Filed December 12, 2008
In re William Earl Brooks
Commission No. 05 CH 47
Synopsis of Review Board Report and Recommendation
The Administrator-Appellant filed a five-count amended complaint against Respondent-Appellant William Earl Brooks, charging him with misconduct that included three instances of neglect, filing a case in bad faith and failing to promptly refund unearned fees to two clients. Count III of the complaint was dismissed just prior to the hearing. The remaining counts alleged that Respondent filed suit or took other action on behalf of a client when he knew or reasonably should have known that such action would serve merely to harass or maliciously injure another, in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct, (Count I); advanced a claim he knew was unwarranted under existing law, in violation of Rule 1.2(f)(2), (Count I); failed to provide competent representation, in violation of Rule 1.1, (Count I); initiated a proceeding where there was no basis for doing so that was not frivolous, in violation of Rule 3.1, (Count I); failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 (Count II, IV and V); failed to respond to a client's reasonable requests for information about the status of their legal matter, in violation of Rule 1.4(a), (Counts IV and V); failed to promptly refund any part of a fee paid in advance that had not been earned, in violation of Rule 1.16(e), (Count V); engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), (Counts I, II, IV and V); 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, (Counts I, II, IV and V). Respondent admitted some 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 Respondent committed all of the misconduct charged in Counts I, II and V of the complaint, and none of the misconduct charged in Count IV. It recommended that Respondent be suspended from the practice of law for one year. Because Respondent's previous discipline had not deterred him from committing further misconduct while on probation and because the evidence showed that Respondent was not mentally fit to practice, the Hearing Board further recommended that his suspension continue until further order of court.
The case was before the Review Board on exceptions filed by the Respondent. He objected to the Hearing Board's recommended sanction and claimed that he should be placed on probation instead. The Administrator argued that both the Hearing Board's findings and its recommended sanction should be upheld.
The Review Board affirmed the Hearing Board's findings of fact and findings of misconduct. It recommended that Respondent be suspended from the practice of law for six months and until further order of court.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
WILLIAM EARL BROOKS,
Commission No. 05 CH 47
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellee filed a five-count complaint against Respondent-Appellant William Earl Brooks, charging him with misconduct that included three instances of neglect, filing a case in bad faith and failing to promptly refund unearned fees to two clients. Count III of the complaint was dismissed just prior to the hearing and is not further discussed. The remaining counts of the complaint alleged that Respondent filed suit or took other action on behalf of a client when he knew or reasonably should have known that such action would serve merely to harass or maliciously injure another, in violation of Rule 1.2(f)(1) of the Illinois Rules of Professional Conduct, (Count I); advanced a claim he knew was unwarranted under existing law, in violation of Rule 1.2(f)(2), (Count I); failed to provide competent representation, in violation of Rule 1.1, (Count I); initiated a proceeding where there was no basis for doing so that was not frivolous, in violation of Rule 3.1, (Count I); failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 (Count II, IV and V); failed to respond to a client's reasonable requests for information about the status of their legal matter, in violation of Rule 1.4(a), (Counts IV and V); failed to promptly refund any part of a fee paid in advance that had not been earned, in violation of Rule 1.16(e), (Count V); engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), (Counts I, II,
IV and V); 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, (Counts I, II, IV and V). Respondent admitted some 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 Counts I, II and V of the complaint, and none of the allegations of misconduct charged in Count IV, had been proved by clear and convincing evidence. It recommended that Respondent be suspended from the practice of law for one year. Respondent had previously been suspended for 24 months, with the final 22 months stayed by probation subject to certain conditions, for misconduct involving two findings of conversion that resulted from careless bookkeeping, neglect of a case and three instances of misrepresentation. Because Respondent's prior discipline had not deterred him from committing further misconduct while he was on probation and because there was evidence presented that indicated that Respondent was not mentally fit to practice, the Hearing Board further recommended that his suspension continue until further order of court.
The case is now before the Review Board on Respondent's exceptions. He objects to the Hearing Board's recommended sanction and suggests that he should be placed on probation instead. The Administrator urges us to uphold the Hearing Board's findings and its recommended sanction.
The facts are summarized below for purposes of this report. Further details can be found in the Hearing Board's Report and Recommendation.
On January 13, 2003, Karen Washington filed her fourth petition for voluntary bankruptcy pursuant to Chapter 13 of the United States Bankruptcy Code. Among the six creditors listed in her petition was Sterling Bank & Trust (Sterling), which held a secured first mortgage on Washington's home. Sterling had instituted foreclosure proceedings against Washington in May 2002 but pursuant to the provisions of the Bankruptcy Code, those proceedings were automatically stayed when the fourth petition was filed.
Washington had filed her petition pro se. On or about March 6, 2003, Respondent agreed to represent her in this matter. He filed his appearance on the date of Washington's confirmation hearing. As there were problems with her bankruptcy plan, the matter was continued.
Sterling first referred Washington's case to an attorney for foreclosure in 1997. The bank was listed as a creditor in all four of Washington's bankruptcy petitions. At the time that Respondent filed his appearance, Washington was in default concerning both her payments to the trustee and the currently monthly mortgage payments that she had agreed to pay under the proposed plan. On May 7, 2003, the bankruptcy trustee filed a motion to dismiss Washington's case for cause, as no plan had been confirmed and Washington was not making timely payments. Sterling filed a "Motion to Modify the Automatic Stay or to Dismiss with Bar to Refiling." The bank was owed a considerable sum and it claimed the petition had been filed in bad faith.
Respondent filed no response to either motion and on May 27, 2003, the court entered an order denying confirmation of the plan and dismissing the case, with a 180-day bar to refiling. Washington was prohibited from filing another bankruptcy petition until November 23, 2003. The effect of the order was to give Sterling sufficient time to complete the foreclosure
proceedings and sell the property before Washington could stay those proceedings again by filing another petition.
Respondent did not file a notice of appeal from the dismissal. Instead, on June 6, 2003, he filed a "Motion to Vacate Order to Modify the Automatic Stay." The motion was denied, as the bankruptcy court had dismissed the case rather than modifying the stay. Respondent filed an amended motion to vacate the stay and a motion to vacate the dismissal. The evidence in the case does not indicate that these motions were ever ruled upon.
Meanwhile, Sterling obtained a judgment of foreclosure against Washington's property and published notice of its sale, which was scheduled for November 20, 2003. November 20th was the 177th day of the bankruptcy court's 180-day bar prohibiting Washington from filing another bankruptcy petition. Nevertheless, Washington, represented by Respondent, filed a fifth Chapter 13 petition that morning. The only creditor listed was Sterling Bank. Because of the automatic stay, the bank was prohibited from going forward with the scheduled sale of the property.
Sterling continued the sale date until January 16, 2004 and on December 4, 2003, filed a "Motion to Annul Stay and Dismiss Case With a 180 Day Bar to Refiling and for the Imposition of Sanctions." The sanctions, which Sterling requested be imposed on Respondent rather than his client, were to pay for damages incurred by the bank as a result of the filing of Washington's petition in violation of the order prohibiting her from doing so.
Respondent filed a motion to continue the hearing on Sterling's motion, and noticed it for hearing at the same time as Sterling's motion. He failed to appear on that date, and the court dismissed the petition, annulled the stay, granted Sterling leave to proceed with the foreclosure sale and ordered Washington to pay $1,307.62 to the bank. Washington's pro se
attempt to vacate the order was stricken. Sterling was able to sell the property on January 16, 2004 and after filing a motion for civil contempt against Washington, received payment of the $1,307.62 from Respondent.
On December 19, 2002, Geraldine Smith Campbell filed a petition for voluntary bankruptcy pursuant to Chapter 13 of the United States Bankruptcy Code. The only creditor listed on her petition was Chase Manhattan Mortgage, which held the mortgage on Campbell's home. Campbell filed her petition pro se but as she had some difficulty with her plan, she retained an attorney to help her get the plan confirmed.
Hearings in Campbell's case took place in Joliet. Confirmation of her payment plan apparently took place on May 23, 2003, at which time an agreed order was entered stating that if the case was dismissed, Campbell would be barred from filing another petition for 180 days. This was followed by another order on July 11, 2003, stating that if Campbell fell two months behind in her payments under the bankruptcy plan, she would have fifteen days from the date that the bankruptcy trustee sent her notice of the default to completely cure the default. If the trustee did not receive the entire amount due by that time, her case would be dismissed without further hearing. Gerald Mylander, who represented the bankruptcy trustee in Campbell's case, acknowledged that this was an unusual order. It was entered because this was Campbell's third bankruptcy petition.
On September 23, 2003, notice was mailed to Campbell that she was in violation of the order entered July 11, 2003 in that she was more than two months behind in her payments. If she did not pay $2,706.42 within fifteen days, the case would be dismissed. Mylander
received the payment, in full, on or about October 16, 2003. The case had automatically been dismissed one week earlier.
On October 22, 2003, Campbell filed a pro se motion to vacate the dismissal, explaining that she had been unable to pay because of medical expenses incurred and trauma resulting from injuries suffered by her son when a lawnmower exploded in his face. In Mylander's opinion, it was likely that the case would have been reinstated since she had paid the arrearage, except that she had not given notice of her motion to Chase Manhattan Mortgage. The court continued the case until November 14, 2003 to allow her to provide the mortgage company with notice. Campbell appeared on that date and stated that she was in the process of hiring an attorney to help her. The court advised her that any attorney representing her should file his appearance in the case by December 1st and should appear on December 5th with an amended motion to vacate that had been properly noticed to all parties.
On December 5th, Campbell appeared and stated that she had hired Respondent and paid him $200. Respondent did not appear and had not filed his appearance or an amended motion. The court denied the motion to vacate. On its own motion, it ordered Respondent to appear at 11 a.m. on January 9, 2004 for a hearing pursuant to Section 329 of the Bankruptcy Code, which allows for a review of an attorney's transactions with the debtor.
In response, Respondent filed another motion to vacate the order of dismissal and set it for the same date and time as the Section 329 hearing. According to Mylander, the motion had several procedural problems. There was no value to the motion, as it could not be granted. Respondent did not appear on January 9th until approximately 1:15 p.m. By that time, the court had released Campbell, so it continued the matter until January 23, 2004 and instructed Respondent to correct the defects of his motion.
Respondent did not appear at the time scheduled. The court denied the motion to vacate based on his failure to prosecute it. On February 13, 2004 it ordered Respondent to refund the $200 to his client on or before March 15, 2004, and to appear in court at 11 a.m. on March 19, 2004 if the payment had not been made.
Respondent appeared on March 19th at 11:40 a.m., but at 11:18 a.m., the court had instructed the trustee to consider civil contempt proceedings. Respondent paid the $200 but on March 25, 2004, the court suspended him from representing parties in bankruptcy cases filed in Joliet for ninety days.
Respondent explained in his motions to vacate that his chronic inability to get from Chicago to Joliet by the time scheduled was the result of the tardiness of his wife's caretakers. His wife was bedridden with bone cancer and could not be left alone. This had been a problem for him in Washington's case as well.
Judge Bruce Wallace Black, who presided over the Campbell case, had no reason to believe Respondent's explanation was not true. He suspended Respondent despite that fact, as he felt it did not excuse his chronic lateness and because he believed that Respondent's conduct had been very detrimental to his client.
In Mylander's opinion, at the time that Respondent became involved in Campbell's case, there was still hope that her home could be saved. She lost her home because Respondent did not do what he should have.
In October 2003, Shirley Sartin-Randle's father, Cesmasteen Randle, was sick, mentally unstable and suffering from Alzheimer's disease. He was unable to care for himself and foreclosure proceedings had been filed against his home.
On October 7, 2003, Sartin-Randle consulted Respondent. Respondent agreed to represent her in her attempt to seek guardianship of her father and over his estate, which included two pieces of property that were in jeopardy of being seized for back taxes. Sartin-Randle gave respondent a notice from Banco Popular Bank stating that her father's house was in foreclosure. She also gave him $300 and received a receipt that stated that the money was "for foreclosure." Sartin-Randle did not know why, as her main concern was to become her father's guardian so that she would be able to stop the foreclosure.
Judgment was entered in the foreclosure case on October 8, 2003. Over the next few months, Sartin-Randle attempted unsuccessfully to reach Respondent by telephone on numerous occasions. She finally met with him again in his office on January 12, 2004, and Respondent assured her that he was working on the foreclosure matter. Sartin-Randle was more concerned about the guardianship, as she needed to be appointed in order to take care of her father's bills. Respondent advised her not to worry. He asked for, and received another $200.
Once again, Sartin-Randle left numerous messages for Respondent and never received a return call. On May 14, 2004, she went to Respondent's office to ask about her case and again, Respondent advised her not to worry as he would take care of it. Despite the lack of information Respondent provided, Sartin-Randle trusted him, as he was related to her husband. She paid Respondent another $1,500, which he promised would be her final payment.
The same pattern of unreturned calls continued for another six months. On October 29, 2004, a petition was filed by the Cook County Office of the Public Guardian, asking to be appointed as Sartin's guardian. The petition alleged that Sartin was suffering from dementia and neglect by his family members. By the time that Sartin-Randle finally reached Respondent on November 29, 2004, Catholic Charities, her father's guardian-ad-litem, had placed him in a
nursing home. This was what she had hoped to avoid by retaining Respondent, as both she and her brother were certified nurse's assistants and she felt that they could provide better care for him. On December 6, 2004, after a finding of dementia, the Public Guardian was appointed as plenary guardian of Sartin's person and estate.
Cesmasteen Sartin's home had been sold at public auction on March 12, 2004, after judgment was entered in the foreclosure case. On August 22, 2005, the Public Guardian's petition to abandon his interest in the property was granted. The foreclosure judgment was more than the property was worth.
Sartin-Randle told Respondent that she wanted her money back. Respondent initially agreed to return half of it. After several delays, promises to pay and partial payments, Sartin-Randle received refund of the entire amount shortly before the hearing in this case.
There was no evidence in either the court file in the foreclosure matter, or Respondent's office file, that Respondent had taken any action in the matters for which Sartin-Randle had hired him.
RESPONDENT'S MENTAL STATE
Before the hearing began in this case on July 17, 2006, counsel for the Administrator presented a joint motion to continue the matter for one week. Respondent's attorney had advised her shortly beforehand that Respondent had seen a psychologist on July 13th and that he intended to use the results of that evaluation for mitigation purposes. The Administrator therefore wished to have Respondent examined by a medical professional of his own choosing. The parties agreed that the Administrator would present all of the witnesses that were present that day, following which the hearing would be continued so that an examination of Respondent could be conducted.
Respondent was referred by the Administrator to Stafford C. Henry, M.D., who conducted a general psychological evaluation, the purpose of which was to
explore and discuss the circumstances surrounding instances of professional misconduct alleged on the part of Mr. Brooks, assess for the presence of a psychological condition and for set of psychiatric symptoms which might mitigate and/or explain these alleged instances of professional misconduct, assess for the presence of substance abuse and for dependence, conduct a fitness for duty evaluation and if indicated, render treatment recommendations.
Dr. Henry met with Respondent on September 13, 2006 and again on January 3, 2007. In between those interviews, he referred Respondent for a neuropsychological evaluation, involving a battery of tests conducted by David E. Hartman, Ph.D. Respondent also had a physical examination.
It was Dr. Henry's opinion that Respondent suffered from major depressive disorder and dementia. His depressive symptoms had first manifested themselves approximately four years earlier, which was during the time that his wife was undergoing treatment for breast cancer. She had four surgeries, followed by radiation and chemotherapy, but the cancer spread to her bones and liver. She was bedridden for two years, during which Respondent struggled to care for her with the help of neighbor volunteers and relatives before being approved for insurance coverage of a caregiver. He also took care of their teen-aged son. Mrs. Brooks died on September 15, 2005, and Respondent's mother died two months later. Respondent's older son spent nine months of the year prior to their deaths serving in the military in Iraq. It was further Dr. Henry's opinion that to address the symptoms of his depression, Respondent would need both psychotherapy and psychiatric treatment.
Regarding Respondent's symptoms of dementia, Respondent also suffered from untreated diabetes and hypertension. This combination can result in multiple mini-strokes in the
brain that frequently cause non-reversible damage to the brain tissue. The evidence indicated that this was the most likely cause of Respondent's dementia.
Tests performed by Dr. Hartman showed that Respondent's cognitive functioning was impaired, in that his ability to problem solve and strategize was affected and he suffered from organizational difficulties and memory problems. Dr. Henry was of the opinion that Respondent's impairment played a role in his misconduct in the Washington case, but that it was not connected to the charges concerning Geraldine Smith Campbell or Shirley Sartin-Randle. However, it was also his opinion that Respondent's symptoms of dementia "preclude[d] him from consistently and appropriately attending to the needs of his clients" in accordance with the Rules of Professional Conduct. Dr. Hartman also found that Respondent's condition was not compatible with continuation of an independent law practice.
While both doctors held out little hope for improvement in Respondent's condition, it was their opinion that his fitness to practice could be revisited in the future if treatment and monitoring suggested improvement in his functioning.
At the prehearing conference on January 30, 2007, Respondent's attorney stated that he had received Dr. Henry's report two days earlier and needed some time to review it. The hearing date was continued and at the prehearing conference that followed, Respondent's attorney stated that his client was being seen by a psychiatrist who was arranging for him to be seen by other doctors. This was the first indication that Respondent intended to present independent psychiatric evidence. Counsel for the Administrator objected. It had been nine months since Respondent had first raised this issue, and the report pursuant to Commission Rule 253 that he had filed stated that he had no witnesses. The Chairman gave Respondent 21 days to identify any witnesses who would be testifying on his behalf.
At the next prehearing, Respondent provided counsel for the Administrator with the names and addresses of five medical personnel. There was no indication as to which of them would be called as witnesses. Counsel for Respondent stated that he had no reports from any of them. He had asked for some additional tests to be performed, which had not happened as yet, but he expected that only one person on the list would testify. The Chairman advised him that if he did not disclose his witnesses by May 16th, none of them would do so.
No further information was provided by Respondent. The Administrator's motion to bar Respondent from presenting the testimony of any expert witnesses at the hearing, which was unopposed, was granted on June 1, 2007.
At the continuation of the hearing, Respondent testified that he had received treatment for his diabetes and was taking medication for that and for his hypertension. He had also seen a podiatrist for some foot problems associated with his diabetes. He was seeing a psychiatrist approximately twice a month. Respondent was willing to undergo any test and take any medications that his psychiatrist or his physicians recommended.
With the help of his attorney, Respondent had begun using form letters in his practice to keep him better organized.
The Administrator first argues that Respondent's argument should be considered waived because of his failure to comply with Commission Rule 302 (f)(5) concerning the format and content of briefs filed with the Review Board. We note preliminarily that he has also failed to comply with Rule 302(f)(4)'s requirement of a Statement of Facts that contains "the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment and with appropriate reference to the pages of the record on appeal." Respondent, who
is the appellant, states only that "[t]he facts are discussed in the Appellant's Brief and are herein adopted."
Rule 302(f)(5) requires argument, with citation of authorities and the pages of the record relied on. Contentions unsupported by proper authorities and references are considered waived. In re Brill, 03 CH 85 (Review Board, December 29, 2005), Respondent's petition for leave to file exceptions denied, No. M.R. 20757 (May 16, 2006). Respondent's Appellant's Brief contains only a citation of a statute from the Criminal Code. He cites no authorities to support his position, which is that he should be placed on probation.
Parties filing briefs before the Review Board are expected to comply with the Commission Rules. In re Morton, 98 CH 24 (Review Board, October 30, 2000), approved and confirmed, No. M.R. 17272 (March 22, 2001). Rule 302(i) gives the Review Board the authority to strike any brief, or refuse to review any argument that does not do so. However, because of the severity of the sanction recommended by the Hearing Board, which the Administrator argues that we should affirm, we have conducted an independent review of the record and independent research of the issue raised by Respondent, and we will therefore consider the issue on the merits. See In re Weiland, 02 CH 108 (Review Board, August 12, 2005), Administrator's petition for leave to file exceptions allowed, sanction modified, No. M.R. 20431 (November 22, 2005).
No objection is made to the Hearing Board's findings of misconduct. They are supported by the evidence and they are therefore affirmed. Respondent objects to the Hearing Board's recommendation that he be suspended for one year and until further order of court, but that recommendation is advisory only. In re Hopper, 85 Ill.2d 318, 325, 423 N.E.2d 900, 53 Ill. Dec. 231 (1981).
Respondent filed an unwarranted claim, neglected two cases, failed to provide competent representation to a client, failed to respond to his clients' inquiries and failed to return an unearned fee. Harm resulted from his misconduct in all three instances. In making our own recommendation, we consider this case based on its own particular facts and circumstances, while keeping 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).
Respondent takes exception to the fact that he did not receive probation. Supreme Court Rule 772 provides that an attorney who commits misconduct may be placed on probation if he demonstrates that he:
can perform legal services and the continued practice of law will not cause the courts or profession to fall into disrepute;
is unlikely to harm the public during the period of rehabilitation and the necessary conditions of probation can be adequately supervised;
has a disability which is temporary or minor and does not require treatment and transfer to disability inactive status; and
is not guilty of acts warranting disbarment.
The only evidence presented in this case indicates that Respondent is unable to meet the first three requirements. Probation is not an option in this case. We conclude that a period of suspension is required.
We have examined the cases relied upon by the Hearing Board in making its recommendation, and find In re Samuels, 126 Ill.2d 509, 535 N.E.2d 808, 129 Ill. Dec. 43 (1989) to be more egregious than the circumstances here. In that case, the respondent engaged in a pattern of neglect involving four clients and made misrepresentations to all of them. Despite the
fact that all of his clients suffered permanent harm, the respondent insisted that he had done nothing wrong, which caused the court concern about his conduct in the future. In suspending him for one year, the court also considered Samuels' lack of cooperation in the disciplinary proceedings. This included repeatedly filing meritless motions for purposes of delay, arguing irrelevant issues, "question[ing] his clients' veracity and sanity while failing to support his accusations with any credible evidence….belittl[ing] his clients and their cases and [blaming] those who worked for him for the neglect." Id., 126 Ill.2d at 531-32, 535 N.E.2d 808, 129 Ill. Dec. 43.
We have found guidance from the following cases: In In re Adelman, 93 CH 205 (Review Board, September 18, 1995), approved and confirmed, No. M.R. 11790 (January 23, 1996), the respondent accepted retainers from five clients, but failed to perform sufficient legal work to justify them. He then failed to return the fees after being discharged. He made repeated promises to repay the money but did not do so for long periods of time, although he had substantial income. Adelman also neglected one case and previously had been reprimanded for neglect. He was suspended for six months.
In In re Auler, 02 SH 102, (Review Board, March 21, 2005), Administrator's petition for leave to file exceptions denied, No. M.R. 20207 (September 26, 2005), the respondent was charged with six counts of misconduct affecting six different clients. Clear and convincing evidence was presented showing that Auler had failed to provide competent representation, neglected two cases, failed to keep a client reasonably informed and in all six cases, had failed to return unearned fees, among other misconduct. He previously had been censured for wrongfully retaining the fees of two clients. The Review Board found the circumstances similar to In re Adelman, supra, but because of the significant mitigating evidence
presented, it recommended a slightly shorter period of suspension. Auler was suspended for five months and twenty-five days and ordered to make restitution to three clients, as recommended by the Review Board.
The respondent in In re Lawrijian, 01 CH 41, discipline on consent allowed, No. M.R. 19305 (May 17, 2004), was suspended for six months and until she made restitution of $20,000 after she admitted to three cases of misconduct, which concerned neglect of two estate cases where she also paid herself excessive fees. Additionally, she failed to respond to lawful requests for information from the ARDC. Lawrijian was previously suspended for eighteen months and ordered to pay restitution for misconduct that occurred at the same time as the misconduct in this case. She remained suspended five and one-half years later, as none of the restitution had been paid at the time that the order in this case was entered.
Finally, in In re Brown, 04 CH 73 (Review Board, November 7, 2007), Respondent's petition for leave to file exceptions denied, No. M.R. 22127 (March 17, 2008), the respondent was found to have neglected two cases. One of them was a criminal case where his client was incarcerated. Brown also failed to provide competent representation concerning the second case, a property damage claim, failed to keep his client reasonably informed or respond to requests for information and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. He had previously been disciplined, in a case that was pending at the time that the misconduct in this case occurred. Brown was suspended for six months.
After reviewing the cases set forth above, we conclude that an initial suspension of six months is sufficient to satisfy the purposes intended by our disciplinary system.
Respondent also objects to the Hearing Board's recommendation that his suspension continue until further order of court.
Respondent was seen by Dr. Henry in September 2006 and January 2007, and by Dr. Hartman in November 2006. The Hearing Board's Report and Recommendation was issued on September 4, 2007. Respondent argues that the Hearing Board had no information as to the state of his mental health as of that date, and instead relied on "stale" information in recommending that his suspension continue until further order of court.
Respondent misconstrues the passage quoted from the one disciplinary case cited in his briefs in arguing that the burden is on the Administrator to prove by clear and convincing evidence that he is currently unfit to practice law. In re Samuels, supra, 126 Ill.2d at 525, 535 N.E.2d 808, 129 Ill. Dec. 43 noted only that the Administrator must prove the alleged misconduct by evidence sufficient to meet that standard. The Administrator has done so in this case.
As previously noted, the purpose of these proceedings is not to punish an 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, supra, 157 Ill.2d at 197, 623 N.E.2d 300, 191 Ill. Dec. 55. The goal is to determine whether the attorney should be allowed to practice in the profession. In re Smith, 168 Ill. 2d 269, 295, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995); In re Spak, 188 Ill. 2d 53, 67, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999). It is the opinion of both Dr. Henry and Dr. Hartman that Respondent suffers from depression and dementia that render him unfit to practice law, and that it is unlikely that his condition will improve. Respondent provided no evidence to refute their opinions. We conclude that a recommendation that did not advise that Respondent's suspension should continue until further order of court would flagrantly ignore the purpose of these proceedings.
After consideration of all the circumstances of this case, we affirm the Hearing Board's findings of fact and findings of misconduct and recommend that Respondent William Earl Brooks be suspended from the practice of law for a period of six months and until further order of court.
Date Entered: 12 December 2008
Daniel P. Duffy