Filed February 19, 2009

In re David Arnold Milks
Respondent-Appellant

Commission No. 05 CH 44

Synopsis of Review Board Report and Recommendation
(February 2009)

The Administrator-Appellee filed a two-count amended complaint against Respondent-Appellant David Arnold Milks, charging him with misconduct that grew out of a personal injury matter. Count I of the complaint alleged that Respondent engaged in conversion, failed to promptly deliver funds or other property to a client that she was entitled to receive, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct; and engaged in conduct involving dishonesty, deceit, fraud or misrepresentation, in violation of Rule 8.4(a)(4). Count II charged that Respondent failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3; failed to keep a client reasonably informed about the status of a matter, in violation of Rule 1.4(a); and failed to make reasonable efforts to expedite litigation consistent with the interests of his client, in violation of Rule 3.2. Both counts further charged that Respondent engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) and conduct that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770. Respondent admitted most of the factual allegations of the complaint and denied some of them. He denied all of the allegations of misconduct.

The Hearing Board found that all of the allegations of misconduct charged in Count I of the complaint, and the charge that Respondent had failed to keep his client reasonably informed about the status of a matter in Count II were proved by clear and convincing evidence. The majority of the Hearing Board recommended that Respondent be suspended from the practice of law for two years and until he paid $6,666.66 in restitution to his clients. One panel member agreed with the majority's findings of fact and conclusions of law, but recommended that Respondent be suspended for two years, until restitution was paid and until further order of court.

The case was before the Review Board on the exceptions of the Respondent. He objected to several of the Hearing Board's factual findings, its findings of misconduct and its recommended sanction. The Administrator argued that the Hearing Board's findings of misconduct and its recommended sanction should be upheld, and claimed that the remaining charges of Count II were sufficiently proved as well.

The Review Board affirmed the Hearing Board's factual findings and findings of misconduct, except that it concluded that there was no violation of Rule 8.4(a)(5) in Count I. It recommended that Respondent be suspended for two years and until he paid restitution to two clients.

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

In the Matter of:

DAVID ARNOLD MILKS,

Respondent-Appellant,

No. 1908464.

Commission No. 05 CH 44

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

The Administrator-Appellee filed a two-count amended complaint against Respondent-Appellant David Arnold Milks, charging him with misconduct that grew out of a personal injury matter. Count I of the complaint alleged that Respondent engaged in conversion, failed to promptly deliver funds or other property to a client that she was entitled to receive, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct; and engaged in conduct involving dishonesty, deceit, fraud or misrepresentation, in violation of Rule 8.4(a)(4). Count II charged that Respondent failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3; failed to keep a client reasonably informed about the status of a matter, in violation of Rule 1.4(a); and failed to make reasonable efforts to expedite litigation consistent with the interests of his client, in violation of Rule 3.2. Both counts further charged that Respondent engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) and engaged in conduct that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770. Respondent admitted most of the factual allegations of the complaint and denied some of them. He denied all of the allegations of misconduct.

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The Hearing Board found that all of the allegations of misconduct charged in Count I of the complaint, and the charge that Respondent had failed to keep his client reasonably informed about the status of a matter in Count II were proved by clear and convincing evidence. The majority of the Hearing Board recommended that Respondent be suspended from the practice of law for two years and until he paid $6,666.66 in restitution to his clients. One panel member agreed with the majority's findings of fact and conclusions of law, but recommended that Respondent be suspended for two years, until restitution was paid and until further order of court.

The case now comes before the Review Board on the exceptions of the Respondent. He objects to several of the Hearing Board's factual findings, its findings of misconduct and its recommended sanction. The Administrator urges us to uphold the Hearing Board's findings of misconduct and its recommended sanction, and argues in addition that the remaining charges of Count II were sufficiently proved.

The facts are briefly summarized below.

COUNT I

On February 7, 2001, Celestine Kinnie and her passenger, Barbara Harper, were injured in a ten-vehicle accident. Two days later, they both retained Respondent to file suit against the person responsible. The pre-printed form contracts that each of them signed provided that Respondent would represent each of them in exchange for:

  1. A sum equal to 33 1/3% of the gross amount recovered from the claim by settlement without suit being filed.

  2. A sum equal to 40% of the gross amount recovered from the claim in the event suit is filed or arbitration.

  3. A sum equal to 33 1/3% of the gross amount collected for medical payment.

However, Respondent crossed out and initialed the "B" and "C" provisions on both contracts.

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According to Respondent, he did so because Kinnie was confused by the terms of the contract and he wanted to make it simpler. He intended the contract to indicate that he would receive one-third of all funds collected. He did not communicate this to his clients, however. Kinnie denied any confusion. She and Harper both recalled that Respondent explained that his fee would be one-third of any amount recovered from the responsible party.

Respondent referred Kinnie and Harper to the South Kedzie Clinic (the clinic) for treatment of their soft tissue injuries. A number of his clients were patients of the clinic as Respondent had known the owner, chiropractic physician John A. Stafford, for thirty years. On December 5, 2001, Respondent submitted a medical payment claim to Kinnie's insurance company, State Farm Insurance, on behalf of both women. The medical expenses listed included $4,200 owed to the clinic by Kinnie and $5,775 owed by Harper.

Two days later, State Farm agent Jack Prno sent Respondent payment for both women's medical expenses. Although the expenses claimed by Kinnie totaled $7,496, and those claimed by Harper totaled $9,280, each check was for $5,000, which was the limit for payment of medical expenses under Kinnie's policy.

On December 9, 2001, Respondent met with his clients in his office and gave them each a settlement sheet to sign. They showed that each woman would receive $1,666.66 and would pay Respondent $1,666.66 as his fee. Neither sheet indicated the disposition of the remaining third of the medical payment check.

Respondent told Kinnie to sign the settlement sheet and she did as instructed. She understood that she and Respondent were each receiving one-third of the $5,000, and Respondent advised her that the remainder would be paid to the clinic. She trusted Respondent's judgment as to how to divide the funds and believed that he was doing it correctly. Barbara Harper did not recall ever seeing the settlement statement, although it contained her signature.

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She did not remember being informed that the check was for medical expenses, or that Respondent was taking a fee from it. Neither Kinnie nor Harper authorized Respondent to use any of the funds to pay his personal bills, or those of other clients.

Both of the State Farm checks were also payable to Respondent. He endorsed the checks and deposited them in his client fund account on December 10, 2001. At the time that he did so, his account was overdrawn by $1,156.46. Over the next eight days, Respondent wrote several checks to himself and paid personal bills from the account. On December 18, 2001, his client fund account was overdrawn by $544.53.

According to Respondent, Kinnie and Harper's bills at the clinic were "taken care of." He wrote Stafford a check for $1,000 as payment for part of Kinnie's expenses, but as the two men were going to the gambling boats, Stafford wanted the payment in cash. Respondent gave him the $1,000 and made arrangements to keep the remaining $666.66 to use for expenses for Kinnie's civil suit. He also made arrangements with Stafford to borrow the $1,666.66 that the clinic was owed for Harper's medical expenses. According to Respondent, Harper therefore owed the clinic nothing—it became a debt that Respondent owed to Stafford. Respondent had no receipt for the $1,000 and no documentation concerning the loan or the money he kept for expenses. None of the money had been repaid at the time of the hearing in this matter. Dr. Stafford never attempted to collect the money owed to him from Kinnie and Harper. He considered it a debt that was owed by Respondent.

As Respondent realized that there was a potential conflict of interest between Kinnie and Harper, if it was actually Kinnie who was responsible for the accident, he referred Harper to another attorney at this point. Meanwhile, he tried to settle Kinnie's claim against Michael Gilasevitch, the truck driver who struck her vehicle, and Amma Trucking Corporation, the company that Gilasevitch worked for. As this could not be accomplished before the

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expiration of the statute of limitations, Respondent filed suit against them on February 3, 2003. Kinnie v. Gilasevitch and Amma Trucking Corporation, Circuit Court of Cook County case number 03M1-300592.

Both defendants were located out of state and Respondent's first attempt at serving them was unsuccessful. At the court's progress call on April 3, 2003, Respondent filed an affidavit indicating that he had obtained a new address for both defendants, and moved for the appointment of a special process server. His motion was granted and the matter was continued until August 1, 2003 "as a final date for service of summons upon any as yet unserved defendant, at which time the case may be dismissed for want of prosecution as to such unserved defendant unless counsel appears with an affidavit showing diligence in attempting service."

Respondent made no further attempt to serve either defendant. At the August 1st progress call, he filed the same affidavit as he had four months earlier, and the matter was continued again until November 21, 2003.

Before the next status date, Respondent filed a motion for leave to serve Gilasevitch by registered mail. Another attorney appeared for Respondent at the hearing on the motion, and the motion was granted. Respondent mailed a copy of the alias summons and complaint to Gilasevitch on November 10, 2003. Four days later, the Illinois Supreme Court entered an order suspending Respondent from the practice of law for two years. In In re Milks, 99 CH 20 (Review Board, July 2, 2003), petitions for leave to file exceptions denied, No. M.R. 18895 (November 14, 2003), Respondent was found to have committed misconduct that included the solicitation of prospective clients through the use of non-lawyers, assistance in the unauthorized practice of law and failure to promptly deposit settlement funds.

Respondent assumed that the attorney who appeared for him at the hearing on his motion would have asked for additional time before the case appeared on the progress call again,

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as the certified mail receipt showing service on Gilasevitch would not be returned by the date on which it had previously been scheduled. The attorney had not done so. When the case was called on the November 21st progress call, no one appeared on Kinnie's behalf and the case was dismissed for want of prosecution.

Supreme Court Rule 764(c) provides that a Respondent must notify his clients of his suspension within 21 days of the entry of the order suspending him. On December 30, 2003, 46 days after he was suspended, Respondent wrote Kinnie advising her that because of his suspension, he would be unable to represent her during that period and that she had the right to obtain another attorney. Respondent further advised Kinnie to contact him if she would like her file and other documents, and she did so. On January 16, 2004, Respondent mailed her the contents of her file and a letter stating "[y]ou will need to contact an attorney right away for your case." Respondent had filed a motion to withdraw as Kinnie's attorney on December 30th, and sent notice of the motion to Gilasevitch but not to Kinnie. The motion was stricken, since the case had been dismissed on November 21st.

According to Respondent, it is customary for the Circuit Court of Cook County to send a postcard to the plaintiff's attorney whenever a case is dismissed for want of prosecution. He did not receive one in this case. He claimed that he was unaware of the dismissal until he was informed of this by Kinnie, who learned that her case was no longer viable when she attempted to hire another attorney.

Kinnie testified that after she received the $1,666, there was very little communication from Respondent. She would call him every month or so to check on the status of her case, but usually could not reach him. Eventually, he would tell her that he was in the process of obtaining service on the defendants and he would contact her when he had some more information.

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This continued until Kinnie received Respondent's letter informing her that he was suspended. She telephoned Respondent repeatedly and when she finally reached him, asked him to send her his file concerning her case. When she received it, Kinnie gave the file to several personal injury lawyers in an attempt to find a new attorney. After four lawyers told her that they could not take her case, she thought there was nothing she could do.

Determining that Kinnie and Harper's testimony concerning the meaning of the contract was the more credible, the Hearing Board found that Respondent committed all of the misconduct charged in Count I. He also failed to keep Kinnie informed as to the status of her case in Count II, as he did not tell her that her lawsuit had been dismissed and did not inform her of his suspension in a timely manner. The Hearing Board found that there was not clear and convincing evidence of the remainder of the misconduct charged in Count II, however. The Hearing Board found that Respondent did not fail to act with reasonable diligence and promptness, as he maintained viability of Kinnie's case and engaged in settlement discussions on her behalf. For the same reasons, the Hearing Board found that there was not sufficient evidence that Respondent failed to make reasonable efforts to expedite the litigation consistent with Kinnie's best interests. There was no expert testimony presented that his manner of handling the case failed to meet the usual and customary standards. The Hearing Board concluded that Respondent did not engage in conduct prejudicial to the administration of justice or that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, as his client was not harmed.

The factual findings of the Hearing Board are entitled to deference on review, and they will not be disturbed unless they are against the manifest weight of the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). This occurs when the findings appear to be arbitrary, unreasonable and not based on the evidence, and the opposite

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conclusion is clearly apparent. Leonardi v. Loyola University, 168 Ill.2d 83, 106, 658 N.E.2d 450, 212 Ill. Dec. 968 (1995); In re Jakubowski, 93 CH 455 (Review Board, May 10, 1996), approved and confirmed, No. M.R. 12728 (September 24, 1996). Respondent first argues that the Hearing Board's findings that he converted Kinnie and Harper's money, and failed to deliver funds to his clients that they were entitled to receive, in violation of Rule 1.15(b) are against the manifest weight of the evidence.

Respondent claims that the Administrator did not present clear and convincing evidence of the elements of conversion required by the Illinois Criminal Code, as set forth in Illinois Pattern Instruction 800.02B. However, disciplinary proceedings are not criminal in nature. In re March, 71 Ill.2d 382, 395, 376 N.E.2d 213, 17 Ill. Dec. 214 (1978). The object of our inquiry is not to punish Respondent, but to determine whether he is "a proper person to be permitted to practice his profession." In re Andros, 64 Ill.2d 419, 423, 356 N.E.2d 513, 1 Ill. Dec. 325 (1976). Therefore, the elements of 720 ILCS 5/16-1 are not applicable here. For purposes of attorney disciplinary proceedings, conversion is established when it is shown that the amount in an account in which an attorney holds client funds has fallen below the amount that belongs to his clients. In re Rosin, 156 Ill.2d 202, 215, 620 N.E.2d 368, 189 Ill. Dec. 400 (1993); In re Cheronis, 114 Ill.2d 527, 534-35, 502 N.E.2d 722, 104 Ill. Dec. 225 (1986).

Respondent deposited the checks for Kinnie and Harper's medical expenses in his client fund account at a time that the account was overdrawn by $1,156.46. Eight days later, after Respondent had paid himself and some of his personal bills, the account was overdrawn again by $544.53. There is clear and convincing evidence that Respondent engaged in conversion, if the funds Respondent deposited into his client trust account did not belong to him and he used those funds to pay his personal expenses.

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According to Respondent, his contracts with Kinnie and Harper entitled him to one-third of all funds collected. According to his clients, Respondent agreed that his fees would come only from the amounts recovered from the person responsible for the accident. The Hearing Board determined that the testimony of Kinnie and Harper was the more credible, and its findings must be given great deference, as it was able to observe the witnesses' demeanor and judge their credibility. In re Spak, 188 Ill.2d 53, 66, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999). Additionally, as the Hearing Board noted, the testimony of Respondent's clients was supported by the contracts themselves, in which Respondent crossed out and initialed the provision stating that Kinnie and Harper agreed to pay him "a sum equal to 33 1/3% of the gross amount collected for medical payment."

The Hearing Board's findings that Respondent engaged in conversion and failed to deliver funds to his clients to which they were entitled were not against the manifest weight of the evidence. The fact that his clients signed the settlement statement does not indicate in any way that they agreed to a modification of their contracts, as Respondent contends. Harper testified that at the time she endorsed the checks, she was not aware that it was for payment of medical expenses. Kinnie did not question the division of funds, as she trusted Respondent's judgment and believed he would do it correctly. The betrayal of that trust by converting his client's funds tended to defeat the administration of justice and bring the legal profession into disrepute, in violation of Supreme Court Rule 770. In re Odom, 01 CH 69 (Review Board, September 10, 2004), Respondent's petition for leave to file exceptions denied, No. M.R. 19772 (May 19, 2005). Additionally, we conclude that the Hearing Board's determination that Respondent engaged in dishonest conduct by taking fees from his clients' payments for medical expenses, after he had specifically given up that right in his contracts with both women was not against the manifest weight of the evidence.

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Respondent also objects to the Hearing Board's finding that his conversion and other misconduct in Count I was prejudicial to the administration of justice. He notes, correctly, that there was no evidence that his misconduct involved adverse discriminatory treatment of anyone on the basis of race, sex, religion or the like. This is not the only manner in which a violation of Rule 8.5(a)(5) may occur.

A violation of Rule 8.4(a)(5) requires clear and convincing proof of actual prejudice to the administration of justice. In re Vrdolyak, 137 Ill. 2d 407, 425, 560 N.E.2d 840, 148 Ill. Dec. 243 (1990). This has been further interpreted to require the involvement of the judicial process. In re McAvoy, 03 CH 8 (Review Board, August 16, 2005), approved and confirmed, No. M.R. 20463 (January 13, 2006). The evidence in Count I shows that Respondent entered into contracts with Kinnie and Harper in which he waived his right to any portion of their medical payments. Nevertheless, when he received the payments from State Farm, he took one-third of them as his fee. He also kept the money intended for his clients' medical expenses. He then converted the funds he had wrongfully retained.

No lawsuit had been filed at this time. The judicial process was not involved. Respondent merely wrote the insurance company to inform them that he represented Kinnie and Harper, and two days later, State Farm sent him the checks.

The Administrator argues that "in its broader sense," Rule 8.4(a)(5) "applies to any conduct that undermines the integrity of the legal system, including conversion of funds belonging to others," citing In re McBride, 95 SH 877 (Review Board, December 12, 1997), Respondent's petition for leave to file exceptions denied, No. M.R. 14540 (June 30, 1998) in support of his argument. In that case, the respondent was disbarred for a pattern of intentionally dishonest misconduct that included conversion of client funds. One count involved funds for the purchase of a home that her clients gave to the respondent to hold in escrow. McBride deposited

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the funds in an account that was not a trust account, and used part of them to pay her personal bills. The respondent's misconduct was found to be prejudicial to the administration of justice, although the judicial process does not appear to have been involved. McBride, has not been cited as authority on this basis, however.

More recently, in In re Odom, supra, the respondent converted funds received from State Farm Insurance Company in settlement of a personal injury matter. The Review Board rejected the Administrator's argument that Odom's misconduct violated Rule 8.4(a)(5), concluding that "[f]or there to be prejudice to the administration of justice within the meaning of this Rule, it is our judgment, until the Supreme Court states otherwise, that there must be a tribunal involved, and that was not the case here." 01 CH 69 (Review Board, September 10, 2004), Respondent's petition for leave to file exceptions denied, No. M.R. 19772 (May 19, 2005).

Reviewing this matter de novo, In re Discipio, 163 Ill.2d 515, 527, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994), we conclude on the basis of Odom, supra, that as a tribunal did not play a part in the misconduct found in Count I, there was no violation of Rule 8.4(a)(5) in that count.

Next, the Administrator objects to the Hearing Board's finding that there was not clear and convincing evidence that Respondent failed to act with reasonable diligence and promptness in representing Kinnie and that he failed to make reasonable efforts to expedite her lawsuit consistent with her interests, as charged in Count II. The Hearing Board's determination resulted from the lack of proof that Respondent's efforts failed to meet usual and customary standards.

The Administrator argues that the finding that these charges were not sufficiently proved is clearly erroneous, but the Review Board has declined to adopt that standard of review.

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See In re Feeley, 03 CH 78 (Review Board, December 30, 2005), Administrator's petition for leave to file exceptions allowed, sanction modified, No. M.R. 20740 (March 21, 2006). The Administrator apparently takes issue with the Hearing Board's finding that Respondent's conduct was not unreasonable, and therefore our standard of review is whether that finding is against the manifest weight of the evidence. In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997).

The evidence showed that although Kinnie's lawsuit was not filed until shortly before the statute of limitations expired, Respondent had been engaged in negotiations with the defendants' insurance company on Kinnie's behalf. When this proved fruitless and it was necessary to file suit in order to toll the statute, Respondent did so.

Respondent's first attempt at service upon Amma Trucking was unsuccessful because the company had moved. He was also unsuccessful in attempting to serve Gilasevitch, who was a long-haul trucker who lived in his truck. At least initially, Gilasevitch was not cooperative about accepting service. The Hearing Board did not consider the Administrator's showing that plaintiffs in another lawsuit had been able to serve the same defendants to equate to clear and convincing proof that Respondent had failed to make reasonable efforts expedite litigation consistent with Kinnie's interests.

Respondent described the purpose of the Circuit Court's progress call as to review the case, "to determine whether [he had] gotten service, and whether the case [was] moving along." As the plaintiff's attorney, he was required to appear with an affidavit showing diligence, and to explain to the court what was being done to obtain service. According to the orders entered in Kinnie's case at the progress call, the matter could have been dismissed if Respondent's showing of diligence was not sufficient. Respondent's testimony that continuation of the case indicated that diligence had been exercised was not disputed.

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Not every delay in a case constitutes neglect. In re Schildman, 00 SH 60 (Review Board, July 3, 2003), Administrator's petition for leave to file exceptions allowed; sanction modified, No. M.R. 18905 (November 20, 2003). The Hearing Board found that Respondent maintained viability of Kinnie's lawsuit, engaged in settlement discussions and with one exception, appeared in court on her behalf. Therefore, it found that there was not clear and convincing evidence that Respondent's actions were unreasonable in this case.

The one exception was the progress call date, when no one appeared and Kinnie's case was dismissed for want of prosecution. Respondent testified that another attorney had appeared on the motion for leave to obtain service by mail. Since there was no way that proof of service would have been returned by the next progress call date, Respondent assumed that the date had been continued.

While failure to appear in court can result in a finding of neglect, it is appropriate to consider a respondent's conduct in a case as a whole in determining whether a particular error constitutes neglect. In re Snowden, 91 CH 188 (Review Board, January 14, 1994), approved and confirmed, No. M.R. 10039 (May 19, 1994). There is authority for the finding that one mistake by an attorney does not constitute neglect when he is otherwise actively pursuing the case. See In re Mason, 122 Ill.2d 163, 169-70, 522 N.E.2d 1233, 119 Ill. Dec. 374 (1988); In re Boyd, 96 CH 926 (Hearing Board, February 18, 1999), [complaint dismissed]; In re Gregory, 00 CH 32 (Hearing Board, January 29, 2002), [complaint dismissed].

The cases cited by the Administrator in support of his argument differ significantly from Respondent's case. In both In re Arnold, 99 Ch 49 (Hearing Board, September 6, 2000), approved and confirmed, No. M.R. 17403 (March 22, 2001) and In re Mendelson, 95 CH 339 (Review Board, August 2, 1996), Administrator's petition for leave to file exceptions allowed, sanction modified, No. M.R. 12894 (November 26, 1996), findings of

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misconduct were made by the Hearing Board, which were later upheld. In In re Smith, 168 Ill.2d 269, 283-84, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995), the court upheld the Hearing Board's finding that the respondent had engaged in a pattern of neglect, noting that it was necessary to show deference to that finding, due to the superior position that the Hearing Board holds when it comes to resolution of factual issues.

The Hearing Board in this case carefully reviewed the evidence of work performed by Respondent on Kinnie's behalf and determined that there was not clear and convincing evidence of misconduct. Its finding was not against the manifest weight of the evidence.

Finally, we consider the appropriate sanction in this case. The majority of the Hearing Board recommended that Respondent be suspended from practice for a period of two years, and pay restitution to his clients, but its recommendation is advisory only. In re Twohey, 191 Ill.2d 75, 85, 727 N.E.2d 1028, 245 Ill. Dec. 294 (2000). In making its own recommendation, the Review Board must consider the case based on its own particular facts and circumstances, yet keep in mind that the purpose of discipline is not to punish the individual respondent, but to protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). Aggravating and mitigating factors are relevant. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991).

Respondent objects to the Hearing Board's recommendation on the basis that the Administrator did not establish a prima facie case, which is an argument that we have rejected. Even if he engaged in misconduct, Respondent claims that the Hearing Board's recommendation is excessive and therefore it constitutes punishment. Respondent does not suggest an alternative sanction.

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Our recommendation should be consistent with the sanction imposed in similar cases. In re Timpone, supra, 157 Ill.2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55. The Administrator contends that similar cases require a two-year suspension.

We have examined the cases relied upon by the Hearing Board, and conclude that they support the majority's recommendation. In In re Bizar, 97 Ill.2d 127, 454 N.E.2d 271, 73 Ill. Dec. 411 (1983), the respondent represented two clients in a personal injury matter, and settled the case for $7,500. According to his agreement with his clients, he was entitled to $2,500 from the settlement, but he stated that his clients had agreed to loan him an additional $3,000, which he used to pay his personal and office expenses. One client testified that he was not informed that the respondent had the money until two months after the check had been received, and agreed to accept less than the $5,000 to which he and his wife were entitled because Bizar claimed that he was having financial difficulties and could not pay him the entire amount.

The court agreed with the Hearing and Review Boards that Bizar's claim that the money was a loan was not credible. Because the respondent had repaid the money, with interest, and had not been previously disciplined, the court suspended him for one year. A greater period of suspension is justified in Respondent's case, as his conversion of funds occurred while another disciplinary matter was pending against him, he has not repaid any of the money and he showed no remorse for his misconduct.

The respondent in In re Cutrone, 112 Ill.2d 261, 492 N.E.2d 1297, 97 Ill.2d 424 (1986), was retained to procure the release of his client, Sandra Korb, after she was arrested in California on a warrant from Illinois. Respondent obtained $25,000 apiece from Korb's mother and boyfriend, who testified that Cutrone told them that the money would eventually be

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refunded. According to the respondent, he had advised Korb's friend that his fees would be $25,000. None of the money was returned to the parties until after they filed suit.

The court found that $25,000 was not a reasonable fee for the representation that the respondent provided and agreed that he had converted some, but not all, of the money. It suspended him for two years.

We have also examined the case of In re Joyce, 133 Ill.2d 16, 549 N.E.2d 232, 139 Ill. Dec. 720 (1989). Joyce was contacted by an Indiana attorney, John Raikos, to register and collect a judgment entered in that state. The two men orally agreed to divide any fee received. Sometime afterward, the parties agreed to settle the case for $2,000, without the knowledge of their attorneys. The defendant mailed a $2,000 check payable to "Thomas M. Joyce, As Attorney" to the respondent, who endorsed the check and used it for his personal expenses.

The respondent's claim that Raikos told him that the $2,000 was payment for attorney's fees was not found to be credible. The court suspended the respondent for two years, on the basis that he had "simply appropriated the client's funds, claiming that he was entitled to the money as a fee for his services. Throughout these proceedings, respondent has continued to claim entitlement to the funds he converted, and he has made no effort at restitution." In re Joyce, id., 133 Ill.2d at 32, 549 N.E.2d 232, 139 Ill. Dec. 720. It could be argued that Joyce involved additional misconduct that is more serious than is present here. E.g., the respondent issued a check for $800 to the plaintiff that he considered to be "a gratuitous payment to prevent [him] from carrying out certain threats," even though the notation on the check stated that it was settlement proceeds. The check was returned for insufficient funds, and the plaintiff had to hire another attorney to collect it. In re Joyce, id., 133 Ill.2d at 30, 549 N.E.2d 232, 139 Ill. Dec. 720.

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The court also considered mitigating evidence presented by the respondent, including the fact that he had not been previously disciplined.

Finally, Respondent objects to the order of restitution recommended by the Hearing Board on the basis that "funds" were paid to the South Kedzie Clinic as payment in full of the amounts owed by his clients, so that no money is due to Kinnie and Harper. Respondent makes no mention of the fees that he paid to himself.

Restitution is appropriate when there is an improper benefit to the attorney. In re Connors, 03 Ch 93 (Review Board, August 26, 2005), approved and confirmed, No. M.R. 20523, (January 13, 2006); In re Fleischman, 135 Ill.2d 488, 497-98, 553 N.E.2d 352, 142 Ill. Dec. 838 (1990). The facts show that Respondent took one-third of the payments from State Farm for Kinnie and Harper's medical expenses, after expressly eliminating any right to do so from his contracts with both women. That money must be returned to his clients in order to keep him from profiting from his unethical behavior. Although Respondent told Kinnie that the remaining third of the funds would be paid to the clinic, it was not.

The evidence showed that both women owed more to the clinic than the $1,666.66 that the clinic theoretically was going to receive, and they owed payment for services rendered by other medical providers, as well. It is clear that the Hearing Board did not consider the testimony that the $1,000 Respondent gave Stafford for gambling purposes was payment of his clients' medical expenses to be credible, and therefore, Respondent wrongfully retained the final third of the State Farm checks as well. As there is no evidence of any medical liens having been filed in this case, restitution should be paid to Kinnie and Harper.

After consideration of all the circumstances, we affirm the Hearing Board's factual findings and findings of misconduct, except that we conclude that there was no violation of Rule 8.4(A)(5) in Count I. We recommend that Respondent, David Arnold Milks, be

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suspended from the practice of law for a period of two years and until he pays restitution in the amount of $3,333.33 to Celestine Kinnie and $3,333.33 to Barbara Harper.

Date Entered: 19 February 2009

Respectfully Submitted,

William R. Quinlan
David F. Rolewick
Thomas A. Zimmerman, Jr.