Filed February 25, 2009

In re Mark Maciasz
Commission No. 06 CH 80

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) breach of the fiduciary duties of good faith and honesty; 2) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 3) engaging in conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: Rules 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 771.

RECOMMENDATION: Four month suspension.

DATE OF OPINION: February 25, 2009.

HEARING PANEL: Henry T. Kelly, Chair, Harvey N. Levin and Cheryl M. Kneubuehl.

ADMINISTRATOR'S COUNSEL: Dorothy B. Zimbrakos.

RESPONDENT'S COUNSEL: George B. Collins and Theresa M. Gronkiewicz.

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

In the Matter of:

MARK MACIASZ,

Attorney-Respondent,

No. 6211198.

Commission No. 06 CH 80

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on February 20, 21 and March 7, 2008 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC"), Chicago, Illinois before a Hearing Board Panel consisting of Henry T. Kelly, Chair, Harvey N. Levin and Cheryl M. Kneubuehl. Dorothy B. Zimbrakos appeared as counsel for the Administrator. George B. Collins and Theresa M. Gronkiewicz appeared as Counsel for Respondent and Respondent was present.

PLEADINGS

On November 21, 2006, the Administrator filed a three count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged Respondent breached his fiduciary duty to two law firms and engaged in dishonesty and fraud. Respondent filed an Answer to the Complaint on January 30, 2007, in which he admitted some of the factual allegations, denied some of the factual allegations and denied all the allegations of misconduct.

THE EVIDENCE

The Administrator presented the testimony of Robert Schnitz, David Fargo, Thomas Kinasz, Andrew Gelman, John Buttita, Kenneth Gaines, MaryTerese Maciasz-Ornoff and

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Respondent and Exhibits 2-21, 23, 24 at 13-21, 26-33 and 36. Respondent presented his testimony, the testimony of Sean Gallagher, James Riordan, Douglas Johnson, John Newlin, John Strye, Debra Doyle and Exhibits 1-3. The testimony of the witnesses, the Exhibits, and the admitted allegations of the Complaint established the following facts.

Background

Respondent was employed as an associate in the spring of 1998 at Altheimer & Gray and then as a non-equity partner for approximately five months until the firm dissolved on June 30, 2003. Respondent concentrated his practice at Altheimer & Gray in estate planning. Respondent provided accounting and legal services to clients while he was employed at Altheimer & Gray as an individual and not as a lawyer of the firm, which the Administrator referred to throughout the ARDC hearing as his "moonlighting business." Respondent received income for those services.

In July 2003 Respondent submitted an application to the law firm of Holland & Knight LLP and Holland & Knight LLC ("Holland & Knight"). Respondent did not disclose the existence of his moonlighting business or the clients from his moonlighting business on the application. (Adm. Ex. 11). Respondent also prepared and attached altered versions of his federal income tax returns for 2000, 2001 and 2002 to the application, which displayed only the income he had received from Altheimer & Gray and omitted the income he had received from his moonlighting business. (Adm. Ex. 12, 15, 16, 17).

Respondent was employed as a senior counsel in the Private Wealth Services group of Holland & Knight from August 1, 2003 to May 13, 2005. Respondent entered into an employment contract with Holland & Knight entitled "Senior Counsel Agreement" which provided that Respondent was to devote his full time and attention to the practice of law, not undertake or continue any representation except in accordance with Holland & Knight practices

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and procedures and that all client income with respect to Respondent's service as an employee of Holland & Knight was the property of the firm. (Adm. Ex. 2 at 3-4). The agreement also acknowledged Respondent's receipt of a copy of Chapter 6 of Holland & Knight's office manual which stated that employment could not be accepted until a conflicts check was conducted for the client and the opposing party and that all compensation for all services performed by a firm lawyer were the property of the firm. (Adm. Exs. 2 at 3, 3 at 1, 5).

Respondent continued to conduct his moonlighting business while he was employed at Holland & Knight; Respondent provided accounting and legal services to clients individually, not as clients of the firm. Respondent received income for those services directly from the clients. Respondent also co-owned and co-managed residential apartment buildings with Sean Gallagher under the Caulfield Realty Group LLC ("Caulfield LLC") and formed Caulfield Realty and Management Company ("Caulfield Co.") with Mr. Gallagher while he was employed at Holland & Knight. Respondent performed all of the accounting and tax work for the companies and did not disclose his interest in Caulfield LLC or Caulfield Co. to Holland & Knight.

In early May 2005, Respondent gave notice to Holland & Knight of his intent to terminate his employment with the firm on May 13, 2005. Respondent was informed of the approval procedure necessary to obtain a copy of his computer documents. On May 13, 2005, Respondent caused over 400 documents to be exported from Respondent's computer at Holland & Knight to his personal computer at his residence. Respondent did not seek approval or otherwise comply with Holland & Knight's procedures for removing electronic copies of the documents.

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David L. Fargo

David L. Fargo was licensed to practice law in Illinois in 1954 and was a partner at Hinshaw & Culbertson for 31 years and a partner Altheimer & Gray for 18 years until the firm dissolved. (Tr. 159). Mr. Fargo then joined the Private Wealth Services group at Holland & Knight in May 2003. (160).

Mr. Fargo met Respondent when he joined Altheimer & Gray in 1998 and worked in the estate and tax planning department with him. (Tr. 161). Respondent's quality of work at Altheimer & Gray was very high and Respondent became a partner at the end of 2002. (Tr. 161-2). Mr. Fargo rated Respondent highly when he reviewed him at Altheimer & Gray. (Tr. 199).

Mr. Fargo testified that there was no written policy at Altheimer & Gray regarding outside work, but that the practice and policy at the firm was that an attorney could not practice law or conduct a business for his or her own personal benefit without disclosing it to the firm and receiving the firm's approval. (Tr. 163, 202). Mr. Fargo complied with the policy and received authorization when he performed work outside the firm and turned over any payment he received to the firm's accounting department. (Tr. 202-3). Respondent did not disclose to anyone at Altheimer & Gray that he was conducting his own moonlighting business on the side. (Tr. 165). Mr. Fargo never informed Respondent that there was a policy regarding outside work, but the associates at Altheimer & Gray were expected to know the firm's policies. (Tr. 202-3).

When Altheimer & Gray dissolved in 2003, Mr. Fargo and David Gilles, another partner at Altheimer & Gray, encouraged Respondent to come with them to Holland & Knight because Respondent was "such a good lawyer" that they wanted to give Respondent their practice when they retired. (Tr. 167-8). Respondent's office at Holland & Knight was between Mr. Fargo's and Mr. Gilles' offices and Mr. Fargo observed Respondent was "very, very busy" and was very impressed with how much work Respondent was doing and how well he could "multi-task" by

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talking on the phone and typing at the same time. (Tr. 171-2). Respondent was not always in the office when Mr. Fargo was there because Respondent did a lot of work for a client that took him outside of the office. (Tr. 200). Mr. Fargo saw some documents related to Caulfield on the printer he and Respondent used. (Tr. 171).

Mr. Fargo testified that he did not always receive Respondent's assistance on matters at Holland & Knight when he requested it because Respondent told Mr. Fargo that he had been assigned too much work by other partners at the firm, including work regarding the Estate of Dresser matter. (Tr. 178-9). Respondent never complained that he did not have enough work to maintain an adequate amount of billable hours and he never asked Mr. Fargo for more work. (Tr. 178-9). Respondent did not promptly complete the work Mr. Fargo gave him to do on a prenuptial agreement, which Mr. Fargo completed after Respondent left Holland & Knight. (Tr. 179-80). Respondent also did not promptly complete a complicated family limited partnership, but Mr. Fargo did not know the status of the matter, because he no longer represented the client. (Tr. 180-81, 191-2). Mr. Fargo testified that he could have given Respondent more work if Respondent had been willing to do it. (Tr. 181).

Mr. Fargo testified that Respondent was on a "partnership track" the first year he reviewed him at Holland & Knight. (Tr. 172). Mr. Fargo stated on Respondent's evaluation that Respondent met deadlines, recognized priorities and completed his assignments in a timely manner. (Tr. 195; Resp. Ex. 1). Mr. Fargo also stated that Respondent was "always ready to help on an assignment" and that Respondent was involved in civic and community activities that would "yield prominence" and provide an advantage in Holland & Knight's marketing efforts. (Tr. 196-7; Resp. Ex. 1).

Respondent informed Mr. Fargo that he did not want to be a partner at Holland & Knight, which Mr. Fargo thought was reasonable because of the disappointment Respondent experienced

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when Altheimer & Gray dissolved almost immediately after Respondent had worked very hard to become a partner. (Tr. 173). When Mr. Fargo learned Respondent was leaving Holland & Knight he gave him his "blessings." (Tr. 182).

Respondent did not disclose to Mr. Fargo that he was conducting a moonlighting business and receiving payment from those clients while he was at Holland & Knight. (Tr. 168). Respondent also did not disclose his involvement in Caulfield to him. (Tr. 169). Mr. Fargo discovered Respondent had been conducting a moonlighting business while he was at Altheimer & Gray and Holland & Knight when Respondent exported the documents from his computer at Holland & Knight to his home computer. (Tr. 169). Mr. Fargo felt betrayed when he discovered Respondent's moonlighting and real estate business activity because he believed Respondent acted unethically and dishonestly. (Tr. 169). Mr. Fargo was also aware that Respondent had not received permission to export the documents to his home computer. (Tr. 170).

Mr. Fargo did not review the documents that were exported to Respondent's home computer, but testified that most of the documents Respondent exported were forms that were developed by Respondent and Mr. Fargo's practice group at Altheimer & Gray and were the group's work product. (Tr. 173-5, 192). Mr. Fargo also testified that some of the documents were client documents that contained privileged information and that it appeared the family limited partnership was one of the documents Respondent exported. (Tr. 175, 191, 207).

John J. Buttita

John J. Buttita was licensed to practice law in 1979. (Tr. 462). He joined Altheimer & Gray in 1984 and became a partner at the firm in 1986. (Tr. 463). Mr. Buttita was the head of the estate planning group at Altheimer & Gray and worked with Respondent from 1998 when Respondent was hired as an associate until 2003 when the firm was dissolved. (Tr. 464-5). Mr. Buttita testified that Respondent worked full time and completed all the work that was assigned

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to him and did it "very well." (Tr. 467). Mr. Buttita recommended Respondent for non equity partner. (Tr. 467). Mr. Buttita was not aware that Respondent had a moonlighting business in which he did legal work. (Tr. 466).

Mr. Buttita was familiar with the practices and policies of Altheimer & Gray and understood that the firm required its associates and non equity partners to devote their full time to the practice of law, but testified that there was no written policy that related to moonlighting at the firm. (Tr. 465, 467). Altheimer & Gray required its attorneys to conduct a conflicts check before agreeing to represent a prospective client and to establish a client billing number and open a client file for each new client. (Tr. 465). The firm also required attorneys to bill for all legal work and related services through the firm and to remit any fees and costs collected from clients to the firm. (Tr. 465-6).

Kenneth Gaines

Kenneth Gaines was licensed to practice law in Illinois in 1968 and retired in 2004. (Tr. 701). Mr. Gaines spent most of his career at Altheimer & Gray and served as the hiring partner and then the managing partner from 1991 to 2000. (Tr. 701).

Altheimer & Gray did not have a written policy about moonlighting. (Tr. 702). Mr. Gaines put together a law firm handbook in the mid 1990's but did not address moonlighting in the handbook because it was "fairly basic" that Altheimer & Gray paid its attorneys to work full time for the firm and expected its attorneys to devote their time as attorneys to the benefit of the firm absent very special circumstances. (Tr. 702-3). The handbook was distributed to all the attorneys at the firm at the time it was prepared, but it was not re-issued to new lawyers. (Tr. 705-707).

Mr. Gaines testified that when a law firm pays an attorney to perform legal services, all of the fees the attorney receives by providing legal services belong to the law firm. (Tr. 708).

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The only attorneys at Altheimer & Gray who represented clients outside of the firm were attorneys who joined the firm as senior attorneys and obtained special approval from the firm to represent those clients. (Tr. 704-5).

Altheimer & Gray did not practice accountancy. (Tr. 705). Mr. Gaines knew Respondent, but did not work with him and did not have any knowledge of the conversations that occurred in the estate planning department regarding Respondent's moonlighting. (Tr. 705). Mr. Gaines was never informed by a partner or associate at the firm that Respondent was moonlighting. (Tr. 708-9).

Andrew R. Gelman

Andrew R. Gelman is a partner and regional team leader of the Private Wealth Services group at Holland & Knight and was licensed to practice law in 1971. (Tr. 257-9). Mr. Gelman is responsible for the marketing activities, billing activities, evaluation and education of the attorneys in the Private Wealth Services group. (Tr. 261). Mr. Gelman has to approve all new clients and ensure that a conflicts check has been completed. (Tr. 261). Mr. Gelman also coordinates educational programs, cocktail receptions and seminars to develop relationships with other professionals and clients. (Tr. 262).

Mr. Gelman interviewed Respondent for a position at Holland & Knight because Mr. Fargo and Mr. Gillies highly recommended him. (Tr. 264). Respondent did not disclose his moonlighting business to Mr. Gelman during the interview and Mr. Gelman hired him. (Tr. 265). Mr. Gelman testified he would not have hired Respondent if he had known about his moonlighting business. (Tr. 265).

Mr. Gelman testified that no attorneys in the Private Wealth Services group prepare individual income tax returns and that Holland & Knight does not hold itself out as providing accounting services. (Tr. 301-2). Mr. Gelman further stated if a lawyer within the group had the

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expertise to prepare individual income tax returns the lawyer would not be prohibited from preparing the returns, but that type of work was not encouraged. (Tr. 325, 332). Mr. Gelman also testified that the Private Wealth Services group had a schedule of what fees were generally charged for different projects. (Tr. 320). Mr. Gelman estimated that the lowest fee on the schedule for a simple will and power of attorney was $1,400 and the highest fee for a family limited partnership was approximately $10,000 or $20,000. (Tr. 320-1).

Mr. Gelman testified that Respondent could have brought his moonlighting clients into Holland & Knight and that Respondent would have been expected to bill the clients his hourly rate at the firm for the preparation of their income tax returns. (Tr. 326-8). Mr. Gelman also testified that sometimes close friends and family members are given a discounted rate and that paralegals at the firm prepare tax returns under the supervision of some of the tax attorneys. (Tr. 328-30). Mr. Gelman testified the highest paralegal hourly rate is approximately $250 an hour. (Tr. 330).

Mr. Gelman contributed to Respondent's written evaluation at Holland & Knight and stated that Respondent was articulate, had an excellent command of complex estate planning and tax matters, kept current on recent developments and was a valuable resource to the Private Wealth Services group. (Tr. 268-9; 303; Resp. Ex. 1). Mr. Gelman testified that it was useful to the firm to have Respondent's practice knowledge in such a technical area of law because he could answer questions quickly and accurately. (Tr. 304). Mr. Gelman also testified that the time Respondent took to answer other attorney's questions and share his knowledge with them for their work was not necessarily billable time. (Tr. 304). Mr. Gelman further stated in Respondent's evaluation that he "exceeded expectations" in his research and analysis skills, communication skills and judgment and "met expectations" in his writing and client relation skills. (Tr. 310-11; Resp. Ex. 1).

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Mr. Gelman also described some of the work Respondent had performed in his evaluation. (Resp. Ex. 1). Respondent assisted Mr. Gelman in developing proposals for a meeting to obtain a potential client worth 40 million dollars and Mr. Gelman was impressed with the timely and thorough manner Respondent worked on that matter. (Tr. 305-6, 318, Resp. Ex. 1). Mr. Gelman obtained the client two years later. (Tr. 305). Respondent organized by flow chart the provisions of an intricate set of trusts for a client under Mr. Gelman's supervision and did that work in a timely manner. (Tr. 307; Resp. Ex. 1). Respondent also replaced a partner in the Private Wealth Services group on the Estate of Dresser matter, because the partner had lost the confidence of the client. (Tr. 308, Resp. Ex. 1). Mr. Gelman recalled Respondent did "a fine job under the circumstances" on the estate matter. (Tr. 310). The client was unhappy with the number of hours being billed by the partner and Mr. Gelman testified that it was possible Respondent was instructed not to bill every hour he spent on the matter. (Tr. 308-9).

Respondent's evaluation reflected that Respondent's total billable and non billable time in 2004 was 1,327.4 hours which included 1,089.6 billable hours for client matters, 18.0 billable hours for a pro bono matter with the Center for Disability and Elder Law, 149.8 non billable hours for bar association activities, community activities, marketing activities, firm activities and 70 non billable hours for vacation time. (Tr. 271-6; Resp. Ex. 1). Holland & Knight's policy was that its attorneys should bill a total of 2500 hours consisting of both billable and non billable time. (Tr. 273).

Mr. Gelman testified that Respondent's billable hours were low, but that was typical for the attorneys in the Private Wealth Services group whose average billable hours were approximately 1500. (Tr. 276). Mr. Gelman further testified that he encouraged Respondent to increase his non billable hours by engaging in marketing activities, community activities and pro bono activities to market himself and the firm to increase business, but that Respondent's non

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billable hours show he did not do that. (Tr. 276-7, 279). Mr. Gelman was aware Respondent ran for trustee of Oak Lawn, but did not know whether Respondent recorded the hours he spent on his duties for the campaign as non billable hours. (Tr. 319).

Mr. Gelman also encouraged Respondent to write an article for a bar association journal and become a member of the American College of Trust and Estate Counsel ("ACTEC"), because of Respondent's skills and the quality of his scholarship. (Tr. 279, 281; Resp. Ex. 1). Respondent spoke at one ACTEC symposium, but Mr. Gelman was not aware of any publications Respondent worked on in order to become a member of ACTEC. (Tr. 279).

Respondent told Mr. Gelman on several occasions that he was unable to help him on projects because he was too busy with work that was assigned to him by Mr. Fargo and Mr. Gillies. (Tr. 265). There were also many assignments Mr. Gelman gave Respondent that he did not complete in a timely manner. (Tr. 265-6). Mr. Gelman testified that to his knowledge the work he assigned Respondent regarding the Estate of Dresser matter did not prevent Respondent from doing work for Mr. Fargo and Mr. Gilles. (Tr. 267). Respondent appeared to be busy all the time and never asked Mr. Gelman for more work. (Tr. 278).

Respondent informed Mr. Gelman he was leaving Holland & Knight in May 2005. (Tr. 282). Mr. Gelman was disappointed Respondent was leaving the firm because he valued Respondent for his expertise and enjoyed working with him, but he was not angry. (Tr. 282). Mr. Gelman was assigned as the transition partner to ensure Respondent had client authorization to take files and did not breach client confidentiality. (Tr. 283). Mr. Gelman also told Respondent he had to talk to the Information Technology Department ("IT Department") about Holland & Knight's procedure for exporting documents from his computer at the firm to his home computer. (Tr. 283). Mr. Gelman was informed that Respondent spoke to an individual in the IT Department about the firm's procedures for downloading materials. (Tr. 284).

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When Mr. Gelman learned Respondent had exported over 400 documents to his home computer without following the firm's procedures he was concerned about potential breaches of client confidentiality. (Tr. 284-5). When Mr. Gelman learned Respondent had a moonlighting business while employed by Holland & Knight, he believed those outside activities performed by Respondent were not permitted and against firm policy because Respondent was hired and paid a salary to work exclusively on firm matters. (Tr. 287-8, 294).

Robert Schnitz

Robert Schnitz is the operations manager for the litigation section at Holland & Knight. (Tr. 51-2). Mr. Schnitz is an attorney, but does not practice law in his position and his responsibilities include developing the firm's response to professional responsibility and liability matters that arise. (Tr. 50-53).

Mr. Schnitz was involved in the investigation of the 400 documents Respondent exported from his computer without authority and he reviewed those documents. (Tr. 54, 62). The documents included invoices to individuals who were not clients of the firm which were dated before and after Respondent began working for Holland & Knight, the operating agreement for Caulfield and financial documents that showed the monthly rents for properties related to Caulfield. (Tr. 64-5, 71-2; Adm. Ex. 4-7). Mr. Schnitz did not know how many of the documents were imported to the Holland & Knight computer from the Altheimer & Gray computer or how many of the documents were forms Respondent had developed at Altheimer & Gray for estate planning purposes. (Tr. 116-7).

The invoices that were dated during the time period Respondent was at Holland & Knight stated Respondent was an "Attorney at Law" and some of the invoices listed Respondent's address as Holland & Knight's office address. (Tr. 69-70; Adm. Ex. 4). Holland & Knight's computer service determined that the invoices dated during the time period Respondent was at

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the firm totaled $40,766 and the invoices dated during the time period Respondent was at Altheimer and Gray totaled $104,541.22, but Mr. Schnitz did not know whether those fees were actually collected by Respondent. (Tr. 70-1, 149). Mr. Schnitz acknowledged during his cross-examination that in some instances the same invoice was saved twice, but that he did not believe the duplicates were part of the calculation. (Tr. 112). Mr. Schnitz testified during his re-direct examination that he did not know for a fact that there were duplicate invoices only that they appeared to be similar. (Tr. 136).

After reviewing the documents Mr. Schnitz concluded Respondent violated Holland & Knight's policies and his agreement with the firm by working for and billing clients he did not put into the firm's system. (Tr. 65). Attorneys at Holland & Knight are required to remit any fees the attorneys receive for services rendered to the firm, except fees received for service as a corporate director. (Tr. 139-40). The fees Respondent received from his moonlighting business while he was employed by Holland & Knight should have been remitted to the firm and Respondent's moonlighting clients should have been clients of the firm. (Tr. 149, 155). Respondent did not disclose to anyone at Holland & Knight that he was conducting his own moonlighting business and he did not remit any of the funds he received from that business to the firm. (Tr. 70). Mr. Schnitz testified that Holland & Knight has never filed a civil case against Respondent seeking payment of the fees Respondent received from his moonlighting business and that Respondent did not divert any clients of Holland & Knight to his moonlighting business. (Tr. 111-2, 125, 155).

Respondent was required to fill out a due diligence and client conflicts questionnaire as part of his application to Holland & Knight and he did not include any information about his moonlighting business when he was asked to describe his law practice, give his employment history and provide a list of all the clients to whom he had rendered legal services. (Tr. 90-2,

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Adm. Ex. 11). Mr. Schnitz testified that Holland & Knight would not have hired Respondent if it had determined that he engaged in his moonlighting business without the knowledge of his former law firm. (Tr. 91). Additionally, Respondent's failure to list all of his clients prevented Holland & Knight from insuring that when it hired Respondent it did not raise a conflicts issue with any existing client. (Tr. 91-2).

Mr. Schnitz testified that Holland & Knight then ran a conflicts check to determine whether any of Respondent's clients from his moonlighting business had a conflict with Holland & Knight establishment claims. (Tr. 119). Mr. Schnitz did not conduct the check himself and did knot know whether a check was run for each client or whether any documents existed to show that the conflicts check was completed. (Tr. 119-20). Holland & Knight did not communicate with any of the clients from Respondent's moonlighting business and did not regard them as clients of the firm for any purpose including malpractice liability. (Tr. 120). None of the clients from Respondent's moonlighting business have contacted Holland & Knight since Respondent left the firm. (Tr. 120).

Respondent did not attach true copies of his federal income tax returns for 2000, 2001 and 2002 to his application to Holland & Knight, because they did not include any income he received from his moonlighting business. (Tr. 96; Adm. Ex. 12). Respondent's actual federal income tax returns for 2000, 2001 and 2002 indicated that his gross income from the moonlighting business was $4,150 in 2000, $10,796 in 2001 and $26,450 in 2002. (Tr. 99; Adm. Ex. 15 at 6; 16 at 7, 17 at 6).

Respondent also did not disclose his involvement with Caulfield to Holland & Knight on his application, which would have alerted the firm that he was engaged in a business outside of the firm and of potential liability issues that could arise if the firm was brought into a matter involving Caulfield. (Tr. 95). Mr. Schnitz determined that Respondent worked on Caulfield

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matters during normal business hours while he was drawing a salary from Holland & Knight. (Tr. 135). Mr. Schnitz testified that Holland & Knight does not control the investments that are made by its attorneys and Respondent was not forbidden from owning rental real estate, collecting rent from tenants, writing receipts for tenants, or preparing leases for tenants. (Tr. 119, 141). Holland & Knight would not have wanted the rents Respondent received from his tenants. (Tr. 141). Mr. Schnitz also testified Holland & Knight did not have any proprietary interest in Caulfield or the exported documents related to Caulfield. (Tr. 115).

Respondent's action of exporting a significant number of documents without authority was a violation of the firm's policy on exporting documents from computers. (Tr. 88). Holland & Knight requires that an attorney who wants to export a document must notify the IT Department and identify the document to allow the IT Department to make a copy of the document. (Tr. 88-9). The policy is especially important when an attorney is leaving the firm because Holland & Knight is responsible for maintaining the information in those documents, which is often attorney-client privileged material. (Tr. 89). Mr. Schnitz did not notify any Holland & Knight client Respondent provided services to that his or her confidentiality had been compromised or broken. (Tr. 122-3).

Holland & Knight generated reports which showed the billable hours Respondent recorded each day of every month he was employed by the firm. (Tr. 72-3; Adm. Ex. 9). Mr. Schnitz reviewed the reports and concluded Respondent's billable hours did not generate the income necessary to cover Respondent's annual salary of $156,000. (Tr. 73-4; Adm. Ex. 9). Holland & Knight also expended 12 % of Respondent's salary for benefits and some marketing costs in addition to his salary. (Tr. 77-8). Mr. Schnitz testified that the average amount of billable hours Respondent recorded each month was under 100 and the average amount of billable hours Respondent recorded each day was five. (Tr. 74, 85).

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Holland & Knight also generated reports which summarized the non billable hours Respondent recorded for the years he was at the firm. (Tr. 79; Adm. Ex. 10). Respondent's total number of non billable hours for all three years he was at Holland & Knight was 414.9. (Tr. 80; Adm. Ex. 10). Respondent was required to bill a total of 2500 hours made up of billable and non billable time each year he was at Holland & Knight. (Tr. 83). Mr. Schnitz testified that the 2500 hour requirement is meant to impress upon lawyers the expectation that the firm has their full time commitment and Respondent did not bill half of the 2500 hour requirement. (Tr. 83).

Mr. Schnitz conducted an analysis of the percentage of time Respondent spent on the Estate of Dresser matter from September 2004 through May 2005. (Tr. 86; Adm. Ex. 23). The analysis showed that overall Respondent spent 12.6% of the total time he recorded on the days he billed time to the Estate of Dresser matter working on the matter. (Tr. 87; Adm. Ex. 23). Mr. Schnitz did not know whether Respondent deliberately under-billed the client for his work on that matter in order to improve the reputation of the firm. (Tr. 114).

Thomas Kinasz

Thomas Kinasz was licensed to practice law in Illinois in 1982 and is a partner at Holland & Knight and part of the tax team which consists of five to six attorneys in the Chicago office. (Tr. 213-5). Mr. Kinasz reviewed the client files from Respondent's moonlighting business and found tax returns and business records used in connection with the preparation of those tax returns. (Tr. 215-6). Mr. Kinasz testified that the tax returns were similar to the types of tax returns Mr. Kinasz prepares at Holland & Knight and if Respondent had brought that business to the firm the tax team could have handled the work. (Tr. 216). Mr. Kinasz also testified that Respondent could have done the work himself if he had brought the business in to Holland & Knight. (Tr. 216).

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Mr. Kinasz spends approximately 10 to 15 percent of his time working on tax returns annually. (Tr. 220). Mr. Kinasz testified he does not actively promote tax returns as part of his tax practice, because it would not be efficient for him to prepare tax returns for clients on a regular basis due to the amount of time often required to prepare a return, especially for a new client. (Tr. 220-2). Mr. Kinasz charges his hourly rate for the preparation of a tax return, which is currently $480. (Tr. 217). Mr. Kinasz has some longtime clients for whom he does not do any work, except prepare one tax return a year, but as his hourly rates have increased some of those clients have dropped off. (Tr. 218-9). Many of those clients had other matters with the firm when he first began preparing their tax returns. (Tr. 219-20).

Mr. Kinasz testified that Holland & Knight generally requires its attorneys to bill at their hourly rate if they want to prepare tax returns for clients, but that sometimes an accommodation might be made for a long-time client who has a number of other matters being handled by the firm. (Tr. 222, 224). Mr. Kinasz also testified that if he was a relatively new lawyer at the firm he would promote tax return services as a means to bring in new clients to the firm. (Tr. 225).

MaryTerese Maciasz-Ornoff

MaryTerese Maciasz-Ornoff was married to Respondent for 13 years and has known him for 23 years. (Tr. 713). She and Respondent have three children together and were divorced on April 24, 2007. (Tr. 713-4).

Ms. Maciasz-Ornoff knew Respondent was conducting his own moonlighting business and was involved in Caulfield while he worked at Holland & Knight, but she only saw Respondent perform a small amount of that work at home. (Tr. 714-5). Ms. Maciasz-Ornoff was usually at home when Respondent was at home, but not always. (Tr. 720-1). Ms. Maciasz-Ornoff further testified Respondent removed his moonlighting client files from their home when she filed for divorce and had taken some of his belongings out of their home prior to her filing

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for divorce. (Tr. 716). She also testified that the family computer was damaged in a flood two years ago. (Tr. 715-6). Ms. Maciasz-Ornoff reviewed the Complaint and some of the individuals and entities Respondent prepared invoices for are not family or friends. (Tr. 718).

John Newlin

John Newlin is a partner at Jenner & Block. (Tr. 534). Mr. Newlin met Respondent at Altheimer & Gray when they were both associates in the estate planning group and has kept in touch with Respondent since Altheimer & Gray dissolved. (Tr. 535, 537). Mr. Newlin testified that there was no written policy at Altheimer & Gray that forbade anyone from doing tax returns or work on the side and no such policy was communicated to him. (Tr. 535).

Respondent told Mr. Newlin that he was preparing individual income tax returns for family members and friends in his neighborhood. (Tr. 536, 546). Mr. Newlin testified that Altheimer & Gray did not do personal income tax returns for working class people. (Tr. 535-6). The typical client at Altheimer & Gray was worth 40 to 50 million dollars and Respondent did not tell him he had clients worth that much in his moonlighting business. (Tr. 548).

Mr. Newlin was not aware of any other legal work Respondent did for the people in his neighborhood besides a simple will he prepared for his friend's mother. (Tr. 546-7). Mr. Newlin did not tell anyone at Altheimer & Gray that Respondent was doing legal work as part of his moonlighting business. (Tr. 541). Respondent did all the work he was assigned at Altheimer & Gray, he was diligent and worked full time during the week and on the weekends. (Tr. 536).

Mr. Newlin knows people who know Respondent outside of the legal profession including Sean Gallagher, Jay Riordan, Danny Riordan and Sandy Riordan. (Tr. 537). Mr. Newlin also knows people who know Respondent in the legal profession including Doug Johnson, John Buttita, Debra Doyle and John Strye. (Tr. 537, 540). Mr. Newlin testified that Respondent's reputation among those people is that he is honest, truthful, straightforward,

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diligent and hard-working. (Tr. 538-40). Mr. Newlin is aware of the ARDC charges against Respondent and they did not change his opinion of Respondent's reputation. (Tr. 539). Mr. Newlin did not recall how many people he told the ARDC investigator he had talked to about Respondent's reputation. (Tr. 591-2).

Debra Doyle

Debra Doyle is an attorney and was licensed to practice law in November 2000. (Tr. 578). Ms. Doyle was a summer associate at Altheimer & Gray in 1999 and joined the firm as an associate in 2000. (Tr. 578-9). Ms. Doyle worked at Altheimer & Gray in the estate planning department until the firm was dissolved in July 2003 and then joined Jenner & Block where she is currently a partner. (Tr. 579). Respondent was her primary supervisor and mentor during the three years she was an associate at Altheimer & Gray. (Tr. 580).

Ms. Doyle observed Respondent's work habits while she was at Altheimer & Gray and testified that he was at the office from 6:00 a.m. to 6:00 p.m. or 7:00 p.m. and also worked on the weekends. (Tr. 580). Ms. Doyle never saw Respondent prepare any personal income tax returns at the office. (Tr. 581). Ms. Doyle testified that no one in the estate planning department prepared personal income tax returns, but it was possible someone at Altheimer & Gray outside of her department could have prepared a personal income tax return for a client. (Tr. 582, 589-90). Ms. Doyle was not familiar with the policies and practices at Altheimer & Gray because she was an associate and not a partner. (Tr. 590-1).

Respondent told Ms. Doyle that he prepared tax returns for his moonlighting clients, but Respondent did not tell her that he did any legal work such as preparing trusts and estates. (Tr. 582, 585). Ms. Doyle was not aware of any written or oral policy at Altheimer & Gray which prohibited Respondent from preparing tax returns for his moonlighting clients. (Tr. 582). Ms. Doyle testified that if she had known Respondent was doing legal work for his moonlighting

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clients she would not have reported it to anyone because Respondent's moonlighting clients were not the type of clients Altheimer & Gray would have represented. (Tr. 586). Respondent prepared tax returns for his friends and family that lived in Oak Park and were parishioners of his church. (Tr. 587). Respondent's moonlighting clients were not the types of clients Altheimer & Gray catered to because they were not wealthy, did not have large estates and would not have paid the firm's fees. (Tr. 586-7).

When Altheimer & Gray dissolved Ms. Doyle had the IT Department burn the estate planning department's forms and documents on a disk and she took that disk with her to Jenner & Block. (Tr. 583). The disk included forms and documents from all the attorneys in the estate planning department. (Tr. 583). Ms. Doyle still uses those forms and documents at Jenner & Block, but she has improved upon them. (Tr. 583).

Ms. Doyle knows Respondent's reputation for honesty, integrity, truth and veracity is excellent from working with him at Altheimer and Gray and her acquaintance with him since the firm dissolved. (Tr. 583-4). Ms. Doyle has spoken to several attorneys about Respondent's reputation including John Buttita, Jack Newlin and Angelo Tiesi and she has spoken to her friends and family about Respondent. (Tr. 591). Ms. Doyle has reviewed the Complaint and Answer in this matter and the charges against Respondent have not changed her opinion of his reputation. (Tr. 584-5). Ms. Doyle did not recall how many people she told the ARDC investigator she had talked to about Respondent's reputation. (Tr. 591-2).

John Strye

John Strye is an estate planning attorney at Bronson & Kahn. (Tr. 550-1). He met Respondent in 1993 when they both worked at Deloitte & Touche. (Tr. 551). Mr. Strye joined Altheimer & Gray as an associate in the estate planning department in 1997 and became a non equity partner in 2002. (Tr. 552-3).

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The attorneys and paralegals in the estate planning department at Altheimer & Gray were not in the practice of preparing individual income tax returns, partnership tax returns or corporation tax returns and he was unaware of any instance where Altheimer & Gray prepared an individual income tax return for a working class person. (Tr. 553, 564). The estate planning department did prepare gift tax returns and fiduciary income tax returns. (Tr. 564). Mr. Strye testified the firm would have prepared income tax returns for clients if they requested it and were willing to pay the firm's rates. (Tr. 565).

Respondent told Mr. Strye he prepared some income tax returns on the side, but Mr. Strye was not aware that Respondent signed the tax returns as an attorney or that he did legal work in the course of his moonlighting business. (Tr. 553-4, 561-2). Mr. Strye was not aware of any policy at Altheimer & Gray that prohibited Respondent from doing tax returns on the side and he did not consider the preparation of tax returns as the practice of law. (Tr. 554). Mr. Strye did not believe he was required to report Respondent's preparation of tax returns to his superiors at Altheimer & Gray, but if he had known Respondent was doing legal work he would have "most likely" reported that to someone. (Tr. 554, 562).

There was no written policy at Altheimer & Gray regarding whether all the legal work the attorneys performed had to be through the firm such as providing legal services for family and friends. (Tr. 567). Mr. Strye prepared a power of attorney for his sister without getting approval from anyone at the firm. (Tr. 567-8). Altheimer & Gray required its attorneys to conduct a conflicts check and establish a client billing number and file for each new client of the firm. (Tr. 563). The firm also required attorneys to bill and remit any fees and costs collected from the firm's clients to the firm. (Tr. 563).

Mr. Strye worked closely with Respondent at Altheimer & Gray because they were at a similar level. (Tr. 553). Respondent did all the work that was assigned to him, he was a good

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worker and he sometimes worked on the weekends. (Tr. 553). Mr. Strye never saw Respondent work on the tax returns for his moonlighting business at the office. (Tr. 554).

Mr. Strye testified that it is important for estate planning attorneys to develop a library of forms that they can use for the different types of estate planning instruments. (Tr. 555). Forms and client documents are regularly used in estate planning as templates to prepare new documents and as an attorney gains experience the forms are honed and improved and become a more valuable work product to the attorney. (Tr. 555-6). When Altheimer & Gray dissolved each estate planning attorney received a disk with their own work product on it. (Tr. 555). Mr. Strye loaded the disk onto his computer at his current firm and uses the forms on it regularly to prepare newer documents for clients. (Tr. 556). Mr. Strye testified that without the disk he would probably be out of business. (Tr. 556).

Respondent loaded his disk from Altheimer & Gray onto his computer at Holland & Knight, but could not locate the disk when he was leaving Holland & Knight and spoke to Mr. Strye about emailing those forms to himself because Respondent did not want to go to a new firm without those documents. (Tr. 557-8, 569). Mr. Strye testified that an estate planning attorney going to a new firm without his forms would be akin to "going naked" or going back to law school. (Tr. 557-8). Mr. Strye did not know what documents Respondent emailed from his computer at Holland & Knight to his computer at home and Respondent did not tell him there was a specific procedure that he needed to follow before he could email himself the documents. (Tr. 569-70). Mr. Strye did not give Respondent legal advice about emailing the documents; they spoke as friends and colleagues. (Tr. 571).

Mr. Strye knows other people in the legal profession who know Respondent and Respondent has a strong reputation for honesty, integrity and trustworthiness. (Tr. 558-9). Mr. Strye testified he did not speak specifically to anyone about Respondent's reputation for truth

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and veracity, but he never heard anything negative about Respondent's reputation or about his attitude or work product. (Tr. 559, 572). Mr. Strye read the Answer in the ARDC matter and it did not change his opinion of Respondent's reputation. (Tr. 560).

Sean Gallagher

Sean Gallagher met Respondent when they were 17 years old at a summer job at the office of the Cook County Recorder of Deeds and they both went to college at the University of Illinois and law school at DePaul University College of Law. (Tr. 475). Mr. Gallagher has worked in the Cook County States Attorney's Office and in the legal department at the Board of Trade, but since January 2008 he has concentrated his work on the real estate properties he owns. (Tr. 476).

Mr. Gallagher and Respondent co-own Caulfield, which is a growing real estate business. (Tr. 476). Respondent drafted the documents for the formation of Caulfield LLC and Caulfield Co. and assisted Mr. Gallagher with the legal work for the closings on the buildings they bought. (Tr. 486-7). Mr. Gallagher had the primary responsibility of writing leases and renewals of leases for the tenants because Respondent's work for his law firm was his priority and Mr. Gallagher's schedule was more flexible on the evenings and weekends because he did not work as many hours as Respondent. (Tr. 477, 490).

Between 2002 and 2005 Respondent generally worked a total of seven or eight hours per week on Caulfield business over two weekday nights and one weekend morning. (Tr. 483-4). Mr. Gallagher also talked to Respondent on the phone occasionally during the week about Caulfield and once in awhile Respondent sent him a fax or email regarding Caulfield while he was at work, but any work that they did regarding the buildings was done at night or on the weekends. (Tr. 478, 492-3). When they first started the business Mr. Gallagher and Respondent

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did some of the painting and maintenance work on the buildings, but since 2002 they have hired other people to do those jobs. (Tr. 478-9).

Mr. Gallagher was referred to Rich Postlethwait by a co-worker of his at the Board of Trade and has dealt with him approximately 12 times to refinance residential buildings that he owns. (Tr. 479-80). Mr. Gallagher has never met Mr. Postlethwait in person and initially gave him his financial information over the phone. (Tr. 496-7). Mr. Gallagher generally reviewed the personal financial statements Mr. Gallagher sent him and "looked over" the other loan documents, but he did not read each of them closely. (Tr. 482, 496-7). Mr. Gallagher generally lists half the value of the property Caulfield LLC owns as his personal asset when he fills out loan documents. (Tr. 494-5).

Mr. Gallagher knows a lot of people who know Respondent because he has been friends with him since the end of high school, through college and law school and presently and Respondent has a great reputation among those people for honesty, integrity, truth and veracity. (Tr. 484-5). Respondent is known for being an honest, hard-working, "good guy." (Tr. 485). Mr. Gallagher is aware of the ARDC charges against Respondent and that he did accounting and legal work for friends and family outside of his law firm. (Tr. 492-3).

Douglas Johnson

Douglas Johnson is an attorney and was admitted to practice law in Illinois in 1993. (Tr. 513). He is currently a solo practitioner. (Tr. 513). Mr. Johnson met Respondent in college and has known him for approximately 20 years. (Tr. 513).

Mr. Johnson testified that Respondent is a hard working lawyer. (Tr. 516-7). Respondent assisted him with his father's estate when he passed away and did not charge him, but was a "tremendous counselor" in helping Mr. Johnson understand what needed to be done. (Tr. 531). Mr. Johnson has also steered and referred business to Respondent. (Tr. 531). While

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Respondent worked at Holland & Knight Respondent and Mr. Gillies met with Mr. Johnson to refer a small litigation matter to him, because it was a case that Holland & Knight did not want. (Tr. 519-20).

Respondent and Mr. Johnson began playing in a band together in college and still play in a band together. (Tr. 514-5). The band has played some charity benefit concerts raising money for children and schools and recently partnered with Children's Memorial Hospital for the profits from their CD sales to be donated to the hospital. (Tr. 515). Respondent has participated equally with the other band members in the band's charitable activities. (Tr. 516). Mr. Johnson further testified that Respondent is frugal and drives an old car without heat or air-conditioning and works very hard for his family. (Tr. 517).

Mr. Johnson knows people who know Respondent including people in the legal field, Respondent's friends, people in the band, people in his office and his wife. (Tr. 517-8, 526-9). Mr. Johnson specifically named some of the people he had spoken to about Respondent's reputation for honesty and integrity including: Chris Kendall, Michael Caulfield, Bob Cummings, Doug Chalmers, Carmen Taglia, Dave Burnell, Joe Brown, Pam Johnson, Marty Lahart, Dick Lahart and Maryann Lahart. (Tr. 526-9). Respondent has a very good reputation for truth, veracity, honesty and integrity among those people. (Tr. 517-8, 526-9). Mr. Johnson is aware of the ARDC charges against Respondent and they did not change his opinion of Respondent's reputation in the community. (Tr. 520-1). Mr. Johnson assisted Respondent in drafting his initial response to the ARDC's inquiry into his conduct. (Tr. 523-4).

James Riordan

James Riordan is a home builder and has known Respondent since kindergarten. (Tr. 498-9). Respondent did the tax returns for Mr. Riordan's business for four or five years when it first started and did Mr. Riordan a favor by charging a modest fee for his work. (Tr. 499-501).

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Mr. Riordan asked Respondent to prepare the tax returns for his business because he knew Respondent was a perfectionist. (Tr. 501).

Mr. Riordan knew Respondent worked for Altheimer & Gray and Holland & Knight, but he did not consider hiring a large law firm to prepare his tax returns because Mr. Riordan could not afford to pay the fees charged by a large law firm. (Tr. 501-2). Respondent did not do legal work for Mr. Riordan. (Tr. 511). Mr. Riordan never visited Respondent at his law firm offices and did not receive an invoice from Respondent with his law firm's address on it. (Tr. 511). When Respondent stopped preparing tax returns Mr. Riordan hired another friend to prepare the tax returns for his business. (Tr. 503).

Mr. Riordan knows people in their community who have known Respondent for a long time and Respondent's reputation among those people for honest and integrity is very high. (Tr. 504-6). Mr. Riordan has spoken to other individuals in the community about what a "great guy" Respondent is and about how he is an ethical and honest man. (Tr. 308-9). Mr. Riordan is aware of the ARDC charges against Respondent and they did not change his view of Respondent's reputation. (Tr. 505-6).

Respondent

Respondent's parents immigrated to the United States from Poland after they were married. (Tr. 593). Respondent has three younger brothers and Respondent's father worked as a tailor, but has been retired for six years. (Tr. 593-5). Respondent lives near his parents and sees them regularly. (Tr. 595). Respondent's parents are very distressed and concerned about the ARDC proceedings against him. (Tr. 632). Respondent and his ex-wife MaryTerese were divorced in 2007 and have three children together. (Tr. 602).

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Respondent received a degree in accounting from the University of Illinois and a law degree and a LLM in taxation from DePaul University College of Law. (Tr. 342-3, 597). Respondent was licensed to practice law in Illinois in 1992. (Tr. 342, 597-8).

Respondent worked for Deloitte & Touche as an associate on the tax staff for approximately two years after graduating from law school. (Tr. 598, 655). Respondent then worked for a small law firm where he did tax work, estate planning, retirement benefits planning and some transactional work. (Tr. 598-9). From there, Respondent went to work for a firm called Lillig & Thorsness doing estate planning and administration work and then to a firm called Gould & Ratner doing estate planning which involved more money and more sophisticated strategies. (Tr. 599-600).

Respondent then worked for Altheimer & Gray, which was a move up for him because of the reputation of the firm and the exposure the work he did received. (Tr. 600). Respondent worked on some evenings and weekends while he was at Altheimer & Gray and completed all the work he was assigned. (Tr. 601, 617). Respondent was part of the estate planning department while he was at Altheimer & Gray which had six to eight lawyers. (Tr. 356). Respondent had enough work at Altheimer & Gray and was busy. (Tr. 608). When Altheimer & Gray dissolved, Respondent had to contribute to the settlement of the bankruptcy. (Tr. 369). Respondent also needed to find a new job quickly to support his family. (Tr. 620). Mr. Fargo and Mr. Gilles asked Respondent to apply at Holland & Knight and gave Respondent the expectation that he could take over their practice when they retired. (Tr. 357-8).

Respondent was hired at Holland & Knight as a senior counsel. (Tr. 369, 371). There were approximately 10 to 11 attorneys in the Private Wealth Services group and Respondent was in the office Monday through Friday from approximately 7:30 to 8:45 a.m. to 5:00 p.m. (Tr. 371). Respondent generally did not work weekends or nights. (Tr. 371). The Private Wealth

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Services group was viewed as an under-producing department and there were discussions about whether the whole department would be cut or just the three attorneys from Altheimer & Gray that moved to Holland & Knight. (Tr. 683).

Respondent was engaged in his moonlighting business throughout the time he was at Altheimer & Gray and Holland & Knight, and a portion of the services Respondent provided through his moonlighting business included the practice of law. (Tr. 344-5, 389). From 1998 to 2005, Respondent received a total of $105,756 in revenue and a total of $70,763 in net profit from his moonlighting business. (Tr. 394; Adm. Ex. 36). Respondent did not read Chapter 6 of the Holland & Knight handbook and did not remit any of the income he received from his moonlighting business to Holland & Knight. (Tr. 387, 629).

Respondent never diverted an Altheimer & Gray or Holland & Knight client to his moonlighting practice and never took a payment from any person that was due to Altheimer & Gray or Holland & Knight for work that was done for one of the firm's clients. (Tr. 635-6). Respondent told some attorneys at Altheimer & Gray about his moonlighting business, but did not tell any attorneys at Holland & Knight about his moonlighting business. (Tr. 345-7).

Respondent began moonlighting after he graduated from law school and has never denied to the ARDC that he had a moonlighting business. (Tr. 344, 613-4). When Respondent first began his moonlighting business he thought it consisted of work that the firm he was affiliated with at the time would never do and therefore he thought it was permissible for him to do. (Tr. 616). In retrospect, Respondent is ashamed that he continued to engage in his moonlighting business because he failed to appreciate the conflict of interest issues as well as the potential exposure for malpractice to the firm that he was working for. (Tr. 616, 636). Respondent never did a conflicts check for any of his clients from his moonlighting business. (Tr. 387).

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Respondent prepared tax returns for his moonlighting clients and signed some of the returns as his clients' attorney. (Tr. 389-90; Adm. Ex. 29). Respondent drafted wills and powers of attorney for his moonlighting clients. (Tr. 344, 389; Adm. Exs. 28, 32). Respondent also drafted organizational documents for limited liability corporations, partnership agreements, and other corporate documents to a limited extent for some of his moonlighting clients. (Tr. 388; Adm. Exs. 27, 30, 33).

Respondent primarily did the work for his moonlighting business on evenings and weekends in the basement of his former marital home, but there were some instances where he did some of that work at Altheimer & Gray and Holland & Knight. (Tr. 612, 663). Respondent purchased and used Turbo Tax software to prepare tax returns for his moonlighting clients. (Tr. 611). Respondent had the Turbo Tax software on his home computer and did not have it on his computer at Altheimer & Gray or Holland & Knight. (Tr. 611-12). Respondent sometimes went to the homes of his clients, but he never had the clients come to Altheimer & Gray or Holland & Knight. (Tr. 615). Respondent used some of Holland & Knight's equipment, such as a fax machine, to a limited extent to conduct his moonlighting business. (Tr. 392).

Respondent's moonlighting clients knew he was an attorney and that he worked at a law firm downtown, but none of his moonlighting clients asked to be represented by his law firm. (Tr. 615-6). Respondent generally disclosed the fact that he worked at Holland & Knight to his moonlighting clients from August 2003 to May 2005. (Tr. 388). Some of the invoices Respondent sent the clients from his moonlighting business stated that he was an "Attorney at Law" and listed his office address at Altheimer & Gray and Holland & Knight, but the invoices did not have the name of either law firm on them. (Tr. 391, 669). Respondent used the address of his residence on the other invoices he sent his moonlighting clients. (Tr. 668). Respondent testified that he used his residence as the billing address when the client was from the suburbs

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and that he used his office address as the billing address when the client was located in the city. (Tr. 668-9). Respondent did not receive any payments from moonlighting clients at Holland & Knight. (Tr. 681).

Respondent and Sean Gallagher formed Caulfield LLC in October or November 2002, under which they co-own and manage residential apartment buildings. (Tr. 348). Respondent prepared the articles of organization and an operating agreement for Caulfield LLC. (Tr. 604). Caulfield LLC owned approximately four or five apartment buildings with 60 units while Respondent was at Holland & Knight. (Tr. 350). Respondent and Mr. Gallagher also formed Caulfield Co. in November 2003 to hold a real estate brokerage license. (Tr. 348-9). Respondent disclosed his involvement in Caulfield to two attorneys at Altheimer & Gray, but did not disclose his involvement in Caulfield to any attorneys at Holland & Knight. (Tr. 349, 354, 356).

Respondent was active in managing Caulfield during part of the time he was at Altheimer & Gray and the entire time he was at Holland & Knight. (Tr. 351-3, 607). Respondent collected rents, made sure expenses were paid and communicated with tenants to ensure their rent payments were made in a timely fashion. (Tr. 607). Respondent and Mr. Gallagher also did some of the building maintenance and unit renovations when they first began the business to reduce costs, but they now hire other people to do that work. (Tr. 352, 607-8). Respondent's management of Caulfield was done during the evenings and weekends and did not interfere with his work at Altheimer & Gray or Holland & Knight. (Tr. 608).

When Respondent sought employment at Holland & Knight he submitted an employment application to the firm, which specifically requested Respondent furnish a list of all his clients in the past five years. (Tr. 358, 360-1; Adm. Ex. 11 at 9). Respondent testified that he did not disclose the existence of his moonlighting business or the clients from his moonlighting business

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on his employment application for Holland & Knight because he focused the information he provided to the trust and estates position for which he applied. (Tr. 358-9). At his sworn statement in January 2006 Respondent stated that he did not know why he did not disclose his moonlighting business on the application. (Tr. 359-60). Respondent testified that he did not disclose the fact that he co-owned Caulfield LLC on the section of the application which asked him to list all organizations for which he had a significant ownership interest or served as an officer, director or general partner, because he viewed it as an investment in real estate and not as a business investment. (Tr. 361).

Holland & Knight required Respondent to submit pages 1 and 2 of his tax returns for the previous three years with his employment application and Respondent did not submit the actual tax returns that he filed for those years. (Tr. 362). Respondent eliminated the income from his moonlighting business when he prepared the tax returns he submitted to Holland & Knight using a computer program. (Tr. 362-4). Respondent had a sense that he was doing something wrong when he prepared the altered tax returns he submitted to Holland & Knight and he did not sign them because he had altered them. (Tr. 673-4). Respondent did sign the employment application. (Tr. 687; Adm. Ex. 11 at 8). Respondent thought that he was providing Holland & Knight with all the information necessary to confirm his salary history, but now realizes he should have fully disclosed all of his income. (Tr. 675).

Respondent testified that he is ashamed of what he did and recognized that he should have submitted his actual tax returns to Holland & Knight. (Tr. 365, 621-2). Respondent admitted that it was "a little dishonest" to change the tax returns for the purpose of submitting an application and if he had not done that he might not be before the ARDC. (Tr. 365-6). Respondent stated that he regrets not being completely honest with Holland & Knight regarding his moonlighting business because the conduct of an attorney should have a high standard of

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honestly and he fell short of that standard when he made the application to Holland & Knight. (Tr. 367). At his sworn statement in January 2006 Respondent testified that he regretted not being completely honest with Holland & Knight regarding his moonlighting business "because I'm in this mess I am in right now." (Tr. 368).

Holland & Knight instituted the requirement that its attorneys bill 2500 hours while Respondent worked there and Respondent's billable hours did not meet that requirement. (Tr. 373). Respondent's billable hours were over 100 hours for four of the months that he worked at Holland & Knight and the remaining months his billable hours were below 100 hours. (Tr. 372).

Respondent testified that one of the primary reasons why his billable hours were low was that the partners in the Private Wealth Services group did not have enough work to give him. (Tr. 372). Respondent never turned down work at Holland & Knight and did all the assignments he was given. (Tr. 632). Respondent did not specifically ask Mr. Fargo, Mr. Gilles or Mr. Gelman for work, but they were all aware of Respondent's work load and would give him work if they had it, to keep Respondent profitable because his hours were generally low. (Tr. 685-6). Respondent testified that he never told a partner he could not do an assignment because he was too busy, but did not recall whether he told a partner that he could not do an assignment because he was working on another assignment which was more urgent. (Tr. 372-3). Respondent completed all the work he was assigned at Holland & Knight, but there may have been one or more files he returned to the assigning partners when he left Holland & Knight because he had not finished the work on those files. (Tr. 617).

Respondent was assigned to the Estate of Dresser matter after the client became frustrated with the prior attorney working on the file. (Tr. 664). Both Mr. Fargo and Mr. Gillies were aware that he was working on the Estate of Dresser matter which took Respondent's time away from their files. (Tr. 373). The Estate of Dresser matter was a contested estate

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administration and Respondent could not focus on other projects while he was working on the matter because it was the first time he had handled that type of case. (Tr. 664-5, 667). Respondent did not document all the time that he spent on the Estate of Dresser matter because the fees charged to the client for the matter were already in excess of what had been paid to the firm and he had to spend a considerable amount of time on the accounting for the estate to get it to balance. (Tr. 665-6).

Respondent did not develop or bring in any clients to Holland & Knight, but he tried to build his business while he was at the firm. (Tr. 608-9, 642). Respondent did speaking engagements on probate matters and took people to lunch to maintain relationships with stockbrokers, insurance professionals, trust professionals and former accounting colleagues who might refer business to Respondent. (Tr. 642). Respondent also campaigned for Village Trustee of Oak Lawn from the late winter of 2004 to the spring of 2005 because Holland & Knight wanted its attorneys to do community activities. (Tr. 643, 683). Holland & Knight was aware that he was campaigning. (Tr. 683). Respondent did not win the election. (Tr. 683-4).

During his review in the spring of 2005 Respondent was told that his billable hours were too low. (Tr. 374). Respondent was not told that he would be fired because he did not bill enough hours, but he received "soft warnings" from Mr. Gelman regarding the fact that Respondent's hours were low and Mr. Gelman implied Respondent might not have a future at Holland & Knight, which prompted Respondent to inquire at Fagel Haber. (Tr. 374, 631, 652). Respondent did not consider himself on partnership track at Holland & Knight because he did not have enough billable hours to make partner. (Tr. 632). Respondent accepted an offer from Fagel Haber in spring 2005 to join the firm as a non equity partner. (Tr. 375).

Respondent gave notice to Holland & Knight that he was leaving the firm in May 2005 and Mr. Gelman was assigned as his transition partner to handle the procedures for Respondent's

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departure from the firm. (Tr. 377). Respondent had received a disk of his work product at Altheimer & Gray when the firm dissolved and gave it to an individual at Holland & Knight who put all the documents into the firm's document system. (Tr. 623-4). The disk contained thousands of documents including letters of transmittals, schedules, Excel spreadsheets, wills, trusts and partnership agreements. (Tr. 622-3, 625). Respondent used those documents while he was at Holland & Knight as a starting point when drafting documents for the firm's clients. (Tr. 623-4). Respondent did not want to leave Holland & Knight without those documents because he had been hired to be the main estate planner at Fagel Haber and he needed those precedent forms. (Tr. 626). Fagel Haber did not have any of its own forms besides some wills and trust forms. (Tr. 626-7).

Mr. Gelman told Respondent to contact the IT Department regarding the procedure for exporting any documents on his computer at Holland & Knight to a disk or his home computer. (Tr. 378). Respondent spoke with a person in the IT Department who told him what the procedure was and Respondent understood that the procedure could not possibly be completed before his departure from the firm and told him "[d]on't bother getting consent from everybody because it's not going to happen." (Tr. 378, 651). Respondent did not ask anyone whether he could obtain the documents after he left the firm. (Tr. 651).

Respondent called his friend John Strye, who is an attorney, and spoke to him about exporting the documents. (Tr. 378, 627). Respondent got the impression that Mr. Strye thought it was acceptable for Respondent to take the documents, but he did not consult him as a lawyer, only as a friend. (Tr. 379). After speaking with Mr. Strye, Respondent emailed copies of over 400 documents from his computer at Holland & Knight to his home computer. (Tr. 627).

The documents Respondent exported included invoices he prepared for his moonlighting business, forms of leases for Caulfield, trusts, wills, letters of transmittal summarizing packages

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or plans, memos that he had done a significant amount of research to prepare, partnership agreements, LLC operating agreements, collateral documents related to partnership transactions, security documents and sale documents. (Tr. 627, 677-8). The documents remained on the Holland & Knight system and they were all documents Respondent had drafted or prepared and wanted to have access to in the future for his practice. (Tr. 628, 677-80). Respondent did not inform Mr. Gillies or Mr. Fargo that he was going to export those documents. (Tr. 379-380).

Some of those documents Respondent exported contained attorney-client privileged information. (Tr. 380-1). Respondent did not use any of those documents to solicit former clients of Holland & Knight. (Tr. 679, 681). Respondent contacted Holland & Knight clients after he exported the documents to his home computer to determine if they wanted to move their files with him to Fagel Haber, but he did not contact them beforehand. (Tr. 381). Approximately five or six clients moved their files with him to Fagel Haber. (Tr. 381).

Respondent ceased doing moonlighting work in the spring of 2005 when he became aware that he was getting divorced and received the filing of a petition for dissolution of marriage. (Tr. 618, 671). Respondent gave up his moonlighting business because he realized pursuing the extra work he did was not worth the damage it caused. (Tr. 672). Respondent had additional moonlighting clients that were not represented in the invoices he emailed from his computer at Holland & Knight to his home computer. (Tr. 396, 438). Respondent was notified of the ARDC proceedings approximately one month later and had recently started working at Fagel Haber. (Tr. 399, 618).

Respondent informed Fagel Haber about the ARDC proceedings and the firm paid for his legal fees in defending the charges against him until the fall of 2006 when the Complaint was filed. (Tr. 618-9). Respondent worked hard at Fagel Haber and received bonuses that were above the normal pay. (Tr. 619-20). Respondent billed between 50 and 100 hours per month at

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Fagel Haber. (Tr. 382). Respondent was terminated from Fagel Haber in June 2007 because of his low billable hours and his pending ARDC matters. (Tr. 383, 671). Respondent is currently self-employed in an of-counsel relationship with a law firm in LaGrange, Illinois, which is made up of attorneys Respondent worked with at Lillig & Thorsness. (Tr. 603).

Respondent signed a loan application on April 27, 2007, which stated that his monthly income at Holland & Knight was $15,000 from August 2003 to May 2005 and that his current monthly income was $18,500. (Tr. 427-8; Adm. Ex. 24 at 19-20). Respondent was never paid those salaries at Holland & Knight or Fagel Haber. (Tr. 428-9).

The loan application also provided Respondent had $130,000 in savings at the time, which he did not, and that his real estate was valued at $1,580,000. (Tr. 429; Adm. Ex. 24 at 20). Respondent testified that the combined value of the real estate he owned through Caulfield and the marital residence he owned at the time was approximately $1,580,000. (Tr. 430). The application also showed Respondent had a mortgage obligation of $1,200,000 on the real estate valued at $1,580,000 which was the entirety of the loans against the two properties. (Tr. 634-5). Mr. Gallagher had an interest in the real estate owned by Caulfield LLC and his ex-wife had an interest in the marital residence, but Respondent owned the whole debt on the properties jointly and severally and he owned other real estate and testified that the value of all the real estate he owned possibly exceeded $1,580,000. (Tr. 430-1, 635).

The second page of the application stated Respondent was obligated to pay $2,100 in child support per month, but on the third page of the application a box was checked "No" in response to a question regarding whether Respondent was obligated to pay child support. (Tr. 433, 448; Adm. Ex. 24 at 20-1). Respondent was obligated to pay child support on April 27, 2007, because his divorce had been finalized that morning. (Tr. 433).

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Mr. Postlethwait prepared the loan document after speaking to Respondent on the phone, but they never had a formal interview where Respondent provided the information on the application. (Tr. 454). Respondent has never met Mr. Postlethwait, but he had done two prior deals with him to refinance his marital residence and knew that Mr. Gallagher had done several deals with him. (Tr. 454, 457-8). Respondent testified that he did not provide the figures that appeared on the loan application and did not know how Mr. Postlethwait arrived at the figures because Respondent did not provide him with his income from Holland & Knight or Fagel Haber or an estimate of the value of his real estate interest. (Tr. 431, 451-2, 455).

Respondent signed the loan application under penalty of perjury at the closing, but did not read the document and check it over before he signed it and at the time he signed the application the money had already been wired to the closing. (Tr. 434, 450-2). Respondent regretted not reading the loan application and acknowledged that it is not appropriate to sign any document without reading it. (Tr. 452). Respondent did not read the mortgage or the note either, but he did read the seller's documents to make sure that he received valid title, that there were no other liens on the title and that the figures on the transaction were accurate. (Tr. 452). Respondent testified that he should have reviewed the loan application more thoroughly at the closing to ensure that there were no inaccuracies especially because he signed it under penalty of perjury. (Tr. 636).

Respondent has played guitar since he was 12 years old and currently plays in a band that does some unpaid performances for charity. (Tr. 605-6). The band also donates the profits from its CD sales to Children's Memorial Hospital. (Tr. 606).

Respondent has cooperated with the ARDC during the investigation and prosecution of the proceedings. (Tr. 632). Respondent has no prior discipline. (Tr. 633). Respondent is

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ashamed that he did not conduct himself at the full level of honestly and integrity that is required of attorneys and is not satisfied with his conduct. (Tr. 636-7).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must establish charges of lawyer misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill.2d 163, 168, 710 N.E.2d 390 (1999). It is well settled that "clear and convincing evidence is a standard of proof, which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, sec. 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12).

It is the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh the conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). With the above principles in mind and after careful consideration of the admitted facts, testimony and exhibits, we make the following findings.

Count I

We find Respondent engaged in the following misconduct:

  1. breach of the fiduciary duties of good faith and honesty to Altheimer & Gray and its partners; and

  2. conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct.

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Respondent had a fiduciary duty of loyalty to Altheimer & Gray as an associate and a partner at the firm. See Corroon & Black of Illinois, Inc. v. Magner, 145 Ill.App.3d 151, 160, 494 N.E.2d 785 (1986) (employee owes employer duty of fidelity and loyalty); Couri v. Couri, 95 Ill.2d 91, 98, 447 N.E.2d 334 (1983) (a fiduciary relationship exists between partners and each is bound to exercise the utmost good faith and honesty in all dealings and transactions relating to the partnership). Respondent's duty of loyalty existed independent of his employment agreement with Altheimer & Gray and the firm's policies. Respondent breached his duty of loyalty by diverting from the firm client opportunities and potential legal fees associated with his clients when he provided legal services to clients in the course of his moonlighting business without the firm's knowledge.

Respondent had a fiduciary duty to disclose his outside clients to the firm and give the firm the opportunity to accept or decline the representation of those clients. His failure to do so constituted a misrepresentation by omission. Respondent admitted that he did not disclose his moonlighting activities to the firm and potentially put the firm at risk for conflicts issues because of his failure to disclose his outside practice to the firm.

Respondent argued that the clients from his moonlighting business were not clients that Altheimer & Gray would have been interested in representing and the testimony from attorneys who worked at Altheimer & Gray with Respondent and were aware of his moonlighting business supported this. Mr. Newlin and Ms. Doyle both testified that Respondent's moonlighting clients were people from his neighborhood who did not have the net worth of the clients Altheimer & Gray generally represented. However, because Respondent never notified Altheimer and Gray about his moonlighting clients, Respondent still deprived the firm of the opportunity to represent the clients.

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We do not find Respondent breached his fiduciary duty to Altheimer & Gray by preparing individual tax returns for his moonlighting clients because the preparation of tax returns is primarily an accounting function and the attorneys who worked at Altheimer & Gray testified the firm did not provide that type of service to its clients. United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983); In re Sanders, 96 CH 0633, (Review Bd. Dec. at 15). Mr. Newlin, Mr. Strye and Ms. Doyle all testified that the attorneys at Altheimer & Gray were not in the practice of preparing personal income tax returns for clients. Additionally, we decline to make any findings regarding whether Respondent violated his employment agreement with Altheimer & Gray or any of the firm's policies because a violation of either would not in and of itself constitute a violation of Respondent's ethical obligations as an attorney.

We further find the evidence showed Respondent did a majority of the work for his moonlighting practice at home and there was no clear and convincing evidence he used the firm's resources for his own practice or did not fully devote himself as an employee of Altheimer & Gray. Respondent testified that he worked some evenings and weekends while he was at Altheimer & Gray and completed all the work he was assigned. Respondent also testified that he primarily did the work for his moonlighting business at home, but that there were a few instances when he did some of that work at Altheimer & Gray. Respondent's testimony was supported by the testimony of all the attorneys who worked with him at Altheimer & Gray. Mr. Fargo, Mr. Buttita, Mr. Newlin, Mr. Strye and Ms. Doyle each testified that Respondent worked diligently as a full time employee at Altheimer & Gray and Mr. Strye and Ms. Doyle both testified that they never saw Respondent prepare a tax return for his moonlighting business at the office.

The Administrator did not provide evidence of the exact amount Respondent earned for providing legal services to clients outside Altheimer & Gray, but we conclude, based on Respondent's testimony, that he earned in excess of $100,000 total from his moonlighting

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business. However, some of this income included payments for Respondent's preparation of tax returns, which was not in breach of his duty to the firm. The Administrator provided no evidence of the amount of income Respondent received for doing legal work, segregated from the amount of income Respondent received for preparing tax returns.

Respondent admitted he used the firm's address on some of the invoices he sent to the clients he represented outside of the firm. We do not find Respondent's use of Altheimer & Gray's address on some of the invoices he sent to his outside clients was deceitful because there was no clear and convincing evidence presented to establish that any client relied on the address and was deceived into thinking that Altheimer & Gray represented them. Additionally, there was no evidence presented that Altheimer & Gray considered Respondent's moonlighting clients to be clients of the firm. Because Respondent's moonlighting clients were not clients of the firm we decline to make any findings regarding whether Respondent's representation of those clients put the firm at risk for malpractice issues.

We do not find Respondent engaged in the following misconduct:

  1. conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 771 and Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct.

Respondent's misconduct did not tend to defeat the administration of justice because there was no evidence Respondent's actions detracted from the integrity of the legal system or harmed any clients. See In re Storment, 203 Ill.2d 378, 399, 786 N.E.2d 963 (2002); In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840 (1990). There was also no evidence presented that anyone outside of the legal profession was aware of Respondent's misconduct or that Respondent's actions resulted in tarnishing the reputation of the legal profession. See generally In re Sutton, 01 CH 32, M.R. 18445 (January 23, 2003) (Review Bd. Dec.).

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Count II

We find Respondent engaged in the following misconduct:

  1. conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct.

Respondent admitted that he made misrepresentations on the employment application he submitted to Holland & Knight. Respondent did not disclose any of the clients he represented in the course of his moonlighting practice in the conflicts checklist portion of the application. Respondent also prepared altered copies of his federal income tax returns that he attached to the application in which he omitted the income he received from his moonlighting clients. We find Respondent made misrepresentations by omission on the application to preserve his moonlighting practice and hide it from his potential new employer.

We do not find Respondent engaged in the following misconduct:

  1. conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 770 and Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct.

Respondent's misconduct did not tend to defeat the administration of justice because there was no evidence Respondent's actions detracted from the integrity of the legal system or harmed any clients. See In re Storment, 203 Ill.2d 378, 399, 786 N.E.2d 963 (2002); In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840 (1990). There was also no evidence presented that anyone outside of the legal profession was aware of Respondent's misconduct or that Respondent's actions resulted in tarnishing the reputation of the legal profession. See generally In re Sutton, 01 CH 32, M.R. 18445 (January 23, 2003) (Review Bd. Dec.).

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Count III

We find Respondent engaged in the following misconduct:

  1. breach of the fiduciary duties of good faith and honesty to Holland & Knight and its partners; and

  2. conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct.

Respondent had a fiduciary duty of loyalty to Holland & Knight as an attorney employed by the firm as "Senior Counsel." See Corroon & Black of Illinois, Inc. v. Magner, 145 Ill.App.3d 151, 160, 494 N.E.2d 785 (1986) (employee owes employer duty of fidelity and loyalty). Respondent's duty of loyalty existed independent of his employment agreement with Holland & Knight and the firm's policies. Respondent breached his duty of loyalty by diverting from the firm client opportunities and potential legal fees associated with his clients when he provided legal services to clients in the course of his moonlighting business without the firm's knowledge.

Respondent had a fiduciary duty to disclose his outside clients to the firm and give the firm the opportunity to accept or decline the representation of those clients. His failure to do so constituted a misrepresentation by omission. Respondent admitted that he did not disclose his moonlighting activities to the firm and potentially put the firm at risk for conflicts issues because of his failure to disclose his outside practice to the firm. Respondent also argued that the clients from his moonlighting business were not clients which Holland & Knight would have been interested in representing. There was some evidence presented that Respondent's moonlighting clients would not have been able to pay the fees charged by Holland & Knight. However, because Respondent never notified Holland & Knight about his moonlighting clients, Respondent still deprived the firm of the opportunity to represent the clients.

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We do not find Respondent breached his fiduciary duty to Holland & Knight by preparing individual tax returns for his moonlighting clients because the preparation of tax returns is primarily an accounting function and the evidence presented showed Holland & Knight did not provide that type of service to its clients. See In re Sanders, 96 CH 0633, (Review Bd. Dec. at 15) citing United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983). Mr. Gelman testified that no attorneys in the Private Wealth Services group at Holland & Knight prepare individual income tax returns for clients. Mr. Kinasz also admitted that he does not actively promote the preparation of tax returns as part of his practice, but testified that attorneys in the tax team at Holland & Knight prepare tax returns similar to the types of tax returns Respondent prepared in his moonlighting practice. However, we conclude from Mr. Kinasz's testimony that he does not regularly prepare tax returns as a part of his practice at Holland & Knight, but as a favor to a few of his longstanding clients.

We also find Respondent's management of Caulfield Realty Group, LLC and Caulfield Realty and Management Co. did not breach his fiduciary obligations to Holland & Knight. Respondent's involvement in Caulfield LLC and Caulfield Co. during the time he was at Holland & Knight was for his own investment purposes. Respondent and his partner, Mr. Gallagher, both credibly testified that Respondent did his share of the work to manage the buildings they own under Caulfield on the nights and weekends.

Mr. Schnitz testified that Respondent worked on Caulfield matters during normal business hours while he was at Holland & Knight, but there was no evidence presented to substantiate this claim. Mr. Schnitz did not work in Respondent's practice group and based his testimony solely on his review of the Caulfield documents Respondent exported from his computer at Holland & Knight. We do not find the fact that the documents were emailed from Respondent's computer at Holland & Knight established that they were created on his computer

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at Holland & Knight. In fact, the evidence showed that many documents Respondent emailed to his home computer from Holland & Knight were drafted prior to his employment at Holland & Knight. Mr. Fargo testified that he saw a Caulfield document on the printer he shared with Respondent, but we did not find his testimony established that Respondent worked on Caulfield matters to any significant degree while he was at the office.

We decline to make any findings regarding whether Respondent violated his employment agreement with Holland & Knight or any of the firm's policies because a violation of either would not in and of itself constitute a violation of Respondent's ethical obligations as an attorney. We further find the evidence showed Respondent did a majority of the work for his moonlighting practice at home and did not use the firm's resources beyond an incidental nature. Respondent credibly testified that he primarily did the work for his moonlighting business at home, but that there were limited instances when he did some of that work at Holland & Knight and used some of the firm's equipment such as the fax machine.

The testimony of Respondent's ex-wife, Ms. Maciasz-Ornoff, did not convincingly establish that Respondent did not do the majority of the work for his moonlighting business at home. Ms. Maciasz-Ornoff testified that while Respondent worked for Holland & Knight she only saw Respondent perform a small amount of work for his moonlighting business at home, but she admitted that she was not always home when he was home. Additionally, Ms. Maciasz-Ornoff testified that Respondent removed his moonlighting files from their home after she filed for divorce, which was the same time period Respondent testified that he ceased doing moonlighting work. Ms. Maciasz-Ornoff's testimony was unclear as to whether Respondent removed any of those files prior to that time period. Ms. Maciasz-Ornoff also testified that their home computer was damaged two years ago, but Respondent left Holland & Knight and ceased doing his moonlighting work approximately three years prior to the ARDC hearing.

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Although there was some evidence presented that Respondent conducted some work for his moonlighting clients while at Holland & Knight, we did not find the evidence clearly and convincingly established Respondent diverted his efforts as an attorney at Holland & Knight to his moonlighting practice. Mr. Fargo and Mr. Gelman testified that Respondent did not bill a sufficient amount of hours while he was at Holland & Knight and that he occasionally declined new assignments. However, both partners participated in Respondent's evaluation while he was at Holland & Knight and rated Respondent's performance very highly. Additionally, Mr. Gelman testified that it was typical for attorneys in Respondent's practice group at Holland & Knight to have a low number of billable hours.

The Administrator did not provide evidence of the exact amount Respondent earned for providing legal services to clients outside Holland & Knight, but we conclude, based on Respondent's testimony, that he earned in excess of $100,000 total from his moonlighting business. However, some of this income included payments for Respondent's preparation of tax returns, which was not in breach of his duty to the firm. The Administrator provided no evidence of the amount of income Respondent received for doing legal work, segregated from the amount of income Respondent received for preparing tax returns.

Respondent admitted he used the firm's address on some of the invoices he sent to the clients he represented outside of the firm. We do not find Respondent's use of Holland & Knight's address on some of the invoices he sent to his outside clients was deceitful because there was no clear and convincing evidence presented to establish that any client relied on the address and was deceived into thinking that Holland & Knight represented them. Additionally, Mr. Schnitz clearly testified that Respondent's clients from his moonlighting practice were not considered clients of Holland & Knight for any purpose. Because Respondent's moonlighting

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clients were not clients of the firm we decline to make any findings regarding whether Respondent's representation of those clients put the firm at risk for malpractice issues.

We find Respondent acted deceitfully when he exported documents from his computer at Holland & Knight to his home computer on his last day of employment with the firm. Respondent knew the firm had a procedure in place to address the removal of any documents from Respondent's computer at Holland & Knight. Respondent could have complied with the approval procedure necessary to obtain copies of his documents or informed Holland & Knight that he was not going to follow their procedure because it was too cumbersome. Instead, Respondent intentionally acted to deceive the firm when he exported the documents to his home computer in violation of the firm's procedure without advising Holland & Knight, irrespective of whether he had a legal right to those documents or not.

However, we do not find Respondent engaged in any breach of confidentiality when he exported the documents to his home computer. The evidence established the documents represented Respondent's work product and there was no evidence that any client confidences were breached by Respondent's actions.

We do not find Respondent engaged in the following misconduct:

  1. conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute in violation of Supreme Court Rule 771 and Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct.

Respondent's misconduct did not tend to defeat the administration of justice because there was no evidence Respondent's actions detracted from the integrity of the legal system or harmed any clients. See In re Storment, 203 Ill.2d 378, 399, 786 N.E.2d 963 (2002); In re Vrdolyak, 137 Ill.2d 407, 425, 560 N.E.2d 840 (1990). There was also no evidence presented that anyone outside of the legal profession was aware of Respondent's misconduct or that

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Respondent's actions resulted in tarnishing the reputation of the legal profession. See generally In re Sutton, 01 CH 32, M.R. 18445 (January 23, 2003) (Review Bd. Dec.).

RECOMMENDATION

The purpose of this disciplinary system is to protect the public, maintain the integrity of the legal system, and safeguard the administration of justice. In re Gorecki, 208 Ill.2d 350, 360, 802 N.E.2d 1194 (2003); see also In re Howard, 188 Ill.2d 423, 434, 721 N.E.2d 1126 (1999). The goal is not to punish the attorney. In re Smith, 168 Ill.2d 269, 295, 659 N.E.2d 896 (1995). In determining the proper sanction, we consider the misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526 (1991).

In mitigation, the evidence established that Respondent cooperated in the proceedings, enjoys a reputation for truth and honesty, and has not been previously disciplined. See In re Lenz, 108 Ill.2d 445, 453-5, 484 N.E.2d 1093 (1985); In re Clayter, 78 Ill.2d 276, 283, 399 N.E.2d 1318 (1980). Respondent was candid with the ARDC; he apologized for his misconduct and showed remorse. Respondent also presented strong evidence of his character; even the attorneys who testified on behalf of the Administrator spoke highly of Respondent.

In aggravation, Respondent did not engage in an isolated instance of misconduct. See In re Smith, 168 Ill.2d 269, 295-6, 659 N.E.2d 896 (1995). Respondent's moonlighting practice was an ongoing business that he conducted for a long period of time while being employed by two law firms.

The Administrator also introduced as evidence in aggravation a loan application Respondent signed in April 2007 which contained some inaccurate information regarding Respondent's income, savings and real estate properties. The Administrator argued Respondent's signing of the loan document illustrated Respondent's pattern and practice of dishonest conduct. However, because the Administrator did not establish that Respondent acted

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fraudulently by signing the loan document, we conclude that the loan document is not evidence in aggravation. See In re Storment, 203 Ill.2d 378, 400-1, 786 N.E.2d 963 (2002) (uncharged conduct can be considered in aggravation when it is similar to the current charges and established by evidence in the record).

Having considered the aggravating and mitigating factors, we now must recommend an appropriate sanction. The Administrator recommends a two year suspension and until restitution is paid to the bankruptcy trustee for Altheimer & Gray and to Holland & Knight. Respondent recommends that he be censured or suspended for a short period of time.

The Administrator cited several cases in which attorneys were disciplined for dishonest conduct which did not constitute a violation of law or a fraud on a court or any clients. In In re Lamberis, 93 Ill.2d 222, 443 N.E.2d 549 (1982) an attorney was censured for plagiarizing two published works in his thesis for a LLM degree. In In re Chandler, 161 Ill.2d 459, 641 N.E.2d 473 (1994) an attorney was suspended for three years and until further order of court for providing false information on a mortgage application and failing to inform the committee on character and fitness about the fraud she committed and the lender's ensuing foreclosure action against her during the pendency of her bar application. In In re Price, 95 CH 503, M.R. 12816 (September 24, 1996), an attorney was suspended for 60 days for seeking reimbursement for an expense he did not incur and fabricating documentation of the expense.

The Administrator also cited several cases in which attorneys were severely sanctioned for improperly reaping financial gains by defrauding a law firm. For instance, in In re Gillespie, 03 SH 111, M.R. 19139 (January 20, 2004) an attorney was suspended for two years and until he paid restitution for converting $126,000 in legal fees from his law firm. Similarly, in In re Goble, 98 CH 16, M.R. 15877 (May 25, 1999), an attorney was suspended for three years for engaging in a pattern of converting over $90,000 in funds belonging to his law firm and lying to

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his partner to conceal his theft. In In re Cresto, 02 CH 75, M.R. 20219 (June 30, 2005) an attorney was disbarred on consent for failing to charge his company, which was a client of his law firm, for over $120,000 worth of legal services provided to the company, intentionally misusing his law firm's disbursement procedure to cause the firm to pay over $82,000 in expenses for his company, using $45,000 of those payments towards his own personal loans and falsifying three separate loan documents. In In re Rice, 95 CH 210, M.R. 13391 (March 21, 1997) an attorney was disbarred for participating in an elaborate scheme organized by another attorney to defraud that attorney's employer by submitting fictitious bills for services that were not performed.

The Administrator further cited to cases in other jurisdictions where attorneys have been sanctioned for engaging in a moonlighting business. In Iowa Supreme Court Board of Professional Ethics and Conduct v. Irwin III, 679 N.W.2d 641 (2004) an attorney was suspended for two years and until further order of court for engaging in an outside law practice and intentionally concealing his diversion of attorney fees from his law firm to himself. In The Florida Bar v. Arcia, 848 So.2d 296 (2003) an attorney was suspended for three years for diverting clients from his law firm to his outside practice and stealing legal fees from the firm by deceiving clients. In In re Cupples, 979 S.W.2d 932 (1998) an attorney was suspended for six months and until further order of court for performing services for his private clients during regular business hours at his law firm and using the firm's resources for his outside practice.

Respondent cited several cases in which attorneys were sanctioned for less than six months for breaching their fiduciary duty to their law firms by improperly taking legal fees. In In re Michod, 97 CH 99, M.R. 17317 (March 22, 2001) the attorney was suspended for five months for converting $112,500 in legal fees in which he and his partners had an interest and determining unilaterally how to allocate the funds between himself and his partners. In

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determining the appropriate sanction, the Review Board considered the fact that no clients were harmed and that "this case, at its core, involves a dispute between attorneys over fees." (Review Bd. Dec. at 15).

Similarly, in In re Moll, 99 CH 21, M.R. 16726 (May 17, 2000), the attorney was suspended for three months because he improperly kept a referral fee and cost reimbursement that belonged to his law firm while he was involved in a number of disputes with the partners regarding firm management. In In re Morse, 99 CH 82, M.R. 17319 (March 22, 2001) the attorney was suspended on consent for five months, with conditions, after he personally received and used a $30,000 referral fee and a $4,059 cost reimbursement, without notifying his law firm in violation of his employment contract. In In re Longwell, 93 SH 407, M.R. 9400 (November 22, 1993) the attorney was suspended on consent for 30 days for withholding approximately $4,800 in legal fees he received from clients over a period of one and one half years in an attempt to recover compensation he thought was owed to him by the firm.

Respondent also cited two cases in which the complaints against attorneys were dismissed where the charges of misconduct were intertwined with evidence of a dispute between members of a law firm. In re McDonough, 04 CH 72 (Hearing Bd. Dec. May 10, 2006) (Complaint Dismissed); In re Lefkovitz, 05 CH 14 (Hearing Bd. Dec. September 8, 2006) (Complaint Dismissed). Respondent further cited a Florida case in which an attorney was suspended for 30 days for continuing to conduct an outside practice in violation of a firm policy which prohibited the representation of any clients outside of his employment at the firm. The attorney earned approximately $18,500 in legal fees from representing outside clients and furthered his own financial goals at the firm's expense by using the firm's resources to provide services to his outside clients. The attorney also acted dishonestly to conceal his outside practice. The Florida Bar v. Kossow, 912 So.2d 544 (2005).

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We agree with the Administrator that Respondent's dishonest conduct warrants discipline and find In re Lamberis, 93 Ill.2d 222, 443 N.E.2d 549 (1982) particularly applicable to this case. The Court provided in Lamberis that attorneys are not required to "conform to conventional notions of morality in all questions of conscience and personal life," but that discipline should be imposed when an attorney's dishonesty shows a disregard for values that are fundamental to the legal profession. Id. at 227. The attorney in Lamberis engaged in deceitful misconduct to obtain an advanced law degree which would have improved his employment prospects and advancement in the legal profession. Id. at 228.

Similarly, Respondent engaged in deceitful conduct over a long period of time to preserve his moonlighting business by failing to disclose his outside practice to Altheimer & Gray and Holland & Knight, making misrepresentations on his employment application to Holland & Knight and submitting fabricated copies of his federal income tax returns as part of that application. Respondent's dishonest conduct was done to allow him to earn income from the practice of law in breach of his duties to his law firms and it displayed a lack of honesty that reflects adversely on his fitness to practice law. Respondent also breached his fiduciary duty to Altheimer & Gray and Holland & Knight by diverting the opportunity from the firms to provide legal services to his moonlighting clients.

We disagree with the Administrator that Respondent's misconduct warrants a two year suspension. Generally, the cases cited by the Administrator involved misconduct that was far more egregious than the misconduct in this case. Respondent did not engage in a fraudulent scheme to convert legal fees or steal clients from either Altheimer & Gray or Holland & Knight and he did not materially conduct his moonlighting business during regular business hours out of either firm's office.

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We find the cases cited by Respondent are more closely aligned with the present case and provide better guidance for our recommendation because they involve disputes between attorneys over the inter-workings of a law firm rather than grossly fraudulent misconduct to steal law firm funds or clients. We note that in Michod, 97 CH 99, Morse, 99 CH 82 and Moll, 99 CH 21, the attorneys' misconduct involved one instance of breaching their fiduciary duty to their law firms by misappropriating legal fees whereas Respondent engaged in misconduct over a period of several years by concealing his moonlighting business from two law firms. However, unlike the attorneys in Michod, Morse and Moll, Respondent did not convert any funds from Altheimer & Gray or Holland & Knight. Additionally, Respondent has no prior discipline and has maintained a reputation for truth and honesty. Further, because no actual harm resulted to any clients, we do not believe Respondent presents a threat to the safety of the public or that his actions jeopardized the integrity of the legal profession. We conclude Respondent's misconduct warrants a four month suspension.

Lastly, the Administrator suggests Respondent make restitution to the bankruptcy trustee for Altheimer & Gray and to Holland & Knight for the profits he earned from his moonlighting business during the time he was at each law firm. Before restitution can be required there must be some basis for restitution, usually either an improper benefit to the attorney or a loss to some victim. See In re Alexander, 128 Ill.2d 524, 536, 539 N.E.2d 1260 (1989). Although Respondent clearly benefited financially from his moonlighting practice there was no evidence to establish what portion of the fees he received were for legal services or to what extent, if any, either law firm was financially harmed by Respondent's diversion of potential client representation opportunities. Accordingly, we have no basis upon which to make a recommendation of restitution.

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Considering the nature of the Respondent's misconduct, the evidence in mitigation, and the evidence in aggravation, this Panel recommends that Respondent be suspended for four months.

Date Entered:

Henry T. Kelly, Chair

Harvey N. Levin, concurring in part and dissenting in part:

I agree with the majority's findings in Count III, except that I did not find Respondent acted deceitfully in violation of 8.4(a)(4) of the Illinois Rules of Professional Conduct when he exported documents from his computer at Holland & Knight to his home computer on his last day of employment with Holland & Knight. Respondent's failure to comply with the firm's approval procedure to obtain copies of his documents from his computer at Holland & Knight was a dispute between Respondent and his employer over internal procedures on the method of copying documents. No client confidentiality was violated. He was an attorney who represented clients and had copies of their documents. Whether he had the documents on the Holland & Knight computer or his home computer, the confidentiality requirement was satisfied.

Cheryl M. Kneubuehl, concurring in part and dissenting in part:

I agree with the majority's findings in Count I except that I find Respondent's use of Altheimer & Gray's address on some of the invoices he sent to his outside clients was deceitful and violated his fiduciary duty to the firm because he made a unilateral decision as to whether there was a conflict with the firm and his outside clients. Altheimer & Gray never had an

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opportunity to determine whether there was a conflict or if it was liable for malpractice. I did not find the evidence showed Respondent did a majority of his moonlighting work at home.

I agree with the majority's findings in Count II except that I find Respondent's blatant falsification of the employment application he submitted to Holland & Knight and his alteration of his federal income tax returns was extremely egregious. Respondent acted with a willful intent to deceive and made a misrepresentation by omission by altering the tax returns. Additionally, I find his conduct violated Supreme Court Rule 770 because his fraudulent actions cast a bad name on the entire profession.

I agree with the majority's findings in Count III except that I find Respondent's use of Holland & Knight's address on some of the invoices he sent to his outside clients was deceitful and violated his fiduciary duty to the firm because he made a unilateral decision as to whether there was a conflict with the firm and his outside clients. Holland & Knight never had an opportunity to determine whether there was a conflict or if it was liable for malpractice. I did not find the evidence showed Respondent did a majority of his moonlighting work at home. Ms. Maciasz-Ornoff testified that she only saw Respondent do a small amount of work for his moonlighting business at home while he was at Holland & Knight and that Respondent removed the files from his moonlighting business from their home. Additionally, the fact that Respondent had documents for his moonlighting business on his computer at Holland & Knight constitutes usage of the firm's resources for his moonlighting business.

I disagree with the majority's recommendation for sanction. In aggravation I was particularly offended at Respondent's cavalier attitude towards his signature on his employment application and loan application. Respondent did not take the effect of his signature seriously in representing that the information provided in the documents was accurate. The extensive nature of Respondent's moonlighting business was also aggravating and it was not clear what the exact

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impetus was for him to stop engaging in it. Respondent repeatedly engaged in deceitful behavior over a long period of time with not one, but two law firms. Respondent testified that he ceased doing moonlighting work when his ex-wife filed for divorce because of the potential harm it had caused, but there was no evidence he stopped engaging in his outside practice because he thought it was wrong. I did not find any significant factors in mitigation. The fact that Respondent cooperated was not sufficient to mitigate his misconduct. I recommend Respondent be suspended for one year.