Filed July 14, 2009
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
HEATHER ANNE BURNS,
Commission No. 06 SH 91
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on January 6 and 7, 2009, before a panel consisting of Mark L. Karasik, Chair; Charles E. Reiter, III and Edward J. Miller. Peter Rotskoff appeared as Counsel for the Administrator. George Collins and Theresa Gronkiewicz appeared as Counsel for Respondent. Respondent was also present.
On December 18, 2006, the Administrator filed a one count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged Respondent engaged in overreaching and improper financial transactions with a client. Respondent filed an Answer to the Complaint on February 28, 2007, in which she admitted most of the factual allegations and denied all the allegations of misconduct.
The Administrator presented the testimony of Jonathan Littman, M.D., Ann Klosterman, Catherine K. Ratiner, Carol D. Vermillion and Respondent and Exhibits 1-9, 12, 13. Respondent presented her testimony and the testimony of Sandra Burns, Barbara Disko, Melanie Ferrand, Donovan Pepper, Wendy Walters, Thora Nurse and Exhibits 1-11, 13-14. The testimony of the
witnesses, the Exhibits, and the admitted allegations of the Complaint established the following facts.
From May 1995 to July 1999, Respondent was employed as a salaried associate at the Law Offices of Sandra K. Burns, which is her mother's law office. In 1997, Respondent and Sandra met with Mary Vermillion at her apartment in Chicago, Illinois. Mary had never married, had no children and had no relatives living in the Chicago area. After meeting with Mary in 1997, Sandra drafted a will and living trust agreement for Mary, which Mary executed. Beginning in 1997, Respondent represented Mary in matters related to her financial affairs and the funding of her living trust.
Mary had knee replacement surgery on both knees in 1997 and never regained full strength in her knees and used a wheelchair to get around. In December 1997, Mary moved from her apartment in Chicago to Holley Court, a retirement apartment complex for senior citizens in Oak Park, Illinois. Mary used the services of nurse aides, including Thora Nurse and Pearl Jackson while she lived at Holley Court.
In 1997, Respondent filed for Chapter 7 bankruptcy protection and she was discharged from bankruptcy in January 12, 1999. Respondent had s student loans which were not dischargeable in the bankruptcy proceeding.
On January 2, 1998, Mary executed a codicil to her 1997 will, changing the executor of the will from Mary's friend, Gwen Palermini, to Respondent. Mary also executed an amended trust agreement making Respondent second successor trustee. Sandra drafted both the codicil and the amendment to the trust agreement. On August 9, 1999, Mary executed a second
amendment to the trust agreement making Respondent successor trustee, in the event that Mary was unable to act as trustee.
On August 9, 1999, Respondent prepared a check on Mary's bank account in the amount of $10,000, made payable to Respondent and Mary signed the check. (Adm. Ex. 1). On September 14, 1999, Respondent prepared a check on Mary's bank account in the amount of $20,000, made payable to Respondent and Mary signed the check. . (Adm. Ex. 2). Respondent negotiated both checks and used the proceeds for her own purposes.
Mary was hospitalized from January 12, 2000 to January 19, 2000. She was diagnosed with cancer and was told she only had a short time to live. Mary returned home for hospice care on January 19, 2000, and she died on January 29, 2000.
On January 20, 2000, Respondent prepared a check on Mary's bank account in the amount of $10,000, made payable to Andrew Burns, Respondent's son, and Mary signed the check. (Adm. Ex. 3). Respondent negotiated the check and deposited the funds into an account for Andrew. On January 20, 2000, Respondent prepared and signed a check on Mary's bank account in the amount of $10,000, made payable to Orlando Williams, who lived with Respondent and whom she treated as a son. (Adm. Ex. 5). Orlando Williams negotiated the check and used the proceeds for his own purposes. On January 20, 2000, Respondent prepared a check from Mary's trust account in the amount of $40,000 made payable to the United States Department of Education and Mary signed the check. (Adm. Ex. 4). Respondent used the proceeds of that check to pay off her student loans.
After Mary died, Mary's half brother, Robert Vermillion, and his wife, Carol Vermillion, retained counsel to help them review the matters related to Mary's estate. On March 29, 2000, Respondent filed for probate and was appointed the executor of Mary's estate. Respondent
retained Sandra to do the legal work on Mary's estate. On June 29, 2001, Sandra transferred $90,000 into the bank account for Mary's estate as repayment for the five checks Respondent, Andrew Burns and Orlando Williams received from Mary between August 1999 and January 2000.
Robert, through counsel, requested a review of all records related to Mary's estate. On August 6, 2001, Respondent resigned as the executor of Mary's estate. On January 3, 2002, Robert was appointed as the independent administrator of Mary's estate and following the death of Robert, Carol was appointed as the administrator.
Jonathan W. Littman
Jonathan W. Littman is a family practice physician and was previously the medical director at Holley Court from November 1993 to December 2007. (Tr. 25-7; Adm. Ex. 9). Holley Court offers mild assistance for residents with memory or physical problems. (Tr. 27). Dr. Littman was Mary's physician from January 1998 until her death in January 2000. (Tr. 27).
In August 1998 Dr. Littman made a note in Mary's medical records that she was having some deficits in retaining or retrieving items in discussing facts with him. (Tr. 30; Adm. Ex. 8 at 56-7). On October 13, 1998, Dr. Littman made a note in Mary's medical records that her memory was impaired and that she had been confused in the morning on the previous day. (Tr. 31; Adm. Ex. 8 at 52). Dr. Littman testified that in that instance Mary's confusion was corrected when he prescribed her medication to restore the oxygen level in her blood. (Tr. 52-60).
Mary wrote a note to a nurse who assisted Dr. Littman in October 1998 stating that she believed her eye surgery should be canceled, that she was not responsive to "heretofore understandable aspects" of her life, and that it took her four hours to compose the note, which was relatively short. (Tr. 32-3, 35; Adm. Ex. 8 at 49). Dr. Littman testified that the note showed
Mary was able to communicate well, but that she had some lack of confidence in her own abilities. (Tr. 32; Adm. Ex. 8 at 49). Dr. Littman further testified that Mary wrote other notes to the nurse that showed Mary's memory was accurate and that she engaged in planning, organization and executive thinking. (Tr. 63-7).
In August 1999 Dr. Littman made a note in Mary's medical records quoting his previous diagnoses of mild early dementia, which is the beginning stages of loss of intellectual function. (Tr. 36-7, 340; Adm. Ex. 7 at 2; Adm. Ex. 6 at 1). Dr. Littman testified that mild early dementia is not severe enough to interfere consistently or significantly with someone's day to day functioning. (Tr. 37). Mary signed patient consent forms in August and September 1999 and hospital procedure would not allow the signing of a consent form by a person who suffered from dementia. (Tr. 71; Adm. Ex. 10 at 13-17). Mary also signed a form that said was not interested in organ donation and her discharge instructions during that same time period. (Tr. 74-75; Adm. Ex. 10 at 4, 11).
Dr. Littman testified that Mary was lucid and able to make sense of the world most of the time, but that there were periods of time when she experienced memory lapses. (Tr. 37-8, 40-1). Dr. Littman testified that there were conflicting notes regarding Mary's mental status in her medical records which was not unusual for an elderly patient, because elderly patients are more likely to have short-term memory problems that are not consistently present. (Tr. 49-53). Dr. Littman testified that Mary expressed herself reasonably well and that he never determined Mary was incompetent. (Tr. 55, 83).
In January 2000, Dr. Littman made an entry in Mary's medical records which indicated that she knew her name, but thought the year was 2010. (Tr. 42-4, 48-9; Adm. Ex. 6 at 1-2, 5). Mary signed consent forms, insurance information and discharge instructions between January
17 and 19, 2000, which showed that the hospital staff thought she was mentally competent. (Tr. 76-80; Adm. Ex. 9 at 30-33). Mary knew and was informed while she was in the hospital in January 2000 that she had terminal cancer and was going to hospice care. (Tr. 80). Mary made the decision not to go through chemotherapy. (Tr. 81).
When Mary was discharged she was taking a variety of medications including Oxycontin which is a narcotic medication that could interfere with a person's independent judgment. (Tr. 91-2). Dr. Littman did not see Mary between January 19 and 29, 2000, and did not know whether she was mentally competent during that period of time. (Tr. 53, 82).
Ann Klosterman resides in Lakewood, Colorado and is Mary's cousin. (Tr. 99). Ms. Klosterman's mother and Mary were close because Mary was her mother's favorite niece. (Tr. 99, 115).
In January 2000, Respondent called Ms. Klosterman and told her Mary was very ill with cancer and did not have any relatives with her. (Tr. 100). Ms. Klosterman came to see Mary on January 24, 2000, and stayed at Mary's apartment until she died. (Tr. 100-1). Ms. Klosterman never saw Mary get out of bed, but Mary recognized Ms. Klosterman and would speak to her for short periods of time about Ms. Klosterman's parents. (Tr. 101). Mary was cognizant for short periods of time and then she would drift off to sleep. (Tr. 101).
Ms. Klosterman only remembered one time when Respondent came to visit Mary between January 24 and 29, 2000, and during that visit Respondent introduced herself to Ms. Klosterman. (Tr. 102, 105, 110-11). Ms. Klosterman testified Respondent might have visited Mary more times than she recalled. (Tr. 111-12). Mary never said anything to Ms. Klosterman about making any gifts to Respondent or Respondent's family members. (Tr. 102).
Ms. Klosterman was aware Respondent regarded Mary as a good friend. (Tr. 105). Ms. Klosterman wrote a note to Respondent dated February 7, 2000, which stated that she was wondering how Respondent was doing because Ms. Klosterman knew Mary's death would be difficult for Respondent. (Tr. 105; Resp. Ex. 6). Ms. Klosterman further stated that she hoped Respondent was able to take some time off before she packed up Mary's apartment. (Tr. 105; Resp. Ex. 6).
Ms. Klosterman's letter to Respondent also thanked herfor everything she did for Mary and stated " [y]ou went to see her so often." (Tr. 106; Resp. Ex. 6). The letter also thanked Respondent for "being there" for Ms. Klosterman and her sister. (Tr. 106; Resp. Ex. 6). Ms. Klosterman enclosed her travel receipts with the letter because Respondent told Ms. Klosterman that she would be reimbursed for her travel expenses if she would come to see Mary. (Tr. 106-7). Ms. Klosterman recalled receiving a check which reimbursed her for her travel expenses. (Tr. 110). Ms. Klosterman would have visited Mary even if her travel expenses were not reimbursed because she did not want Mary to die alone. (Tr. 115).
Catherine K. Ratiner
Catherine K. Ratiner resides in Silver Springs, Maryland. (Tr. 117). Mary is her cousin. and Ms. Ratiner learned Mary was ill when another cousin called her. (Tr. 118). Ms. Ratiner visited Mary from January 26 to January 30, 2000 and stayed at her apartment during that time. (Tr. 118). Mary recognized Ms. Ratiner, but she was bedridden, very weak and slept a lot. (Tr. 119-20). There were times when Mary and Ms. Rainer had short conversations and Mary would "crack a couple of jokes." (Tr. 119, 124). The "wisecracks" Mary made were very consistent with her personality because she was very witty. (Tr. 125).
Two nurse's aides were present during the time Ms. Ratiner stayed at Mary's apartment. (Tr. 120). Ms. Ratiner also recalled that Respondent was present once or twice and Ms. Ratiner spoke to Respondent. (Tr. 120). Mary never spoke to Ms. Ratiner about making any gifts to Respondent or Respondent's family members. (Tr. 120-1). Ms. Klosterman was not with Ms. Ratiner the whole time she was at Mary's apartment because Ms. Klosterman had to leave before Mary died. (Tr. 126).
Ms. Ratiner wrote Respondent a letter dated February 11, 2000, expressing her gratitude to Respondent for her "care and concern for Mary" and her graciousness to Ms. Klosterman and herself. (Tr. 122-3; Resp. Ex. 7). Ms. Ratiner also expressed in the letter to Respondent that it was comforting to find the person managing Mary's affairs was a "dedicated friend" and that she hoped the "strain and impact" was "easing off" and that Respondent was "doing ok." (Tr. 122-3; Resp. Ex. 7). Ms. Ratiner enclosed her plane fare and cab receipts with the letter and was reimbursed for her expenses. (Tr. 122-3, 125-6; Resp. Ex. 7, 14). Ms. Ratiner did not know her travel expenses would be reimbursed when she made the arrangements to visit Mary. (Tr. 122; Resp. Ex. 7).
Carol D. Vermillion
Carol D. Vermillion resides in Pineville, Louisiana. (Tr. 127). Carol's late husband Robert Vermillion was Mary's brother. (Tr. 127-8). Carol received a phone call from Respondent on January 21, 2000. (Tr. 132). Respondent spoke to both Robert and Carol at that time and told them Mary was ill and would like to see them. (Tr. 132-3). Neither Carol nor Robert went to see Mary before she died. (Tr. 133).
Carol came into possession of Mary's diaries when her daughter gave them to her and she identified Mary's handwriting in the diaries. (Tr. 129-30; Adm. Ex. 11). Carol read the diaries
and sent them to the ARDC. (Tr. 130; Adm. Ex. 11). Mary recorded the fact that she was sometimes confused in her diary entries from May 1997 through June 1999. (Adm. Ex. 11).
Sandra Burns has been an attorney since 1975. (Tr. 157). The main four areas of her law practice are probate, estate, domestic relations and real estate. (Tr. 157). Respondent is Sandra's daughter and Respondent was an associate at Sandra's law firm when Sandra began representing Mary. (Tr. 163-4). Initially Respondent had more contact with Mary than Sandra because Respondent did the backup work on the file which included collecting assets, writing letters and getting information from Mary. (Tr. 163-4).
Respondent and Mary "really hit it off" and would go to lunch. (Tr. 164). Respondent went to Mary's apartment in Chicago and later to Mary's apartment in Holley Court to help her out. (Tr. 164, 168). Respondent spent time with Mary in both a professional and personal capacity. (Tr. 164).
Sandra and Mary also became social acquaintances during the course of Sandra's representation of Mary. (Tr. 161). Mary was an avid reader and listened to National Public Radio "all the time." (Tr. 163). Mary enjoyed discussing politics and other important issues. (Tr. 163). Sandra also testified that Mary was a "fun" person to be around because she was very witty and loved to tell jokes. (Tr. 162-3).
Sandra, Mary and Respondent were also all members of a worldwide organization called Zonta, but they did not belong to the same Zonta group until Mary moved to Holley Court and transferred to Sandra and Respondent's group in Oak Park. (Tr. 161-2). Both Sandra and Respondent picked Mary up and took her to the Zonta group meetings with them. (Tr. 162).
Respondent left Sandra's law practice in July 1999 and took Mary's file with her at Mary's request. (Tr. 166-7). Sandra continued to see Mary once a month at Zonta meetings between July 1999 and January 2000, because they sat at the same table. (Tr. 167). Mary's affect continued to be very witty. (Tr. 167). Mary and Respondent were very close in the fall of 1999 and had more contact with each other than Sandra had with either of them. (Tr. 168-9).
Mary called Sandra the day she got home from the hospital in January 2000 because she wanted Sandra to prepare a health care power of attorney and a property power of attorney giving Respondent the power to act on Mary's behalf. (Tr. 169, 171). Mary told Sandra that she had cancer and did not have very long to live. (Tr. 170).
Sandra prepared the documents and brought them to Mary's apartment on January 19 or 20, 2000, for Mary to review and sign. (Tr. 170). Mary was telling jokes and in a happy mood that day. (Tr. 171). Mary expressed to Sandra several times how much she appreciated Respondent's help and that she knew Respondent was Sandra's daughter, but Respondent had become a daughter to her too. (Tr. 171). Sandra did not notice any diminishment in Mary's intellect. (Tr. 172). Sandra testified that she thought she was at Mary's apartment for over a half hour because she read the documents to Mary, answered Mary's questions and then Mary signed the documents. (Tr. 172). Sandra did not see Mary again. (Tr. 174).
In the course of her practice Sandra has petitioned to have a guardian appointed for someone who is incompetent. (Tr. 172). Sandra testified that Mary was absolutely not incompetent on the last day she saw her. (Tr. 173). Mary changed the beneficiaries of her living trust several times after Sandra began representing her and Respondent was not a beneficiary of her living trust or a beneficiary under Mary's will when Mary died. (Tr. 174-6; Resp. Exs. 1-3).
Sandra represented Respondent as the executor and trustee of Mary's estate. (Tr. 176). While Sandra was preparing a date of death accounting for Mary's estate in June 2001 she discovered the $40,000 check made out to the U.S. Department of Education because it had cleared after the date of Mary's death. (Tr. 177-8). Sandra asked Respondent what it was and Respondent told Sandra that the check was a gift from Mary to pay off Respondent's student loans. (Tr. 177). Respondent also told Sandra about the other checks totaling $50,000 that Mary had given Respondent, Andrew Burns and Orlando Williams. (Tr. 177).
Respondent had not told Sandra about the checks previously because she did not realize she had done something wrong by accepting the gifts and because Sandra and Respondent were not close during the time period Respondent received the checks from Mary. (Tr. 193-4). Mary also did not mention any of the checks to Sandra. (Tr. 195-6).
Sandra told Respondent that it would be appropriate if Mary's estate was reimbursed for the entire $90,000 in gifts Respondent, Andrew Burns and Orlando Williams had received from Mary. (Tr. 179-80). Sandra's stepmother lent her $90,000 as a secured payment against Respondent's house and that money was paid to Mary's estate. (Tr. 181). The $90,000 was repaid to Sandra's stepmother out of the proceeds from the sale of Respondent's house. (Tr. 189-91).
Sandra made a disclosure to Robert and Carol Vermillion about the reimbursement of the $90,000 to Mary's estate in July 2001. (Tr. 182, 186-7; Adm. Ex. 13 at 23). Respondent voluntarily resigned as the executor and trustee of Mary's estate and Sandra also voluntarily resigned as attorney for the executor. (Tr. 183). After Mary's estate was closed in August 2005 Carol Vermillion made a complaint to the ARDC. (Tr. 186; Adm. Ex. 113 at 25).
Thora Nurse has been a certified nurse assistant for 20 years. (Tr. 354). Ms. Nurse was assigned to Mary at Holley Court and she worked for Mary for approximately two years before Mary passed away. (Tr. 356). Ms. Nurse met Respondent when she started working for Mary because Respondent would visit Mary when Mary called her. (Tr. 362). Sometimes Mary would call Respondent more than once before Respondent would visit her, but Respondent was working and would come over when she got a chance to. (Tr. 375).
Ms. Nurse helped Mary bathe and dress and sometimes brought or prepared Mary's meals. (Tr. 356). Mary would sit in a particular chair she had by the window and read during the day. (Tr. 356). Sometimes Ms. Nurse would sit with her or in another room if Mary was smoking. (Tr. 356-7). When Mary needed new books to read Ms. Nurse would take her to the library. (Tr. 357-8).
Ms. Nurse and Mary talked all the time and Mary told Ms. Nurse a lot of stories about being a professor and about her family. (Tr. 358-59). The stories Mary told Ms. Nurse made sense. (Tr. 360-61). Mary was never confused, but sometimes she was forgetful and would show Ms. Nurse the same pictures twice or repeat the same story. (Tr. 360, 368).
Ms. Nurse knew Mary had a brother and cousins, but she never saw any of Mary's family members until the week or two before she died. (Tr. 363). Mary did not receive regular telephone calls from any of her relatives. (Tr. 363-4). Ms. Nurse brought her children and grandchildren to see Mary and Mary was very fond of her grandchildren. (Tr. 359). Mary would ask Ms. Nurse to bring her grandchildren to visit and would play with them while they were visiting her. (Tr. 359-60).
Ms. Nurse called an ambulance to take Mary to the hospital because Mary was in a lot of pain. (Tr. 361). When Ms. Nurse went to the hospital to visit Mary, Respondent was also at the hospital visiting Mary. (Tr. 362-63). Mary told Ms. Nurse she had terminal cancer before she left the hospital. (Tr. 365-67). Ms. Nurse went to the hospital to bring Mary home in an ambulance and Respondent also came home from the hospital with Mary. (Tr. 366-67). Respondent was at Mary's apartment most of the time after Mary came home from the hospital and until Mary died. (Tr. 367).
Mary was a smart and witty lady who made jokes all the time and she continued to make jokes when she came home from the hospital. (Tr. 366). Mary's two cousins came and stayed until Mary died. (Tr. 367). The two cousins spoke to Mary and to Ms. Nurse and no one said Mary was crazy, incompetent or demented. (Tr. 367-68).
Mary could talk and was coherent the day she came home from the hospital and the day after she came home from the hospital. (Tr. 372). Respondent was at Mary's apartment the day after Mary came home from the hospital. (Tr. 372). The medication Mary took the first few days she was home did not affect Mary's ability to think or communicate. (Tr. 372-73). Three of four days before Mary died she did not talk much and slept most of the time because of all the medications she was given. (Tr. 372).
Mary made gifts to Ms. Nurse and Ms. Nurse's two grandchildren who had visited Mary. (Tr. 368-69). Mary did not tell Ms. Nurse that she was going to give her and her grandchildren those gifts. (Tr. 375). The check to one of her grandchildren was signed by the grandchild's father and went through the bank on January 27, 2000. (Tr. 369-70). Respondent gave Ms. Nurse the check for herself and the checks for her two grandchildren at the same time, but Ms. Nurse did not recall what date Respondent gave her those checks. (Tr. 370-71, 376). Ms. Nurse
recalled that she thanked Mary for the checks and told Mary that she did not expect to receive a gift from her and Mary told her that Ms. Nurse and her family had been very kind to her. (Tr. 378).
Respondent got pregnant and gave birth to her son, Andrew Burns, during her junior and senior years of high school. (Tr. 198-99). Respondent was able to graduate from high school with her class and went on to receive an undergraduate degree, in political science from Roosevelt University and a law degree from Loyola University Chicago School of Law. (Tr. 200). Respondent was admitted to practice law in Illinois in May 1995 and began working as an associate at Sandra's law firm where she primarily practiced in the area of domestic relations. (Tr. 201-2).
Mary had lived with a close friend named Clara Louise for most of her life and Clara Louise had just passed away the first time Respondent met Mary in 1997. (Tr. 205). Mary was very witty, intellectual and well-read and Respondent viewed Mary as her intellectual superior and as the kind of person she aspires to be. (Tr. 206, 213). Mary had a PhD in psychology and was retired from her position as a psychology professor at the Illinois Institute of Technology ("IIT"). (Tr. 206-7). Mary's written work had been published including some poetry she wrote. (Tr. 207). Mary read the news paper and listened to National Public Radio every day and liked to discuss politics and current events. (Tr. 211-12).
Respondent began representing Mary soon after they met in 1997 and continued to represent her until Mary's death in January 2000. (Tr. 141, 208). Respondent billed Mary for all the legal work she did for her. (Tr. 142-43). Respondent made some amendments to Mary's estate planning documents and assisted Mary with putting all of her assets into her living trust.
(Tr. 142). Respondent also assisted Mary with understanding the Medicare documents she received. (Tr. 227-8).
Respondent and Mary went over all of Mary's bills together and their regular practice was for Respondent to write a check from Mary's account for each bill and for Mary to sign each check and record the amount in her check register. (Tr. 227-30, 337). Mary also made a notation on each bill indicating the date that it was paid. (Tr. 227-30, 337; Resp. Ex. 4).
Mary was on a first name basis with her broker at Merrill Lynch and his two assistants whom she dealt with directly. (Tr. 381-84; Adm. Ex. 11 at 60, 80-1). Mary had invested in the stock market for decades and was a very sophisticated and knowledgeable investor. (Tr. 345) Respondent knew Mary's estate was worth approximately 1.5 million dollars. (Tr. 143).
While she was working at Sandra's law firm Respondent visited Mary on Sundays and sometimes met Mary for lunch during the week. (Tr. 209). Some of Respondent's visits to Mary were social and some were work related. (Tr. 209). When Mary moved to Holley Court in Oak Park Respondent visited her more frequently because she was a short drive from Respondent's house. (Tr. 209). Occasionally, Respondent and Mary would go to a fancy Italian restaurant in Oak Park for martinis because Mary enjoyed a good martini. (Tr. 209-11).
Respondent's relationship with her mother deteriorated while she was working at Sandra's law firm and Respondent did not like practicing in the area of domestic relations. (Tr. 203). Respondent was miserable when she left Sandra's law office and she felt physically alone except for her relationship with Mary. (Tr. 213-15). Respondent spoke with Mary in depth about her decision to leave her mother's law office and Mary was a big source of strength for Respondent. (Tr. 217) Mary gave Respondent a lot of input about her decision to leave and shared her own experiences with Respondent regarding her complicated relationship with her
father. (Tr. 217-18). Mary became the central person in Respondent's life during that period of time. (Tr. 215).
In June or July 1999 Mary and Respondent discussed the fact that Mary wanted to change the beneficiaries of her trust because she had a falling out with one of her friends who was a beneficiary. (Tr. 219-20). Mary wanted to make Respondent a beneficiary of her trust instead. (Tr. 220). Respondent told Mary she could not be a beneficiary of her trust because she was her attorney and suggested she make IIT a beneficiary instead. (Tr. 220-21).
On August 9, 1999, Mary signed an amendment to her trust at Holly Court in front of a notary which made IIT a beneficiary of her trust and made other bequests. (Tr. 221-22, 332-33; Adm. Ex. 3). That same day Mary told Respondent she had decided to make a gift of $10,000 to her. (Tr. 221-22, 334). Respondent wrote out the check to herself and Mary signed it while they were sitting in Mary's living room on August 9, 1999, around the same time Mary signed the amendment to her trust. (Tr. 222-23, 334-35). Respondent was overwhelmed by the generosity of the gift and began crying. (Tr. 223). The validity of the bequests contained in the amendment to her trust Mary signed on August 9, 1999, has never been questioned and Mary was entirely competent when she signed both the amendment to the trust and the check made out to Respondent. (Tr. 333-34).
Respondent did not have access to a car after she left Sandra's law firm which was difficult for her because she was looking for a job. (Tr. 224). Respondent would walk from her home to Holley Court to visit Mary which took approximately 15 or 20 minutes. (Tr. 223). In September 1999 Mary told Respondent she wished that she still had the car she owned before her knee surgery because Respondent could have had that car. (Tr. 224). The next time Respondent saw Mary she gave Respondent $20,000. (Tr. 224). Respondent testified that she thought Mary
realized she needed a "boost" and gave her the money to get a car so that Respondent could get back to work and feel more productive. (Tr. 224). Respondent also used the car to run errands for Mary and bought a Ford Explorer, which was an easy car for Mary to get in and out of with her wheelchair. (Tr. 224-25).
During the fall of 1999 Mary retained her humor and her interest in the people around her and corresponded with people, talked to people on the phone and continued to dine regularly with a group of women at Holley Court. (Tr. 226). Before Mary went into the hospital in January 2000 Respondent saw her every week or every other week. (Tr. 226).
Respondent went to visit Mary several times while she was in the hospital in January 2000. (Tr. 227). While she was in the hospital Mary called Respondent and had her doctor explain to Respondent that Mary's had stage four cancer and had chosen to go to hospice care rather than receive treatment. (Tr. 231). Respondent was devastated and went to see Mary right after she received the call and Mary was being very witty, cracking jokes and trying to make it easier on everyone. (Tr. 231-32). Mary continued to make jokes and use her wit to make other people comfortable while she was in hospice care. (Tr. 248). Respondent has no doubt that Mary was fully competent until her death. (Tr. 256).
When Mary came home from the hospital Respondent discussed notifying Mary's relatives with her. (Tr. 232). Robert Vermillion was Mary's half brother and Mary had a complicated relationship with him. (Tr. 218, 249-50). Throughout the time Respondent knew Mary she expressed that she was not very fond of Robert and his wife Carol, but Mary would call Robert on his birthday and they exchanged Christmas cards. (Tr. 249-51). Robert was Mary's only immediate family and Mary bequeathed the majority of her estate to Robert and Carol. (Tr. 249-51).
Respondent testified and the phone records indicate that on January 21, 2000, Respondent called Robert and Carol at 6:30 p.m. from Mary's apartment and spoke to both of them. (Tr. 233; Resp. Ex. 5 at 3). Respondent told Robert that Mary's cancer was terminal and that she had very little time left and would like to see him. (Tr. 234). Respondent asked Robert to please come see Mary and told Robert that his travel expenses would be reimbursed. (Tr. 234). Robert told Respondent he could not come because he could not fit it into his schedule. (Tr. 234). Respondent then pleaded with Carol to convince Robert to come visit Mary because it would mean so much to her. (Tr. 234). Respondent also asked Robert and Carol to please call Mary and talk to her if they could not visit, but they never called Mary before she died. (Tr. 235).
Respondent testified and the phone records indicate that Respondent also called Mary's cousins Joan Crawford and Will Decano from Mary's apartment on the evening of January 21, 2000, to tell them that Mary was dying and offered to reimburse the travel expenses of any family member that could visit Mary. (Tr. 236-7; Resp. Ex. 5 at 3). Ms. Crawford and Mr. Decano could not physically come because they were more elderly than Mary but notified their other cousins and Ms. Klosterman and Ms. Ratiner both called Respondent directly. (Tr. 237). Initially, Ms. Klosterman and Ms. Ratiner were planning on coming at the end of January, but Respondent convinced them to come immediately and assured them their travel expenses would be reimbursed. (Tr. 237-8).
Mary expressed a desire to make gifts to Respondent, Respondent's son Andrew, Orlando Williams and Mary's nurse aides while she was still in the hospital in January 2000. (Tr. 239). Respondent told Mary to take some time to think about it and to not rush in to giving the gifts. (Tr. 239). Mary came home from the hospital on January 19, 2000, and it was a busy day because the hospice workers were there for several hours setting up and explaining hospice to
Mary. (Tr. 240). The next day, January 20, 2000, Mary was insistent that she and Respondent work out the gifts. (Tr. 240).
Mary gave Respondent instructions about the gifts she wanted to give and together they went through Mary's financial information and decided which of Mary's accounts to use for each gift. (Tr. 242, 323). Mary and Respondent prepared the checks for Respondent, Andrew, Orlando, Thora Nurse, Thora Nurse's grandchildren and Pearl Jackson on January 20, 2000. (Tr. 233-34). Respondent signed the check for Orlando and testified that she was not sure whether she was a signatory on the account the check for Orlando was drawn on before or after Mary's death. (Tr. 350-3).
Ms. Nurse received a check for $10,000, Ms. Jackson received a check for $2,500 and both of Ms. Nurse's grandchildren received a check for $1,000. (Tr. 234; Adm. Ex. 4). Respondent signed the checks for Ms. Nurse, Ms. Jackson and Ms. Nurse's grandchildren. (Tr. 326). Respondent left all three checks for Ms. Nurse and her two grandchildren in one envelope on Mary's night stand for Mary to give to Ms. Nurse. (Tr. 327).
On January 20, 2000, Mary also signed the $40,000 check Respondent prepared and made out to the U.S. Department of Education. (Tr. 147). Mary wanted to pay off Respondent's student loan and asked Respondent to call and get the exact amount of her student loan, but Respondent told her it was approximately $40,000 and that that was close enough to the amount and more than generous. (Tr. 242). The balance of Respondent's student loan at that time was $43,000 or $44,000. (Tr. 242).
Respondent mailed the check at the end of January before Mary died, but the check was not paid until February 7, 2000. (Tr. 147, 246; Adm. Ex. 4). Respondent did not make the check out to the U.S. Department of Education to hide the fact that Respondent was the beneficiary of
the money and Respondent put her social security number in the memo section of the check. (Tr. 148). Respondent did not advise Mary about the gift tax consequences of the check because Respondent was not aware of them. (Tr. 148-9). Respondent did not advise the accountant who prepared Mary's 2000 tax returns about the $40,000 gift because she was not involved in the preparation of Mary's taxes. (Tr. 149).
Respondent and Mary had grown very close over the years, Respondent thought it was understandable that Mary wanted to help her financially and Mary was absolutely coherent and competent in deciding that she wanted to give the gifts. (Tr. 280-81). Mary knew Andrew because he came with Respondent to visit Mary sometimes and Mary would give him books because Andrew was a voracious reader. (Tr. 245). Mary also knew Orlando, he and Andrew sometimes did chores for Mary. (Tr. 245). Andrew was 11 or 12 and Orlando was 18 or 19 in January 2000. (Tr. 245, 322).
Respondent visited Mary every day from January 19, 2000 until Mary's death on January 29, 2000 and sometimes Respondent visited Mary multiple times a day. (Tr. 324). Mary's nurse aides Ms. Nurse and Ms. Jackson were also with Mary during that time. (Tr. 325). No one witnessed either Respondent or Mary signing the checks on January 20, 2000. (Tr. 325-6).
Ms. Klosterman and Ms. Ratiner arrived after Mary made the gifts but Respondent testified that she told either Ms. Klosterman or Ms. Ratiner about the checks that were prepared on January 20, 2000. (Tr. 150, 247). Respondent testified that she had many discussions with Ms. Klosterman and Ms. Ratiner and that they knew Mary was close to Respondent and her nurse aides. (Tr. 150, 247). Ms. Klosterman and Ms. Ratiner both shared stories with Respondent about Mary's childhood. (Tr. 247). Respondent found Mary's diaries after her
death and sent them to Carol Vermillion's daughter after speaking to her about them. (Tr. 329-31).
Respondent and Sandra decided to reimburse Mary's estate for the entire $90,000 in gifts Respondent, Andrew Burns and Orlando Williams had received the same day Respondent told Sandra about all of the gifts she received from Mary. (Tr. 255). Mary's estate was reimbursed in 2001 using the loan Sandra received from her stepmother and Respondent paid back the $90,000 loan when Respondent sold her house. (Tr. 255).
Respondent is now fully aware that a lawyer can not take a substantial gift from a client without the client consulting with a different lawyer, but she was not aware of that at the time she received the gifts from Mary. (Tr. 274-75). Respondent was aware that she could not be a beneficiary of Mary's will. (Tr. 275). Respondent did not realize the legal significance of Mary giving her a check and making her a beneficiary of her will or trust was the same because a person needed legal skills to draft a will or trust and anyone could fill out a check. (Tr. 283-84).
Respondent found her niche in the law working on leases for a shopping center developer and manager and was working as a staff attorney for Simon Property Group in Indianapolis, IN, until she was fired because of the ARDC complaint against her. (Tr. 258-60). Respondent has been looking for non legal work since she was fired. (Tr. 277). She currently does secretarial work for her boyfriend's real estate broker company and is the full time caretaker of her three-year-old granddaughter. (Tr. 277).
Barbara Disko was a Circuit Court judge for approximately 24 years until she retired in December 2006. (Tr. 262-63). Judge Disko has known Sandra for over 25 years from bar
association activities and they are close friends. (Tr. 263-64). Judge Disko has known Respondent since she was a teenager. (Tr. 263). Judge Disko knows people in the legal profession who know Respondent from when she was an associate at Sandra's law firm. (Tr. 263). Respondent's reputation for honesty, integrity, truth and veracity among those people in the legal profession is very good. (Tr. 263-64). Judge Disko is aware of the ARDC charges against Respondent and they do not change her opinion of Respondent's reputation. (Tr. 264-67).
Melanie Ferrand is an elementary school librarian in Chicago. (Tr. 291). Ms. Ferrand has known Respondent for over 20 years and used to date Respondent's brother. (Tr. 291-92). Ms. Ferrand keeps in close touch with Respondent and is acquainted with Respondent's family and friends. (Tr. 291-93). Ms. Ferrand has visited Respondent in Indiana and knows some of the people Respondent is acquainted with there. (Tr. 293). Respondent's reputation for honesty truthfulness and veracity is excellent. (Tr. 292). Respondent is also reputed to be a person of integrity. (Tr. 292-3). Ms. Ferrand reviewed the Complaint in this matter and it did not change her opinion of Respondent's integrity and honesty. (Tr. 293).
Donovan Pepper works for Walgreen Company as a government affairs attorney. (Tr. 311-12). Mr. Pepper went to high school with Respondent and they have kept in constant contact since high school. (Tr. 312-13). Mr. Pepper and Respondent share a circle of friends made up of people that have known Respondent over the years and currently keep in contact with her. (Tr. 313). Respondent has a reputation for being very honest, opinionated, straight forward and above reproach. (Tr. 313-4).
Wendy Walters is an attorney and works at the National Collegiate Athletic Association. (Tr. 314). Ms. Walters met Respondent in law school and shares a group of friends with Respondent. (Tr. 314-5). Respondent's reputation for honestly, integrity, truth and veracity is very good. (Tr. 316). Ms. Walters read the Complaint in this matter and it did not change her opinion of Respondent. (Tr. 316).
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.
We find the Administrator proved by clear and convincing evidence Respondent engaged in the following misconduct:
breach of fiduciary obligations Respondent owed to Mary to avoid self-dealing with Mary's funds for Respondent's own benefit;
representing a client when the representation of that client may be materially limited by the lawyer's own interest without adequate disclosure and consent of the client, in violation of Rule 1.7(b) of the Illinois Rules of Professional Conduct; and
preparing instruments giving Respondent prohibited substantial gifts from a client in violation of Rule 1.8(c) of the Illinois Rules of Professional Conduct.
We find the Administrator did not prove by clear and convincing evidence Respondent engaged in the following misconduct:
overreaching the attorney-client relationship;
conduct involving dishonesty, fraud, and deceit and misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct; and
conduct which tends to defeat the administration of justice or which brings the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.
The evidence established Respondent was Mary's attorney during the time period Respondent received the following checks from Mary: a $10,000 check made payable to Respondent dated August 9, 1999; a $10,000 check made payable to Respondent dated September 14, 1999; a $20,000 check made payable to Andrew Burns, Respondent's son, dated January 20, 2000; a $10,000 check made payable to Orlando Williams, who lived with Respondent and whom she treated as a son, dated January 20, 2000; and a $40,000 check made payable to the U.S. Department of Education dated January 20, 2000.
As Mary's attorney Respondent had fiduciary obligations to Mary which she failed to honor. In re Imming, 131 Ill. 2d 239, 253, 545 N.E.2d 715, 721 (1989). At a minimum this duty required Respondent to provide full and frank disclosure to Mary and avoid even the appearance
of impropriety. In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978). Before she accepted any of the five checks from Mary, Respondent should have advised Mary to seek the advice of independent counsel and discussed the conflict of interest created by such gifts with Mary. Respondent admitted that she did none of these things. Her failure to follow any of these simple steps leads us to conclude that Respondent breached her fiduciary obligations to her client and violated Rule 1.7(b) when she accepted the five checks from Mary. Additionally, we conclude Respondent violated Rule 1.8(c) because she prepared the five checks from Mary's accounts which gave Respondent and her family members prohibited substantial gifts from a client. See In re Netzky, 96 CH 686 (Hearing Bd. at 28) (April 27, 1998) (case dismissed while pending at Review Bd. because Respondent deceased).
We further find Respondent did not overreach the attorney-client relationship or violate Rules 8.4(a)(4) or 8.4(a)(5) because she rebutted the presumption of undue influence. "A gift from a client to [her] attorney raises a presumption of undue influence sufficient to establish a prima facie case and to place the burden on the attorney to prove by clear and convincing evidence, that the gift was not induced by undue influence." In re Schuyler, 91 Ill.2d 6, 15, 434 N.E.2d 1137 (1982). There are several factors typically considered in determining whether an attorney has overcome the presumption or undue influence, including whether: (1) the attorney made a full and frank disclosure of all relevant information to the client; (2) the transaction between the attorney and client was based on adequate consideration, and (3) the client had independent advice before completing the transaction. Schuyler, 91 Ill.2d at 15-16; In re Marriage of Pagano, 154 Ill.2d 174, 186, 607 N.E.2d 1242 (1992); In re Bartley, III, 96 SH 879, M.R. 15176 (September 28, 1998) (Review Bd. at 12-13).
The Court has stated that it is not limited to one set of factors in determining whether the presumption of undue influence has been overcome and that "all factors bearing on the fairness of the transaction must be considered." In re Marriage of Pagano, 154 Ill.2d 174, 186, 607 N.E.2d 1242 (1992). Additionally, if other factors are present which rebut the presumption then the client does not have to have received independent advice. Schuyler, 91 Ill.2d at 16-7; Bartley, (Review Bd. at 12-13).
In this case we find the evidence established that Respondent did not take advantage of Mary or induce her to provide the checks at issue to Respondent. Respondent was a credible witness and her testimony clearly demonstrated that there was a close friendship between her and Mary which was corroborated by the testimony of Respondent's mother and Mary's caregiver, Ms. Nurse. Respondent testified in detail about the circumstances surrounding each gift and the reasons why Mary was insistent upon helping Respondent financially. Additionally, the testimony demonstrated that Mary was an intelligent, highly educated woman who was self-aware, engaged with other people and who actively participated in decisions concerning her health and her personal estate.
The fact that Respondent did not try to isolate Mary when she was diagnosed with a terminal illness also rebuts the presumption of undue influence. The phone records show that Respondent called Mary's relatives when Mary returned home from the hospital to start hospice. The evidence further established that Respondent told Mary's relatives that Mary was dying from cancer and urged them to be with Mary in the final days of her life.
Additionally, although there was substantial medical evidence presented which showed Mary suffered from common diseases of advancing age, there was no testimony that connected her health or moments of temporary confusion to her incapacity to express her desires on any of
the dates Respondent received the checks from her. Dr. Littman did not offer any medical opinion in his testimony regarding Mary's capacity or mental ability and declined to express an opinion on these subjects. Ms. Nurse testified about her observations that Mary was alert, talkative and in her usual state of humor during the first few days after she came home from the hospital. Respondent's mother and Mary's cousins also testified that they were able to converse with Mary and that she maintained her wit during this time period.
We note that there were no independent witnesses to the gifts Mary gave Respondent and that in Schuyler, 91 Ill. 2d at 17, the Court stated that "a totally private transaction, inadequately documented, clearly fails to rebut the presumption of undue influence which arises when the attorney benefits during the attorney-client relationship." However, we find the transactions between Mary and Respondent are clearly distinguishable from those between the attorney and client in Schuyler. The attorney in Schuyler received money from an elderly client who was living in a retirement home, but there was no evidence of a personal relationship between the attorney and the client. There was also evidence that after the client died the attorney in Schuyler was not candid with representatives of the client's estate who were trying to locate the funds the attorney had received from the client.
The uncontradicted testimony and evidence in this case showed that Respondent was a relatively young woman who was befriended by an older woman and that Respondent and Mary had a close and mutually supportive relationship. This does not excuse Respondent's misconduct, but it does rebut the presumption of undue influence.
There was also no evidence Respondent tried to hide the gifts she received from Mary. Respondent was candid with her mother about all the checks she received from Mary when Sandra asked her about the $40,000 check to the U.S. Department of Education. The
Administrator's argument that Respondent made the $40,000 check out to U.S. Department of Education to hide the fact that it was a gift to Respondent was not convincing because Respondent's social security number was on the check which clearly designated her as the beneficiary of the money. Additionally, once Sandra informed Respondent she should not have accepted the checks from Mary the money was immediately repaid to Mary's estate and the reimbursement was disclosed to Mary's half brother and his wife.
Finally, the Administrator's argument that Respondent was not candid about whether she was a signatory on the account the $10,000 check made payable to Orlando Williams was drawn on was not persuasive. Respondent testified that she could not remember whether she was a signatory on the account before or after Mary's death and the Administrator failed to present any definitive evidence regarding whether or not Respondent was a signatory on the account at the time she signed the check. Therefore, we can not conclude Respondent was not candid in her testimony.
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).
Respondent's misconduct is mitigated by the fact that she has not been previously disciplined. Respondent also presented four character witnesses who testified to Respondent's reputation for honesty and integrity in the community. See In re Lenz, 108 Ill.2d 445, 453-4, 484
N.E.2d 1093, 1097 (1985) (lack of prior discipline and character testimony are mitigating factors). Further, Respondent paid back the funds she received from Mary immediately upon realizing that her acceptance of the gifts was improper. Respondent sold her house to repay the loan Respondent's mother used to make Mary's estate whole. The gifts Respondent received were returned to the estate four years prior to any complaint being filed with the ARDC. We also find it mitigating that Respondent lost her job because of the ARDC proceeding against her.
We further find Respondent's misconduct is aggravated by her failure to take any steps to remedy her lack of knowledge about her professional obligations. Respondent did not present any evidence that she attended an ethics course or seminar after she became aware that her acceptance of the checks from Mary violated her ethical duties.
Having considered the mitigating and aggravating factors, we now must determine an appropriate sanction. The Administrator recommends Respondent be suspended for at least one year and cites the following cases in support of his recommendation: In re Imming, 131 Ill.2d 239, 545 N.E.2d 715 (1989) (attorney suspended for two years); In re Bartley, III, 96 SH 879, M.R. 15176 (September 28, 1998) (attorney disbarred); In re Oklepek, 00 CH 2, M.R. 18353 (November 26, 2002) (attorney suspended for six months), In re Carrillo, 02 CH 45, M.R. 20517 (December 14, 2005) (attorney disbarred); In re Netzky, 96 CH 686 (April 27, 1998) (Hrg. Board recommended two year suspension, but case dismissed while pending at Review Bd. because Respondent deceased). Respondent recommends that at most Respondent's misconduct warrants reprimand or a censure and cites the following cases in support of her recommendation: In re Schuyler, 91 Ill.2d 6, 434 N.E.2d, 1137 (1982) (attorney censured); In re Barrik, 87 Ill.2d 224 (1981) (charges dismissed); In re Vogel, 92 Ill.2d 55, 440 N.E.2d 885 (1982) (attorney censured); In re Allen, 97 CH 71, M.R. 17511 (June 28, 2001) (attorney censured); In re Demas,
98 CH 46, M.R. 15376 (February 1, 1999) (attorney censured); In re Narmont, 94 SH 41, M.R. 9785 (March 30, 1994) (attorney censured); In re Oklepek, 98 CH 133 (April 14, 1999) (attorney reprimanded); In re Merlie, 00 SH 55 (attorney reprimanded).
After considering the cases cited by the Administrator and Respondent, we conclude that a reprimand is warranted in this case and strongly recommend that Respondent attend the ARDC Professional Responsibility Institute within the next year to ensure that she has a comprehensive understanding of her ethical responsibilities. The cases cited by the Administrator in support of a suspension of at least one year involve misconduct that is far more egregious than Respondent's including converting client funds, risking or depleting client assets, and exerting undue influence over vulnerable clients. We find the cases cited by Respondent more analogous to this case because many of them involve situations in which an attorney had an extended relationship with a client, but used poor judgment in discerning the attorney's professional obligations.
In Allen, 97 CH 71, an attorney was censured for accepting substantial gifts from a client who had become an extremely close friend. The client accused the attorney of soliciting the gifts, but the attorney was not found to have exerted undue influence over her client. In Demas, 98 CH 46, an attorney was censured for opening a checking and savings account in joint tenancy with an elderly client which only contained the client's money, taking funds from the accounts before and after the client's death, and failing to establish an estate trust account or file his client's will with the probate court when the client died. The attorney acted as the primary caretaker of the client, but was found to have exerted undue influence over the client. In Vogel, 92 Ill.2d 55, the attorney was censured for preparing a series of testamentary documents and other documents which left the bulk of a client's property to the attorney. The Court noted that
the attorney had been a close personal friend of the client over a long period and was one of two persons concerned with the client's welfare.
The attorney in Oklepeck, 98 CH 133, was reprimanded for preparing a will for a client that bequeathed half of the client's estate to the attorney and his wife. The attorney was not found to have exerted undue influence over the client and there was evidence the attorney and his wife often visited the client at her retirement home and took her shopping and to doctor's appointments. The attorney in Merlie, 00 SH 55, was similarly reprimanded for preparing a will for his client which included a bequest to himself at his client's insistence. The attorney was not found to have exerted undue influence on his client, there was evidence the client was competent and alert, and the attorney renounced the bequest when the ARDC charges were filed against him and did not receive any funds.
We find reprimand rather than censure to be appropriate in this case because similarly to Oklepck and Merlie, Respondent did not exert any undue influence on Mary and accepted the gifts from Mary at her insistence. The evidence showed Mary was competent at the end of her life and that Respondent and Mary had a close friendship. Additionally, unlike the attorneys in Vogel and Demas, the gifts Respondent accepted from Mary did not represent a large portion of her estate and she did not take any action to delay Mary's probate matter or claim any portion of Mary's assets after she died.
Considering the nature of the Respondent's misconduct, the evidence in mitigation and the evidence in aggravation, this Panel recommends Respondent be reprimanded and attend the ARDC Professional Responsibility Institute within the next year.
Date Entered: July 14, 2009
|Mark L. Karasik, Chair, with Charles E. Reiter, III and Edward J. Miller concurring.|
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
HEATHER ANNE BURNS,
Commission No. 06 SH 91
To: Heather Anne Burns
You are being reprimanded for breaching your fiduciary duties to your client, Mary Vermillion, by accepting five checks from Mary, without advising Mary to seek the advice of independent counsel or discussing the conflict of interest created by such gifts with Mary.
Your conduct as described in this Reprimand and in the Report and Recommendation was improper and in violation of the Illinois Rules of Professional Conduct. Specifically, you engaged in conduct that violated Rule 1.7 (b) by representing Mary when your representation of her may have been materially limited by your own interest without providing adequate disclosure to Mary and obtaining Mary's consent and Rule 1.8 (c) by preparing the five checks which gave you prohibited substantial gifts from Mary.
The Hearing Board has also determined that you have not been previously disciplined, that you have an excellent reputation for integrity in your profession and community, and that you reimbursed Mary's estate for all five checks you received from her. The Board has concluded that your misconduct, in large part, resulted from errors in judgment and we strongly recommend that you attend the ARDC Professional Responsibility Institute within the next year.
The Hearing Board has the authority, pursuant to Supreme Court Rule 753(c )(3) to administer a reprimand to a Respondent in lieu of recommending disciplinary action by the Illinois Supreme Court. The Board has determined that this course of action is appropriate in this case. You are therefore reprimanded for engaging in conduct which did not comport with the level of professionalism required of an attorney.
You are further advised that while this reprimand is not formally presented to the Illinois Supreme Court, it is not to be taken lightly. This reprimand is a matter of public record and is on file with the Attorney Registration and Disciplinary Commission and may be admitted into evidence in subsequent disciplinary proceedings against you.
|Mark L. Karasik, Chair, with Charles E. Reiter, III and Edward J. Miller concurring.|