Filed March 17, 2009

In re Daniel Michalczyk Starr
Respondent-Appellee

Commission No. 06 CH 78

Synopsis of Review Board Report and Recommendation
(March 2009)

The Administrator charged Starr with engaging in conflicts of interest and other misconduct while representing clients in two eviction matters. Starr admitted some of the factual allegations, denied others, and denied all allegations of misconduct.

With respect to Count I of the Administrator's complaint, the Hearing Board found that the Administrator proved that Starr failed to consult with one of his clients and represented two clients in a single matter without explaining the implications of the common representation. The Hearing Board found insufficient proof of a conflict of interest and of conduct that prejudices the administration of justice or that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Hearing Board directed a finding in Starr's favor on Count II of the complaint and recommended that Starr receive a censure.

The Administrator challenged the Hearing Board's findings as to Count I that he failed to prove that Starr engaged in a conflict of interest and in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Administrator urged the Review Board to recommend a 30-day suspension.

The Review Board affirmed the Hearing Board's finding of no conflict of interest and reversed its finding of no violation of Supreme Court Rule 770. Although Starr had previously been disciplined, the Review Board concluded that a censure sufficiently addressed the misconduct at issue in this proceeding.

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

In the Matter of:

DANIEL MICHALCZYK STARR,

Respondent-Appellee,

No. 3122534.

Commission No. 06 CH 78

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

The Administrator filed a two-count complaint against Respondent, Daniel Michalczyk Starr, alleging that he engaged in a conflict of interest and committed other misconduct while representing clients in two eviction matters. Specifically, Count I alleged that, with respect to clients Rufus Sparks and Timika Sims, Respondent represented a client when the representation of that client would be directly adverse to another client, in violation of Illinois Rule of Professional Conduct 1.7(a)1; failed to consult with a client about the means by which the objectives of the representation were to be pursued, in violation of Rule 1.2(a); represented multiple clients in a single matter without explaining the implications of the common representation and the advantages and risks involved, in violation of Rule 1.7(c); and engaged in conduct that is prejudicial to the administration of justice and that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770.

Count II alleged that, with respect to Rufus Sparks and Chantay Drones, Respondent failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation, in violation of Rule 1.4(b); represented a client when his representation may be materially limited by his responsibilities to another client

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or to a third person, or by his own interests, in violation of Rule 1.7(b); and engaged in conduct that is prejudicial to the administration of justice and that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Rule 8.4(a)(5) and Supreme Court Rule 770. Respondent admitted some of the factual allegations, denied others, and denied all allegations of misconduct.

At the close of the Administrator's case, the Hearing Board directed a finding in Respondent's favor on all of the charges in Count II. As to Count I, the Hearing Board found that the Administrator proved that Respondent failed to consult with one of his clients, Sims, and represented Sparks and Sims in a single matter without explaining the implications of the common representation. The Hearing Board found insufficient proof of a conflict of interest and of conduct that prejudices the administration of justice or that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Hearing Board recommended that Respondent receive a censure.

The Administrator filed exceptions to the Hearing Board's Report and Recommendation and argues before this Board that he successfully proved a conflict of interest and a violation of Supreme Court Rule 770 as to Count I. The Administrator does not challenge the directed finding on Count II. In addition, the Administrator argues that Respondent's license should be suspended for 30 days.

Respondent received his license to practice law in 1978. He practices primarily in the area of landlord/tenant law.

In April 2004, Respondent agreed to represent Rufus Sparks and Timika Sims in an action filed against them by Mortgage Electronic Registration Systems (MERS), seeking possession of property located at 550 Saginaw Avenue in Calumet City. Respondent testified that Sparks told him in a telephone conversation that Sims was his girlfriend and they lived

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together at the Saginaw Avenue property. Sparks paid Respondent's fee. The only contact number Respondent had for Sparks and Sims was Sparks' cell phone number.

On April 26, 2004, Respondent filed an appearance and jury demand on behalf of Sparks and Sims and appeared in court on the matter. Respondent next appeared on behalf of Sparks and Sims on May 3, 2004, at which time the court set a briefing schedule on MERS's summary judgment motion and set a court date for June 3, 2004.

Shortly after May 3, 2004, Respondent had a telephone conversation with Michael Fisher, the attorney for MERS, in which Fisher said that Sparks was a "bad guy." On May 7, 2004, Fisher faxed to Respondent a copy of an order entered in a federal district court barring Sparks from holding himself out as the landlord of a property in South Holland and collecting rent for that property.

On June 3, 2004, before their case was called, Respondent asked Fisher to allow Sims 28 days to vacate the property. Respondent had not discussed this offer with Sims. Fisher refused Respondent's request.

Also on June 3, 2004, Respondent looked at the court file and saw that the return of service affidavits indicated that the occupant of the Saginaw Avenue property stated that Sparks was the landlord and did not live at that address. Respondent testified that this was contrary to what Sparks had told him. However, it provided a defense for Sparks to the demand for possession because he was not served and did not reside at the Saginaw Avenue property.

Attorney Mark Tillman appeared in court on June 3, 2004, and advised Respondent that he represented Sims. Respondent testified that he was surprised by this because he thought Sparks had retained him to represent both Sparks and Sims. Respondent advised Tillman that he had a defense for Sparks and Sims based on the fact that Sparks did not reside at

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the Saginaw Avenue property. Respondent called Sparks on June 3, 2004 and told Sparks that he wanted to speak to Sims. Sims did not call Respondent.

On June 4, 2004, Respondent filed a response to MERS's summary judgment motion on behalf of Sparks and Sims.

At the next court date of June 7, 2004, Respondent appeared, as did Sims and Tillman. Sims told Respondent that she wanted Tillman to represent her. Respondent argued to the court that Sparks should be dismissed from the case and also made arguments on Sims' behalf until the court instructed him to stop doing so. The court dismissed Sparks from the case and entered summary judgment against Sims but stayed the order of possession for 45 days. Respondent's involvement in the case ended at that time because Sparks was dismissed. Tillman continued to represent Sims.

In mitigation, Respondent testified that he is a member of the board of directors of three organizations that provide shelter and counseling for homeless persons. He makes charitable contributions to Loyola Law School, Loyola University, and the University of South Florida. For the past ten years he has bought Thanksgiving dinners for the residents of a mobile home park where his father used to reside. Respondent also presented character testimony from two judges and three attorneys. Two of the character witnesses testified that Respondent has a good reputation for honesty. Two testified that they had not heard anything negative about Respondent's reputation, and one testified that Respondent had been honest in the cases they had together but he was unaware of Respondent's reputation in the legal community.

The Administrator bears the burden of proving the charges of misconduct by clear and convincing evidence. In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560 (2004). Neither party challenges the Hearing Board's findings of fact. Rather, the Administrator contends that

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the facts as found by the Hearing Board establish a conflict of interest and a violation of Supreme Court Rule 770.

The Administrator further contends that we should examine the Hearing Board's misconduct findings under the clearly erroneous standard of review, despite the fact that the supreme court has never applied the clearly erroneous standard in a disciplinary proceeding. This Board does not possess the authority to adopt a new standard of review. Consequently, our review of the Hearing Board's legal conclusions, including whether the facts found constitute the charged misconduct, is de novo. See In re Discipio, 163 Ill. 2d 515, 527, 645 N.E.2d 906 (1994).

The Administrator argues that the facts as found by the Hearing Board established that Respondent engaged in a conflict of interest by representing both Sparks and Sims. The Hearing Board found no conflict of interest because there was insufficient evidence that Sparks' and Sims' interests were directly adverse.

Rule 1.7(a) prohibits a lawyer from representing a client if the representation of that client will be directly adverse to the interests of another client, unless the lawyer reasonably believes that the representation of the clients will not be adversely affected and both clients consent after full disclosure. The supreme court has held that "[a] conflict of interest arises whenever an attorney's independent judgment on behalf of a client may be affected by a loyalty to another party." In re LaPinska, 72 Ill.2d 461, 469, 381 N.E.2d 700 (1978). For this reason, "[a] congruence of purpose in the representation of multiple parties may not avert conflicts of interest." LaPinska, 72 Ill.2d at 469. Consequently, we must look at the potential for diverging interests. LaPinska, 72 Ill. 2d at 469.

The Hearing Board found that Sparks and Sims were both defendants to the action for possession and had a common interest in retaining possession of the Saginaw Avenue property. The Administrator, on the other hand, argues that Respondent should have suspected

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that Sparks was defrauding Sims and, therefore, should have realized that their interests were directly adverse. Assuming, arguendo, that it is appropriate to look beyond the four corners of the lawsuit to ascertain whether Sparks' and Sims' interests were adverse, the evidence upon which the Administrator relies is too speculative to establish a conflict of interest by clear and convincing evidence.

The Administrator relies on Respondent's communications with opposing counsel Fisher as well as information Respondent obtained from the court file as support for his contention that Respondent should have suspected that Sparks was defrauding Sims by holding himself out as the landlord of the Saginaw Avenue property. We conclude that this evidence is too tenuous to establish a violation of Rule 1.7(a).

The evidence showed that Fisher told Respondent in May 2004 that Sparks was "a bad guy" and sent Respondent a copy of an order from the federal district court directing Sparks to stop holding himself out as the landlord and collecting rents for a property in South Holland. Respondent testified that he considered Fisher's comments about Sparks to be posturing that often occurs in his cases. Fisher admitted that he had no personal knowledge regarding where Sparks lived or whether he was holding himself out as the owner of the Saginaw Avenue property. Rather, Fisher suspected that Sparks might be doing so. Given Fisher's lack of knowledge regarding Sparks' living arrangements, his comment to Respondent and the order pertaining to a different property was not sufficient to establish as a matter of law that Sparks was defrauding Sims or that Respondent had knowledge of any fraud against Sims that would give rise to a conflict of interest.

The Administrator also asserts that, on Thursday, June 3, 2004, when Respondent first saw the return of service affidavits stating that Sparks did not live at the Saginaw Avenue property and was Sims' landlord, a reasonable lawyer would have to suspect that Sparks was

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defrauding Sims. This argument ignores the fact that Sims had already retained another attorney at the time Respondent looked at the affidavits, and she officially terminated Respondent's representation of her two business days later, on Monday, June 7, 2004. Respondent tried unsuccessfully to contact Sims after he learned that Sparks did not reside at the Saginaw Avenue property. While perhaps he could have tried again to contact her before she discharged him, his failure to do so does not rise to the level of a violation of Rule 1.7(a). We fail to see what Respondent could have done differently, given that his discharge was contemporaneous with his discovery that Sparks may have misled him. Accordingly, we conclude that the facts as found by the Hearing Board do not rise to the level of a Rule 1.7(a) violation, and we affirm the Hearing Board's finding in that regard.

We do, however, reverse the finding that the Administrator did not prove a violation of Supreme Court Rule 770. Rule 770 provides that conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute shall be grounds for discipline. The Hearing Board noted that there was no evidence that Respondent's misconduct affected Sims' opinion of attorneys. However, a finding that an attorney violated Rule 770 "does not result solely from the impact upon the victim of the misconduct." In re Rossiello, No. 03 CH 33 (Review Board, Aug. 13, 2007), petition for leave to file exceptions denied, No. M.R. 21894 (Jan. 23, 2008). It is undisputed that Respondent failed to communicate with Sims and made proposals on her behalf to opposing counsel without ever discussing the matter with her. Such conduct reflects poorly on the legal profession. For this reason, we conclude that the Administrator established by clear and convincing evidence that Respondent's conduct violated Rule 770.

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Turning to the recommended sanction, the Administrator argues that Respondent's misconduct warrants a 30-day suspension. Respondent contends that a censure, as recommended by the Hearing Board, is appropriate.

The Hearing Board's sanction recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981). When making our sanction recommendation, we consider the particular circumstances of each case, including any factors in aggravation and mitigation, as well as discipline imposed in cases involving similar misconduct. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). We bear in mind that the purpose of the disciplinary process is not to punish attorneys but to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice. In re LaPinska, 72 Ill.2d 461, 473, 381 N.E.2d 700 (1978).

We begin by noting that the Administrator's argument for a 30-day presumes that Respondent engaged in a conflict of interest. We have rejected that contention, so the issue before us is the appropriate discipline for Respondent's failure to communicate with Sims and to explain to her the implications of representing both her and Sparks in the action for possession.2 This misconduct was limited, did not cause harm to Respondent's clients, and was not the result of a dishonest motive.

As the Hearing Board noted, similar misconduct has frequently resulted in the imposition of a censure. See In re Ruder, No. 04 CH 106, petition to impose discipline on consent allowed, No. M.R. 20527 (Jan. 13, 2006); In re Brewer, No. 04 CH 55 (Hearing Board, Oct. 6, 2005), approved and confirmed, No. M.R. 20543 (Jan. 13, 2006); In re Feder, No. 04 CH 93, petition to impose discipline on consent allowed, No. M.R. 20139 (May 20, 2005). The issue before us is whether a greater sanction is warranted because of Respondent's prior discipline.

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On May 20, 2005, the supreme court suspended Respondent for six months for helping a former client perpetrate a fraudulent scheme to evade eviction. In re Starr, No. 00 CH 70, No. M.R. 20008 (May 20, 2005). Respondent's former client, Teresa Calcagno, asked Respondent to represent to the court that another individual, James Jakubosky, also lived at the subject property and had not been named as a defendant to the action for possession. Without ever meeting Jakubosky, Respondent filed motions to dismiss on Jakubosky's behalf and represented him during a jury trial in the matter. In fact, Jakubosky never lived at the property and never authorized Respondent to represent him. Respondent admitted that he knew Calcagno was trying to perpetrate a scam on the owner of the property. He was found to have taken actions on behalf of a client for the purpose of harassing or maliciously injuring another, making false statements to the court, and engaging in dishonest conduct.

This misconduct at issue here occurred before the supreme court suspended Respondent but after the Hearing and Review Boards had determined that he engaged in misconduct in his prior disciplinary proceeding. See Starr, No. 00 CH 70 (Hearing Board July 14, 2003) and (Review Board, December 28, 2004). Prior discipline weighs most heavily against a respondent when he or she commits additional misconduct after the supreme court has imposed discipline, thereby indicating a failure to learn from the previous misconduct. However, it is appropriate to consider the totality of a respondent's discipline even when he or she is not a typical recidivist. See In re Teichner, 104 Ill.2d 150, 470 N.E.2d 972 (1984). When the misconduct that gave rise to the second disciplinary proceeding predated the imposition of discipline, the Hearing Board or Review Board has afforded some weight to the prior discipline, but not a significant amount. In re Cohen, No. 06 CH 10 (Hearing Board, Oct. 25, 2006), approved and confirmed, No. M.R. 21332 (Jan. 12, 2007). The Hearing Board appropriately

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took this approach when considering Respondent's prior discipline. Starr, No. 06 CH 78, Hearing Board Report and Recommendation at 20.

We concur with the Hearing Board's conclusion that Respondent's prior misconduct was more egregious than the misconduct at issue here. Here, the misconduct was very limited in nature, and there were no findings that Respondent acted dishonestly, made false statements, or engaged in conduct for the purpose of harassment. Consequently, we place some weight, but not a significant amount, on Respondent's prior misconduct as a factor in aggravation.

Respondent's failure to acknowledge his prior misconduct is another aggravating factor, as is his lack of remorse for the misconduct at issue in this proceeding. Due to the limited nature of Respondent's misconduct at issue here, the Hearing Board placed little weight on his lack of remorse. However, it found that his lack of understanding of his prior misconduct was "nothing short of appalling." Starr, No. 06 CH 78, Hearing Board Report and Recommendation at 22. We agree with the Hearing Board that Respondent's lack of remorse in the instant case is not a significant factor in aggravation. Respondent's failure to acknowledge his prior misconduct concerns us but, in light of all of the relevant circumstances, does not justify increasing the sanction. We trust that Respondent will learn from his disciplinary proceedings and conform to the Rules of Professional Conduct in the future. Failure to do so will likely result in a much more severe sanction

Respondent presented significant evidence in mitigation, including favorable character testimony from judges and attorneys. In addition, his involvement in pro bono and charitable activities is impressive. He serves on the board of directors of organizations dedicated to helping the homeless and protecting renters' rights. He makes charitable donations to Loyola Law School, Loyola University, the University of South Florida, and some renters' rights

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organizations. This evidence of good character and community involvement weighs in Respondent's favor.

Considering all of the relevant circumstances, including the limited nature of the misconduct at issue in this proceeding, the lack of any dishonest motive, and all of the other factors in aggravation and mitigation, we recommend that Respondent receive a censure. In so doing we are guided by Feder, No. 04 CH 93, No. M.R. 20139. Feder received a censure for failing to appear at a client's civil trial, which resulted in judgment being entered against his client. Feder had previously received a one-year suspension for lying to a client, lying to the Commission, and settling a case without his client's authorization. As with Feder, due to the different and less serious nature of the later misconduct, it is not appropriate in this case to increase the sanction based on Respondent's prior discipline. A censure appropriately addresses Respondent's misconduct.

CONCLUSION

For the foregoing reasons, we affirm the Hearing Board's findings of fact, reverse the Hearing Board's finding as to Count I that Respondent did not violate Supreme Court Rule 770, and affirm the remaining findings of misconduct. We recommend that Respondent receive a censure.

Date Entered: 17 March 2009

Respectfully Submitted,

Daniel P. Duffy
Terence V. O'Leary
John W. Rapp, Jr.

________________________
1 Unless otherwise specified, all references to Rules are to the Illinois Rules of Professional Conduct.

2 The Administrator acknowledges that a finding that Respondent violated Rule 770 should not impact the sanction.