Filed June 1, 2007
In re Andrew J. Kleczek
Commission No. 05 SH 24
Synopsis of Review Board Report and Recommendation
Andrew J. Kleczek was charged in a three-count complaint with misconduct related to his representation of Keith and Rebecca Skorup in workers' compensation and product liability matters. Count Three of the complaint was dismissed on Respondent's motion prior to the hearing. Count I alleged that Kleczek breached his fiduciary duty to each of the Skorups, represented a client when his representation might have been materially limited by his own interests, in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct, and failed to withdraw when he knew that his continued employment would result in a violation of those rules, in violation of Rule 1.16(a)(2). Count II alleged that he obtained an unreasonable fee, in violation of Rule 1.5(a), and engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, in violation of Rule 8.4(a)(4). Both counts also charged Respondent with overreaching, and engaging in conduct 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 some of the factual allegations of Counts I and II and denied some of them. He denied the allegations of misconduct.
The Hearing Board found that none of the charges of Count I of the complaint had been proved by clear and convincing evidence. The majority of the Hearing Board agreed that the Administrator had presented sufficient evidence that Respondent had committed all of the misconduct charged in Count II. It recommended that he be suspended for ninety days.
The dissenting panel member found that the testimony of the Administrator's primary witness, which was crucial to a finding of misconduct in Count II, was totally incredible. In his opinion, the evidence was not sufficiently clear and convincing to prove the charges of either count.
The case was before the Review Board on Respondent's exceptions. He challenged the Hearing Board majority's findings that sufficient credible evidence that he had engaged in the misconduct charged in Count II had been presented, and claimed that even if those findings were affirmed, he deserved no more than censure. The Administrator argued that the Hearing Board majority's findings and its recommended sanction should be affirmed.
The Review Board affirmed the Hearing Board's findings of fact and findings of misconduct. Upon consideration of the mitigating factors present in the case, it recommended that Respondent be suspended from the practice of law for a period of sixty days.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANDREW J. KLECZEK,
Commission No. 05 SH 24
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellee filed a three-count amended complaint against Respondent-Appellant Andrew J. Kleczek, charging him with misconduct related to his representation of Keith and Rebecca Skorup in workers' compensation and product liability matters. Count III was dismissed on Respondent's motion prior to the hearing, and is not further discussed. Count I of the complaint alleged that Respondent breached his fiduciary duty to each of the Skorups, represented a client when his representation might have been materially limited by his own interests, in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct and failed to withdraw when he knew that his continued employment would result in a violation of those rules, in violation of Rule 1.16(a)(2). Count II alleged that he obtained an unreasonable fee, in violation of Rule 1.5(a), and engaged in conduct involving dishonesty, fraud, deceit and misrepresentation, in violation of Rule 8.4(a)(4). Both counts also charged Respondent with overreaching, engaging in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5), and engaging 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 some of the factual allegations of Counts I and II and denied some of them. He denied the allegations of misconduct.
The Hearing Board found that none of the charges of Count I of the complaint had been proved by clear and convincing evidence. The majority of the Hearing Board agreed that the Administrator had presented sufficient evidence to prove that Respondent had committed all of the misconduct charged in Count II. It recommended that he be suspended for ninety days.
The dissenting panel member found that Rebecca Skorup, whose testimony was crucial to a finding of misconduct in Count II, was a totally incredible witness. In his opinion, the evidence did not prove the charges of either count by clear and convincing evidence. If sufficient proof of the misconduct of Count II had been provided, the dissenting panel member would not have disagreed with the majority's recommended sanction.
The case now comes before the Review Board on the exceptions of the Respondent. He claims that there was not credible evidence sufficient to prove that he engaged in the misconduct of Count II, but that even if we affirm the Hearing Board's findings, he deserves no more than to be censured. The Administrator argues that we should affirm the Hearing Board majority's findings and its recommended sanction.
The facts are briefly summarized below for purposes of this report. Further details can be found in the Hearing Board's Report and Recommendation.
On July 1, 1999, while Keith Skorup was stocking merchandise at Lowe's Home Center, a safety strap malfunctioned and he fell from a cherry picker to the floor eight feet below. As a result of the accident, Keith suffered injuries to his head, back and shoulder. He became disabled by reason of mental impairment and was diagnosed as suffering from organic mood disorder with bipolar and psychotic features, dementia and other mental and physical problems. According to his wife, Rebecca, on a good day following the accident Keith had the abilities of a small child.
Keith's sister-in-law and Respondent's wife were friends. Upon his sister-in-law's recommendation, the Skorups retained Respondent to represent Keith in his workers' compensation claim and to represent both of them in a products liability lawsuit against the manufacturers and vendors of the life and safety harness Keith was wearing at the time that he fell. According to the contracts signed by the parties on October 18, 1999, Respondent would receive twenty percent of any recovery in the worker's compensation matter, and one-third of any recovery in the products liability action.
Respondent filed an application for adjustment of Keith's claim before the Illinois Industrial Commission on October 22, 1999. Keith Skorup v. Lowe's Home Center, Inc., case number 99 WC 56823. On June 29, 2001, he filed the civil action on the Skorups' behalf, which was eventually removed from Jefferson County to the United States District Court for the Southern District of Illinois, Benton Division. Keith Skorup and Rebecca Skorup v. Dallow Fall Protection, Inc., Air Gas Lines Safety and Nacco Materials Handling Group, Inc., case number 01 CV 4223.
Keith and Lowe's insurance company reached a settlement of his workers' compensation claim in or about March 2002. Pursuant to the terms of the agreement, Keith would receive a lump sum settlement of $395,000. Pursuant to the terms of his contract with Keith, Respondent would receive $79,000 plus $6,220 for reimbursement of costs from the settlement. The arbitrator approved the settlement on October 8, 2002, except that he reduced Respondent's fees to $37,612. Respondent felt that he could have successfully appealed the arbitrator's ruling on the reduction of attorney's fees.1 However, as Rebecca was waiting for the funds in order to close on a new house that she was purchasing for herself and the couple's four children, he did not wish to delay payment of the money.2
Respondent, whose office was in Peoria, made several trips to Mount Vernon during the course of this case. Because of the relationship between Keith's sister-in-law and his wife, Respondent testified that he tried to provide the Skorups with the service he would provide to a friend. This frequently included a meal for Rebecca and others at the Lone Star Restaurant. Rebecca, who was lonely and felt overwhelmed by her situation, described these occasions as "moment[s] for me to breathe and feel okay." However, Respondent grew concerned about Rebecca's behavior, which he described as overly friendly. He tried to bring other members of his staff with him to Mount Vernon, as he felt uncomfortable meeting with Rebecca alone. It was clear from her testimony that Rebecca viewed her relationship with Respondent as a very personal one, a relationship which Respondent denied.
The relationship between Respondent and Rebecca became less friendly once the workers' compensation settlement had been disbursed. According to Rebecca, this was because Respondent made a very insensitive remark when she became upset after being questioned during a deposition. According to Respondent, it was because he began to believe that Rebecca was very interested in Keith's settlement, but not very interested in Keith's welfare. As a result, he told Rebecca that he wanted to contact Keith's parents as he did not think she should continue as his guardian. Rebecca was very hostile to that idea.
Sometime after her deposition, Rebecca remembered Respondent telling her that the judge (sic) had cut his fees and she needed to send him the rest of what she owed him "because [she] had signed a contract saying that [she] would pay him that much." Although the arbitrator had reduced Respondent's fees to $41,388 less than his contract with Keith provided, Rebecca testified that Respondent instructed her to send him the exact sum of $22,388.
On October 28, 2002, Rebecca obtained a cashier's check for $22,388, but when she telephoned Respondent to advise him that she was mailing it, he got "snippy" with her. On or about November 1, 2002, Rebecca sent a cashier's check for half that amount instead, along with a card saying the other half was negotiable. She wanted Respondent to apologize for his "snippy" behavior before she sent him the remaining $11,194. Thereafter, Respondent never again asked for the other half of the money, and Rebecca never sent it to him.
According to Respondent, Rebecca sent the check because when she learned that the arbitrator had reduced his fees, she offered to pay him the additional money. Respondent explained that this would be improper without the arbitrator's approval, but suggested that she send him some amount between $10,000 and 20,000 as an advance toward the expenses of the product liability case. Respondent estimated that he had ten to fifteen depositions scheduled at that point, and was hiring expert witnesses.
Kathy Barry worked for Respondent as both a secretary and a bookkeeper. She was not trained as a bookkeeper, but it had become part of her job. On December 3, 2002, Kathy deposited $7,194 from Rebecca's check into Respondent's office operating account and $4,000 into his client trust account. Kathy wrote "Advance on expenses (Skorup) 11,194 4000 Trust 7194 AJK" on the operating account deposit slip. The deposit slip for the trust account bore a similar notation. Neither Respondent nor his bookkeeper could recall the circumstances that led to the deposit to the operating account, but agreed that it would not have happened without Respondent's authorization. They further agreed that all of the money should have been deposited into the trust account.
Rebecca attempted to obtain a receipt for her cashier's check on several occasions, and became concerned when she was unable to do so. She asked a circuit court judge
who was married to a friend of hers what she should do, and he put her in touch with the ARDC. Rebecca did not wish to file a complaint. She just wanted to know "what [was] going on."
Rebecca considered Respondent and his office staff to be "like family and friends." She frequently telephoned the office just to chat, and sent them little gifts. Respondent's staff viewed Rebecca as a demanding client who called five or six times a day, and left long messages on the answering machine when the office was closed. Telephone records for the year ending October 31, 2002 showed 246 calls from Rebecca to Respondent's office and 154 calls from Respondent's office to Rebecca.
Kathy Barry remembered speaking to her at one point when she asked about the attorney's fees. Rebecca meant her $11,194 check, but Kathy explained that Respondent considered that check to be for expenses and it had been deposited as such. Rebecca insisted the money was attorney's fees. At least at the time of the hearing, she was unclear as to the difference between fees and costs. She described them as "different, but….the same."
Rebecca denied speaking to Kathy Barry, but remembered the conversation with Respondent that followed on May 14, 2003. She had what she described as "that mommy feeling" that something was wrong concerning the money and she wanted him to fix it, "to clean it up, make it look right instead of whatever it was he thought he was doing." Rebecca could not explain what the problem was, as she "was not sure [she] ever really knew." Nor did Respondent, according to his testimony.
Respondent offered to do whatever she wanted, including to return all of the money. Rebecca did not know what she wanted. The following day Respondent wrote Rebecca acknowledging that there had been a misunderstanding between them. His understanding was that the $11,194 was an advance on expenses, but it was clear from their conversation that she
believed otherwise. Respondent returned $6,194 to Rebecca and kept $5,000 for expenses in the product liability case. He remembered returning only $6,194 because that was the amount that Rebecca ultimately asked for.
Approximately a month later, Respondent received a letter from Rebecca informing him that his services were no longer needed and instructing him to turn over all of the materials concerning the Skorups' cases to another attorney. A settlement eventually was reached in the products liability lawsuit, but Respondent received no compensation for his efforts concerning the case. On February 14, 2005, Rebecca filed a malpractice action against Respondent regarding his representation in the workers' compensation action. Her new attorney also filed a complaint with the ARDC on her behalf.
Respondent first objects to the finding by the majority of the Hearing Board that the misconduct charged in Count II of the complaint was proved by clear and convincing evidence. He takes the position of the dissenting panel member that Rebecca was a totally incredible witness whose testimony cannot be relied upon, while claiming that his own testimony was sufficient to disprove the charges.
In a disciplinary proceeding, the Administrator has the burden of proving the misconduct charged by clear and convincing evidence. In re Imming, 131 Ill.2d 239, 250, 545 N.E.2d 715, 137 Ill. Dec. 62 (1989). Factual findings of the Hearing Board must be affirmed unless they are against the manifest weight of the evidence, which occurs when an opposite conclusion is apparent or the fact found appears unreasonable, arbitrary, or not based on the evidence. In re Witt, 145 Ill.2d 380, 390, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991); Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 212 Ill. Dec. 968 (1995). This standard does not allow us to substitute our judgment for that of the Hearing Board simply because
another conclusion could have been reached, even if we would have reached a different conclusion had we determined the facts in the first instance. In re Tuchow, 90 CH 305 (Review Board, October 12, 1994), approved and confirmed, No. M.R. 6757 (January 25, 1995).
While we give deference to all of the Hearing Board's factual determinations, we do so particularly to those concerning the credibility of the witnesses. The Hearing Board was able, which we were not, to observe the testimony of both Respondent and Rebecca Skorup. It was in a superior position to assess the demeanor of both witnesses, to judge their credibility, and evaluate the conflicts in their testimony. In re Spak, 188 Ill.2d 53, 66, 719 N.E.2d 747, 241 Ill. Dec. 618 (1999); In re Wigoda, 77 Ill.2d 154, 158, 395 N.E.2d 571, 32 Ill. Dec. 341 (1979).
We have carefully reviewed the Hearing Board's Report and Recommendation in this case. The majority of the panel did not find Rebecca to be the incredible witness that Respondent suggests. Regarding Count I, it found only that her testimony was too vague and uncertain to constitute clear and convincing proof of the charges. The majority found her testimony concerning Count II to be credible and believable. While Rebecca was unsure of the difference between fees and costs, she stated unequivocally that Respondent had used the term "attorney's fees" in requesting the additional $22,398. She also testified that she intended her $11,194 check to be half of that request. Additionally, she was very definite in denying that paying the additional funds had been her idea. She had "four kids and Keith [who] would take every nickel." That very definite testimony is reflected in the transcript, and the Hearing Board majority cited it in its report.
By contrast, the panel majority found that Respondent's memory lapse, limited to the circumstances surrounding the deposit of $7,194 from Rebecca's check into his office operating account, lacked credibility. The correct procedure for handling client funds is
elementary to the practice of law, and Respondent was a lawyer with many years experience. His departure from that procedure requires an explanation before Rebecca's testimony can be discounted. Despite the vagueness and uncertainty of her testimony regarding Count I, Rebecca's testimony concerning the misconduct charged in Count II could reasonably have been accepted by the Hearing Board as clear and convincing proof of the charges.
After reviewing the evidence, we conclude that the majority's findings were not against the manifest weight of the evidence. See In re Winthrop, 219 Ill.2d 526, 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). We affirm the Hearing Board's finding that Respondent committed all of the misconduct charged in Count II.
The final issue is the appropriate sanction. The majority of the Hearing Board has recommended that Respondent be suspended from the practice of law for a period of ninety days, but its recommendation is advisory only. In re Imming, supra, 131 Ill.2d at 260, 545 N.E.2d 715, 137 Ill. Dec. 62. The Administrator urges us to affirm the Hearing Board's recommendation, while Respondent argues that he deserves no more than censure.
In making our recommendation, we consider the 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). Aggravating and mitigating factors are relevant. In re Witt, supra, 145 Ill.2d at 398, 583 N.E.2d 526, 164 Ill. Dec. 610.
The circumstances of Respondent's misconduct are unique. We have examined the cases cited by the Hearing Board, and consider two in particular to provide guidance as to the appropriate sanction. In re Kutner, 78 Ill.2d 157, 399 N.E.2d 963, 35 Ill. Dec. 674 (1979),
indicates that charging an excessive fee without any additional misconduct warrants censure. However, we conclude that because of the additional misconduct in this case, censure is not appropriate here. Neither of the cases cited by the Respondent, In re Benjamin, 00 RC 1519, M.R. 16998 (November 21, 2000) and In re Hack, 95 CH 707, M.R. 11780 (January 23, 1996), indicate otherwise, as neither case involves a finding that the respondent engaged in dishonest conduct. Respondent's dishonesty is significant because it involved collecting a fee that he knew had been specifically disapproved by the arbitrator in an unappealed, binding, quasi-judicial determination. We determine that a period of suspension is required.
In re Potthoff, 94 SH 632 (Review Board, December 29, 1995), approved and confirmed, No. M.R. 12333 (May 28, 1996), is the only case relied on by the Hearing Board that involved a violation of Rule 8.4(a)(4). Potthoff was attorney and executor of an estate, and unreasonably delayed distribution of its assets, ignored the beneficiaries' requests for information, ignored court orders to file an accounting and made misrepresentations to the ARDC regarding his actions. He paid himself more than three times what he eventually agreed were reasonable attorney's fees, without authorization, and when he finally filed an accounting, underrepresented that amount.
In addition to engaging in dishonesty, Potthoff was found to have breached his fiduciary duty to an estate and its beneficiaries, charged an excessive fee, failed to act with reasonable diligence and promptness in representing a client and to have engaged in conduct prejudicial to the administration of justice. He was suspended for six months and until he made restitution.
We recognize, as did the majority of the Hearing Board, that Respondent's conduct was significantly less egregious than Potthoff's. Additionally, there is considerable
mitigation in this case. Respondent has practiced law for almost forty years with no prior discipline. A long record of untainted practice is a well-recognized mitigating factor. In re Stone, 109 Ill.2d 253, 265, 486 N.E.2d 915, 93 Ill. Dec. 382 (1985). Four witnesses, including the State's Attorney of Marshall County, testified to Respondent's reputation for honesty, and to the high regard in which he is held by the legal community. The evidence presented in mitigation indicates that Respondent's misconduct was an aberration in his otherwise respectable career, which is an additional mitigating factor. See In re McAuliffe, 116 Ill.2d 254, 263, 506 N.E.2d 1300, 107 Ill. Dec. 245 (1987); In re Olton, 05 SH 27 (Review Board, February 14, 2007), approved and confirmed, No. M.R. 21597 (May 18, 2007). We conclude that it is not likely to recur.
Respondent has provided pro bono representation and has donated his time to community organizations. He has been cooperative in these proceedings, and acknowledged that errors were committed concerning his representation of the Skorups. He owes no money to the Skorups.
On the other hand, we consider in aggravation the fact that the excessive fee Respondent attempted to obtain was not merely the result of poor judgment. As noted, the arbitrator in the workers' compensation case had made a binding determination of the proper fee, which Respondent was aware of at the time that he informed Rebecca that more money was required.
Noting again our confidence that Respondent's misconduct is not likely to be repeated, we conclude that a sixty-day period of suspension will sufficiently impress upon others the significant repercussions that will result from this type of misconduct, and will serve the underlying purposes of our disciplinary process, namely to safeguard the public, maintain the
integrity of the legal profession and protect the administration of justice from reproach. In re Discipio, 163 Ill.2d 515, 528, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994). We recommend that Respondent-Appellant Andrew J. Kleczek be suspended from the practice of law for a period of sixty days.
Date Entered: June 1, 2007
Stuart R. Lefstein
1The arbitrator reduced Respondent's fees pursuant to §16 of the Workers' Compensation Act, which limits an award of attorney's fees in the case of permanent disability to twenty percent of seven years worth of benefits. Respondent provided counsel for the Administrator with a law journal article suggesting that when the amount of the award is disputed, as Keith's was, the attorney's fees can be twenty percent of the disputed amount.
2At the time that Keith received the workers' compensation settlement, he resided in a nursing home. Rebecca's "basic plan" was that she would use the settlement proceeds to move to a better place for the children to live first, and the products liability settlement would take care of Keith later. Rebecca used the majority of the workers' compensation settlement money to buy the house and to pay credit card bills.