in aggravation and mitigation, the Hearing Board recommended that Respondent's license be suspended for six months.
We first address Respondent's arguments that the evidence presented to the Hearing Board amounted to, at most, suspicious circumstances and did not constitute clear and convincing evidence of the charges in Counts I and II.
The Administrator bears the burden of proving the charges of misconduct by clear and convincing evidence. In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560 (2004). We defer to the Hearing Board's factual findings and will not disturb them unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill.2d at 542, 848 N.E.2d 961. Our review of the Hearing Board's legal conclusions, including whether the facts found constitute the charged misconduct, is de novo. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E.2d 906 (1994).
Count I alleged that Respondent induced Albert Arnold, a non-lawyer, to solicit clients for him, in violation of Rules 7.3 and 8.4(a)(2); shared legal fees with Arnold, in violation of Rule 5.4(a); and gave something of value to Arnold in exchange for Arnold's referral of clients to Respondent, in violation of Rule 7.2(b).
In finding that Respondent gave something of value to Arnold in exchange for referring potential clients, the Hearing Board relied on the evidence that Arnold presented a phony client to Respondent and that Respondent wrote multiple checks to Arnold in a short period of time, had no records or explanations as to what services justified those checks, and admitted that Arnold earned only about one-third of the money paid to him. This evidence was circumstantial, but the supreme court has made clear that "[c]ircumstantial evidence is legal evidence and neither the commissioners nor this court are required to be naive or impractical in appraising an attorney's conduct." In re Krasner, 32 Ill.2d 121, 127, 204 N.E.2d 10 (1965). Evidence that a respondent made large payments to a non-employee but was unable to substantiate the reasons for the payments is sufficient to establish a violation of Rule 7.2(b). In re Levine, No. 00 CH 50 (Hearing Board, Feb. 27, 2004), approved and confirmed, No. M.R. 19392 (May 17, 2004).
Respondent contends that the Hearing Board arbitrarily rejected his unrebutted explanation of the checks he wrote to Arnold. We disagree. The Hearing Board is not required to believe the testimony of a witness simply because it is not directly rebutted, although it may not arbitrarily reject testimony of an unimpeached witness that is not contradicted by direct or circumstantial evidence. In re Bourgeois, No. 01 CH 97 (Review Board, Sept. 26, 2003), petition for leave to file exceptions allowed, No. M.R. 19087 (Jan. 20, 2004). "The trier of fact
may disbelieve a witness where there are substantial questions as to the witness's veracity, based on discrepancies or inconsistencies in the witness's own testimony or other record evidence. It may also reject testimony that is inherently improbable." Bourgeois, No. 01 CH 97, Review Board Report and Recommendation at 3 (citations omitted).
The Hearing Board did not arbitrarily reject Respondent's testimony. It set forth in detail the circumstantial evidence rebutting Respondent's explanation of his payments to Arnold, which led the Hearing Board to conclude that Respondent's testimony was "inherently unbelievable." Shefler, 05 CH 35, Hearing Board Report and Recommendation at 17. Respondent has not given us a persuasive reason to disturb the Hearing Board's finding that he was not credible. In light of this finding and the evidence considered by the Hearing Board, we cannot say that its finding that Respondent improperly paid Arnold to refer clients was against the manifest weight of the evidence.
Next, Respondent draws a distinction between the charge of solicitation and the charge of payment for referral of potential clients and contends that the Administrator presented no evidence of solicitation. We agree with Respondent that the two charges have different elements that the Administrator was required to prove and that the facts as found by the Hearing Board were not sufficient to establish the solicitation charge by clear and convincing evidence.
Subject to certain exceptions, Rule 7.3 prohibits attorneys, directly or through a representative, from soliciting professional employment when a significant motive for doing so is pecuniary gain. Rule 7.3 defines "solicit" as "contact with a person other than a lawyer in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient." To establish a violation of Rule 7.3, the Administrator must show that Arnold solicited clients and that Respondent had knowledge of Arnold's activities. See In re
Milks, No. 99 CH 20 (Hearing Board, Sept. 23, 2002) at 15-16, petition for leave to file exceptions denied, No. M.R. 18895 (Nov. 14, 2003). The facts as found by the Hearing Board do not establish both of these necessary elements.
The Administrator presented no evidence from any client or potential client of Respondent's that Arnold contacted them for the purpose of directing business to Respondent; nor did the Administrator present any testimony from Arnold himself. The evidence that Arnold presented an imposter client and received money from Respondent that he did not earn raises suspicions of solicitation but, even assuming arguendo that Arnold sought out clients to present to Respondent, there was insufficient evidence that Respondent knew or should have known of Arnold's activities or induced him to solicit clients.
We are mindful of the supreme court's holding in In re Krasner, 32 Ill.2d 121, 204 N.E.2d 10 (1965), that solicitation may be proved without direct testimonial evidence from the solicitor or the solicitee. After considering Krasner, however, we conclude that it is factually distinguishable from the instant case. The evidence against Krasner consisted of the testimony of Krasner and his partner and "certain ledger sheets and cancelled checks of the partnership." Krasner, 32 Ill.2d at 123, 204 N.E.2d at 10. Krasner admitted that he received over 70 case referrals from a non-lawyer, Vogele, and gave Vogele about $20,000 in "gratuities" for the referrals. However, he denied that he had an agreement with Vogele to solicit cases for him. The court relied the volume of referred cases and the fact that almost all of the cases involved personal injuries in holding that it should have been obvious to Krasner "that there was active solicitation of cases rather than innocent recommendation." Krasner, 32 Ill.2d at 128, 204 N.E.2d at 10.
Respondent received two referrals from Arnold, compared with seventy referrals that Krasner received from Vogele. Due to this disparity and the absence of any other evidence that goes to the requisite element of knowledge of the alleged solicitation, we conclude that, as a matter of law, the facts as found by the Hearing Board do not establish a violation of Rule 7.3 or Rule 8.4(a)(2) (inducing another to engage in conduct or giving assistance to another's conduct when the lawyer knows that conduct will violate the Rules of Professional Conduct).
We further conclude that the facts as found by the Hearing Board do not establish that Respondent shared legal fees with Arnold. The Administrator presented remarkably little evidence about the two cases that Arnold referred to Respondent. In one case, Arnold presented a man who said he was Joe Rice but turned out to be an imposter. Respondent withdrew from that matter once he learned of the false identification. Arnold also referred Joe Anderson to Respondent. Anderson and Arnold had been involved in the same car accident. The Administrator presented no further evidence regarding Anderson's case.
The Hearing Board acknowledged that there was no evidence that Respondent received a fee from any client referred by Arnold. Shefler, No. 05 CH 35, Hearing Board Report and Recommendation at 18. It relied on Krasner, 32 Ill.2d at 129, 204 N.E.2d at 10, for the proposition that an attorney can be found to have divided fees when the referral payments were "clearly a division of fees anticipated or later realized." The Hearing Board appears to have found that Respondent anticipated receiving legal fees from Arnold's referrals, but does not indicate what evidence it relied on in making that finding.
In Krasner, the respondent testified that his payments to Vogele, which he termed "gratuities" and the court found were referral payments, were based on his opinion of what the case was worth. Thus, in Krasner there was an evidentiary link between the referral payments
and the perceived value of the referred cases that is not present in the case before us. With respect to the Anderson matter, the Administrator presented no evidence about nature of the case, its resolution, or Respondent's assessment of it. There is a similar lack of evidence about the Rice matter, except for Respondent's testimony that the individual purporting to be Rice turned out to be an imposter.
We do not interpret Krasner to mean that a finding that an attorney made an improper referral payment to a non-lawyer necessarily leads to a finding that the attorney engaged in improper sharing of legal fees as well. While it may be reasonable to infer the anticipation of legal fees from the payment of a significant referral fee, that inference alone is not enough to establish a violation of Rule 5.4, In our view, Krasner stands for the proposition that the Administrator must show a connection between the referral fees paid and the legal fees that the attorney expected to or did realize. Krasner's testimony that his "gratuity" payments corresponded to his assessment of a case's value provided the necessary connection. No such evidence was presented in the case before us. Accordingly, the facts as found by the Hearing Board and the reasonable inferences drawn therefrom do not establish a violation of Rule 5.4.
For all of the foregoing reasons, we recommend that the Hearing Board's findings that Respondent violated Rule 7.2(b) and Supreme Court Rule 770 be affirmed, and that its findings as to Rules 5.4, 7.3, and 8.4(a)(2) be reversed and those charges be dismissed.
Respondent next asserts that the Administrator did not meet his burden of proving that he paid Mejia, Johnson, Thompson, Yates, and Woodard for referrals. According to Respondent, the Hearing Board shifted the burden to Respondent to prove that the payments
made to those individuals were for something other than referrals and ignored the evidence he presented. We disagree.
The Administrator presented evidence that Respondent paid approximately $100,000 to the individuals named above but he had no record of the specific work they performed. Respondent admitted that several of them referred cases to him. Respondent gave testimony explaining the payments he made, but the Hearing Board did not find his explanations credible. The Hearing Board's credibility assessment did not shift the burden of proof to Respondent. As we set forth, supra, the Hearing Board was not required to accept Respondent's explanation simply because it was not directly rebutted.
Moreover, contrary to Respondent's contention, the Hearing Board did not ignore the evidence pertaining to the work that Mejia performed. The Hearing Board acknowledged that Mejia probably performed some services for Respondent, but Respondent's evidence did not explain the substantial payments that he made to Mejia. Ultimately, Respondent cannot overcome the Hearing Board's finding that he was not credible. The Hearing Board properly relied on the circumstantial evidence presented by the Administrator and the reasonable inferences that it drew from that evidence in finding that Respondent committed the misconduct charged in Count II. While it would have been possible for the Hearing Board to come to the opposite conclusion, it is not appropriate to reverse the Hearing Board's findings just because an opposite conclusion could have been reached or is reasonable. Winthrop, 219 Ill. 2d at 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397.
For the foregoing reasons, we recommend that the Hearing Board's factual findings and findings of misconduct with respect to Count II be affirmed.
Next we turn to the Administrator's assertion that he proved by clear and convincing evidence the allegations in Count III that Respondent neglected Angelo Georgopoulos's case and failed to promptly deliver settlement funds. We disagree. The evidence does not support the Administrator's characterization of Respondent's representation as "months of neglect." Except for a ten-day period, Respondent communicated with the Georgopoulos family. Additionally, the Hearing Board accepted his testimony that he did not initially know how to resolve the lien and was trying to determine whether the lien attached to the settlement proceeds. Respondent acknowledged that he could have handled the matter more efficiently, but the fact that his representation was less than perfect does not necessarily lead to a finding of neglect.
The Administrator has cited no case in which conduct as minimal as Respondent's has been found to violate Rules 1.3, 1.4(a), or 1.15(b). The circumstances of In re Smith, 168 Ill.2d 269, 659 N.E.2d 896 (1995), relied upon by the Administrator, were much more egregious than this case. Accordingly, we conclude that the Administrator has not demonstrated that the Hearing Board's findings on Count III were contrary to the manifest weight of the evidence.
Both parties disagree with the Hearing Board's recommended sanction of a six-month suspension. The Administrator argues for a two-year suspension, while Respondent asserts that the sanction should be, at most, a censure.
The purpose of the disciplinary process is not to punish attorneys, but to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). With those principles in
mind, we consider discipline imposed in similar cases as well as the particular circumstances of each case, including the nature of the misconduct and any mitigating and aggravating factors. In re Witt, 145 Ill.2d 380, 583 N.E.2d 526 (1991). The Hearing Board's sanction recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981).
The Hearing Board stated that the Respondent's solicitation of cases through Arnold is the misconduct that most warrants discipline. Shefler, No. 05 CH 35, Hearing Board Report and Recommendation at 25. We agree that the other charges against Respondent, while still serious, involved less egregious misconduct than the solicitation charges. Because we have recommended that the charges pertaining to solicitation and sharing of legal fees with a non-lawyer be dismissed, the solicitation cases relied upon by the Administrator and the Hearing Board do not apply.
That said, we think that Respondent's misconduct is serious enough to warrant a short period of suspension. The facts of this case demonstrate precisely why the payment of referral fees is harmful to the profession: it encourages unscrupulous individuals to present false claims in the hopes of recouping a referral fee, just as Arnold did. Respondent paid out over $100,000 to non-attorneys over an approximately two-year period. Such significant expenditures for an improper purpose make the public distrustful of lawyers and bring the legal profession into disrepute.
Our research has revealed just one case in which payment of referral fees was, as here, the only substantive misconduct. In In re Bender, No. 96 CH 838 (Reprimand, June 10, 1997), the respondent and four other attorneys from his firm were reprimanded for violating Rule 7.2(b). Bender admitted that, from the mid 1980s until 1992, his firm had paid clients who referred business to them. The referral payments ranged from $35 to $50. Between January
1992 and March 1992, Bender's firm made 93 referral payments. In holding that a reprimand was an appropriate sanction, the Hearing Board noted that Bender's firm did not engage in a quid pro quo with its clients in order to generate business, the referral payments were small, the firm stopped making the payments as soon as it learned they were improper, and all of the attorneys cooperated with the Administrator.
We determine that the significant amount of money that Respondent paid in referral fees in a relatively short period of time, approximately two years, distinguishes this case from Bender, as does Respondent's insistence that the payments were legitimate despite the lack of any documentation in support of his assertion. Accordingly, after considering the relevant law, the nature of Respondent's misconduct and all of the evidence, we recommend that Respondent be suspended from practicing law for sixty (60) days. Based on the positive testimony about Respondent's character and the deterrent effect of the recommended sanction, we are optimistic that Respondent will not commit misconduct in the future.
For the foregoing reasons, we recommend that the Hearing Board's factual findings be affirmed but that its findings of misconduct with respect to Rules 5.4(a), 7.3, and 8.4(a)(2) be reversed and those charges dismissed. We recommend that the remainder of the findings of misconduct be affirmed. We further recommend that Respondent, Alan Jay Shefler, be suspended from practicing law for sixty (60) days.
Date Entered: 28 October 2008
Bruce J. Meachum
Zimmerman Jr., Thomas A., Panel Member, concurring in part and dissenting in part:
I concur in the majority's determination that the charges of solicitation and sharing legal fees with a non-lawyer were not proven as a matter of law, but I respectfully dissent from the recommended sanction. In my view, the precedent for a case in which the only proven, substantive misconduct was a violation of Rule 7.2(b)1 does not support a 60-day suspension.
In re Bender, No. 96 CH 838 (Reprimand, June 10, 1997), is the case most comparable to this one. The only substantive misconduct at issue in Bender was improperly giving something of value to clients in exchange for recommending the attorney's services, in violation of Rule 7.2(b). Bender and the other attorneys in his firm had made small payments to clients in exchange for referrals over a period of several years. In determining that a reprimand was appropriate, the Hearing Board noted that Bender and his partners "did not engage in a quid pro quo with referrers in order to generate business," made modest referral payments, stopped making referral payments after they learned that the practice was improper, and cooperated with the Administrator. Bender, No. 96 CH 838. The circumstances of the instant case are not sufficiently distinguishable to justify an upward departure from Bender.
The Administrator did not charge Respondent with using Woodard, Yates, Thompson, Johnson, or Mejia to solicit business for him. While the Administrator did charge Respondent with inducing Arnold to solicit clients, we determined that the proof was insufficient to sustain that charge. Therefore, we must conclude that Respondent, like Bender, did not engage in a quid pro quo with referrers in order to generate business. In addition, Respondent stopped using independent contractors to perform services for him, and he cooperated with the Administrator.
While the referral payments in Bender were smaller on an individual basis than those made by Respondent,2 Bender's payments were more frequent (93 payments between January 1992 and March 1992) and went on for a longer period of time (from at least the mid 1980s until 1992). In contrast, in this case the Administrator presented 118 checks that Respondent wrote to Arnold, Woodard, Yates, Thompson, Johnson and Mejia, over an approximately two-year period. Sixty-six of those checks went to Mejia, and the Hearing Board found that Mejia actually performed some services for Respondent. Considering the number of payments and the duration of the practice of paying for referrals, it is evident that the referral payments in Bender were more extensive than those in the case before us. Consequently, Respondent should not receive a suspension when Bender and the attorneys he worked with were reprimanded. In my view, the majority's sanction recommendation is not in line with the principle of recommending discipline consistent with that imposed for similar misconduct. See In re Twohey, 191 Ill.2d 75, 85, 727 N.E. 2d 1028 (2000).
Additionally, the majority recommended a sanction that is more severe than the reprimand in Bender based, in part, on "Respondent's insistence that the payments were legitimate despite the lack of any documentation in support of his assertion." However, a respondent's assertion of a defense to charged misconduct is not an aggravating factor which can serve as a basis for the imposition of a more severe sanction. See In re Cueto, No. 97 SH 100 (Hearing Board, March 28, 2003) at 22, petition for leave to file exceptions denied, No. M.R. 19679 (Nov. 17, 2004) (although the respondent's continued assertion of innocence strained credulity and was preposterous in light of the evidence, it was not considered an aggravating factor).
For the foregoing reasons, I would recommend that Respondent, Alan Jay Shefler, receive a reprimand.
Date Entered: 28 October 2008
Thomas A. Zimmerman, Jr.
1 Respondent was also found to have engaged in conduct that brings the legal profession into disrepute, in violation of Supreme Court Rule 770. Generally, Supreme Court Rule 770 (formerly Supreme Court Rule 771) charges are subsidiary violations that are dependent upon other substantive charges. In re Storment, 203 Ill. 2d 378, 397, 786 N.E.2d 963, 272 Ill. Dec. 129 (2002).
2 The Hearing Board did not indicate in its Reprimand the aggregate amount of referral payments made by Bender's firm.