Filed February 26, 2009
In re Peter Reynolds Coladarci
Commission No. 07 CH 79
Synopsis of Hearing Board Report and Recommendation
NATURE OF THE CASE: 1) practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; 2) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 3) engaging in conduct prejudicial to the administration of justice; and 4) engaging in conduct that tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.
RULES DISCUSSED: 5.5(a), 8.4(a)(4), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
RECOMMENDATION: Three month suspension from the practice of law.
DATE OF OPINION: February 26, 2009.
HEARING PANEL: Henry T. Kelly, Chair, Heather A. McPherson, and William E. Gabbard.
RESPONDENT'S COUNSEL: Thomas A. Durkin.
ADMINISTRATOR'S COUNSEL: Cass R. Buscher.
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
PETER REYNOLDS COLADARCI,
Commission No. 07 CH 79
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on September 16, 2008, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Board Panel consisting of Henry T. Kelly, Chair, Heather A. McPherson, and William E. Gabbard. Cass R. Buscher appeared on behalf of the Administrator of the ARDC. Respondent appeared and was represented by Thomas A. Durkin.
PLEADINGS AND PRE-HEARING PROCEEDINGS
On August 20, 2007, the Administrator filed a one-count Complaint pursuant to Supreme Court Rule 753(b). The Administrator alleged that Respondent practiced law while his license to practice law was suspended. Respondent filed an Answer to the Complaint admitting some of the factual allegations, denying some of the factual allegations, and denying all allegations of misconduct.
The Administrator presented the testimony of two witnesses, including Respondent, and offered exhibits 1 and 2 which were admitted into evidence. Respondent testified on his own behalf, presented the testimony of one witness, and offered exhibits 1, 2, and 5 which were admitted into evidence.
On October 14, 2005, the Illinois Supreme Court entered an order in In re Coladarci, 01 CH 20, M.R. 20228, suspending Respondent from the practice of law for three months, beginning on November 7, 2005 and concluding on February 7, 2006. Prior to the effective date of the suspension, Respondent made arrangements for Bryan J. O'Connor, an Illinois attorney, to handle the majority of Respondent's pending cases. Respondent had a contingent fee agreement with all of the clients he referred to O'Connor, and Respondent and O'Connor entered into an agreement regarding the payment of fees for those cases.
One matter that was pending at the time of Respondent's suspension was Kotek v. Jiffy Lube International. Respondent represented the plaintiffs. On September 16, 2005, the circuit court granted the defendants' motion for summary judgment. On September 19, 2005, Respondent filed a notice of appeal from the circuit court's order. Prior to his suspension, Respondent informed O'Connor that he had substantially completed the appellate brief in the matter. On November 1, 2005, O'Connor filed a motion for leave to file a substitution of attorneys in the appeal. On November 14, 2005, the court granted the motion. On December 1, 2005, O'Connor filed a motion to file the record on appeal instanter.
On January 10, 2006, Respondent met with O'Connor to review the appellate brief before filing, and they discussed adding a footnote to preserve an argument not addressed in the circuit court's order. After the meeting, Respondent took a draft of the brief to his home and composed and added the footnote. Respondent also reviewed the brief to ensure that the page references were correct, and took the brief to a copy center for copying.
Prior to filing the brief, Respondent and O'Connor discovered that the due date for filing the brief was incorrectly diaried for January 18, 2006, instead of the correct date of January 17,
2006. Sometime in January 2006, Respondent prepared a motion for leave to file the brief instanter and an affidavit for O'Connor. At Respondent's request, O'Connor signed the affidavit. On January 18, 2006, Respondent signed O'Connor's firm name to the brief and motion, and filed them with the appellate court.
On January 19, 2006, Respondent called Scott Carlson, the attorney representing one of the defendants-appellees, and asked if he wanted the record on appeal to be sent to him or counsel for the other defendants. Respondent told Carlson that he was "on vacation" but when Carlson questioned him further, confirmed that he was still serving his suspension. Respondent also advised Carlson that he struggled with how to raise and preserve an issue not addressed in the circuit court's order, and decided to include it in a footnote in the brief.
Scott Carlson is an attorney and a partner with the law firm of Seyfarth Shaw. (Tr. 21-22). Carlson represented the defendants, and Respondent represented the plaintiffs in the Kotek case. (Tr. 24). While the case was pending in the circuit court, Carlson learned that Respondent's license to practice law would be suspended. (Tr. 26-27). The circuit court entered summary judgment in favor of the defendants, and Respondent appealed that order. (Tr. 24-27).
On January 19, 2006, after appellant's brief was filed, Carlson received a telephone call from Respondent. (Tr. 28-29). Initially, Respondent told Carlson that he was on vacation, but then said he was "on suspension." (Tr. 29, 38-39). Respondent explained to Carlson that he struggled with how to address an issue contained in the appellate brief. (Tr. 29-30, 39-40). Respondent also asked Carlson, as a courtesy, whether he wanted Respondent to deliver the record on appeal, or return it to the appellate court. (Tr. 30, 40-41). After talking to Respondent, Carlson had the impression that Respondent had written the brief. (Tr. 32-33, 35). Carlson knew
that Respondent was suspended and another attorney had entered his appearance with the appellate court on behalf of the plaintiffs. (Tr. 30-31, 49). He explored his obligations to report Respondent, and sent a letter to the ARDC in April 2006. (Tr. 36-38, 55-57; Resp. Ex. 1). Carlson was initially unsure of whether Respondent violated his ethical obligations. He considered the facts and consulted with the firm's general counsel before sending the letter to the ARDC. (Tr. 50-57, 62-68). Carlson is aware of the facts that his firm, and other large law firms, use law clerks and paralegals to assist lawyers with their jobs. (Tr. 57- 60). Carlson compared the Respondent's motion for summary judgment to the appellant's brief and determined that they contained some similarities and some differences, with the appellate brief containing additional sections and information. (Tr. 73, 75-78).
Respondent was suspended from the practice of law for three months, between November 2005 and February 2006. (Tr. 84). He began working on the appellate brief in January 2006, during his suspension from the practice of law. (Tr. 83). During his suspension, O'Connor agreed to be responsible for almost all of Respondent's pending cases. (Tr. 84). In the Kotek appeal, Respondent drafted the appellant's brief based on documents he drafted when the case was pending in the circuit court. (Tr. 86). The case involved complex legal and factual issues, and Respondent believed he was in a better position to write the brief because it would take too long for O'Connor to become familiar with the record. (Tr. 87, 104-105). Respondent told O'Connor he would write the brief, and give it to O'Connor to read and approve. (Tr. 87-88).
Respondent completed three or four drafts of the brief, and worked on it for 15 to 20 hours, before he gave it to O'Connor. (Tr. 88). When he delivered a draft of the brief to O'Connor, they discussed an issue Respondent wanted to put in the brief, but which the circuit
court had not addressed. Respondent and O'Connor decided to include the issue in a footnote, and Respondent drafted the footnote. (Tr. 88-91, 106; Adm. Ex. 2 at 2). Respondent added the footnote and had the brief copied. (Tr. 91). Respondent had mistakenly thought the brief was due on January 18, 2006, but it was actually due on January 17, 2006. Consequently, he prepared a motion for leave to file the brief instanter. (Tr. 91-92). After Respondent filed the motion and brief, he called Carlson to ask him if he wanted the record on appeal delivered to his office. He also discussed the footnote with Carlson. (Tr. 92-93).
Respondent did not seek the advice of any attorney regarding whether he could draft an appellate brief while suspended. (Tr. 93-94). However, after he was suspended, his attorney received a letter from the ARDC which referred to Supreme Court Rule 764. (Tr. 96-97; Resp. Ex. 5). Rule 764 applies to suspensions of six months or longer, but gives guidance for what Respondent could do during his three month suspension. (Tr. 97-98). Based on his attorney's advice, Respondent gave his open client files to O'Connor, withdrew from his law office and removed any indicia that he was an attorney. (Tr. 98-99). Respondent also discussed his suspension with all of his clients, including the plaintiffs in the Kotek case, and all of his opposing attorneys. He notified the courts and requested withdrawal of his appearance in pending cases. (Tr. 100-102).
Respondent did not ask his attorney or anyone at the ARDC whether drafting an appellate brief was the practice of law, but he did not think it would be practicing law. He testified that: "it didn't seem realistic that writing a brief approved by somebody else, by a practicing lawyer, was a practice of law, and I've never seen a case that so held." (Tr. 114-15, 118). Respondent and his attorney were concerned about the lack of guidance for an attorney who was suspended for less than six months. (Tr. 116).
Brian O'Connor is an attorney, and has known Respondent since the 1980's. (Tr. 127). O'Connor agreed to handle some of Respondent's cases while Respondent was suspended from the practice of law. (Tr. 128-29). O'Connor and Respondent discussed the appeal in the Kotek case. O'Connor understood that because the circuit court decided the case based on a motion for summary judgment, the appellate brief would be cut and pasted from motions filed in the circuit court. (Tr. 131, 138). Based on those facts, O'Connor authorized Respondent to prepare a draft of the brief. (Tr. 131).
Respondent brought O'Connor a draft of the brief, he read it, they discussed addressing an issue in a footnote, and he approved filing the brief. (Tr. 131-35). O'Connor and Respondent had miscalculated the date the appellate brief was due, and Respondent drafted a motion to file the brief instanter. O'Connor signed the affidavit attached to the motion. (Tr. 133; Adm. Ex. 2). he did not sign the brief, but he authorized Respondent to file it under his law firm's name. (Tr. 135-36). O'Connor spent between four and five hours on work related to the appeal. (Tr. 139-40).
Respondent was suspended from the practice of law for three months after improperly making a contribution to a judicial campaign. In re Coladarci, 01 CH 20, M.R. 20228 (September 26, 2005). Respondent's friend, Thomas Fazioli, was on the list for an associate judge position in Cook County. Recently elected Illinois Supreme Court Justice Thomas R. Fitzgerald was on the nominating committee for the associate judge positions. He was also having a fund raising event to retire campaign debt. Respondent and Fazioli were going to attend the event, and Fazioli gave Respondent $7,500, and asked him to contribute $5,000 to
Justice Fitzgerald's campaign fund. Respondent made the donation in his own name. The following day, Respondent told Justice Fitzgerald's campaign manager that the contribution was actually from Fazioli, and suggested that it was made in relation to Fazioli's candidacy for a judgeship. Respondent was found to have: 1) engaged in conduct involving misrepresentation; 2) engaging in a criminal act (violation of the Election Code) that reflects adversely on his honesty, trustworthiness and fitness as a lawyer; 3) gave assistance to another's conduct, when he knew that conduct would violate the Illinois Rules of Professional Conduct; and 4) engaged in conduct that is prejudicial to the administration of justice.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator must prove the alleged 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). "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, § 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). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
In this case, based on the evidence and testimony presented at the hearing, we find that the Administrator proved, by clear and convincing evidence, that Respondent engaged in most, but not all of the misconduct alleged in the Complaint. Specifically, we conclude the
Administrator proved that Respondent: 1) practiced law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; 2) engaged in conduct that is prejudicial to the administration of justice; and 3) engaged in conduct which tends to defeat the administration of justice or brings the courts or the legal profession into disrepute in violation of Rules 5.5(a) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
The Illinois Supreme Court has found that a "[d]efinition of the term ‘practice of law' defies mechanistic formulation." In re Discipio, 163 Ill. 2d 515, 523, 645 N.E.2d 906 (1994). Instead, in determining whether conduct amounts to the practice of law, the Court has examined the character of the conduct. Id. at 523. It is well-established that a person engages in the practice of law when he gives advice or renders services that requires the use of legal knowledge or the skill to apply legal principles. In re Howard, 188 Ill. 2d 423, 438, 721 N.E.2d 1126 (1999); Discipio, 163 Ill. 2d at 523. The Court has articulated examples of conduct that constitutes the practice of law including, preparing or explaining legal instruments, preparing pleadings and other papers incident to actions, giving advice on questions of law, and giving an opinion regarding the right to maintain an action. In re Nash, 03 CH 128, M.R. 20418 (November 22, 2005) (Hearing Bd. Rpt. at 26); Discipio, 163 Ill. 2d at 525; In re Bodkin, 21 Ill. 2d 458, 461, 173 N.E. 2d 440 (1961). Specific activities that have been found to constitute the practice of law include preparing a will or contract, attending a real estate closing, and giving legal advice. Nash, 03 CH 128 (Hearing Bd. Rpt. at 26) (citations omitted).
In a recent non-disciplinary case, the Court discussed the unauthorized practice of law and stated "the preparation of documents -- the filling in of blanks with relevant information and the tailoring of the document to fit the particular transaction for which it is to be used, not the
mere furnishing of legal forms for use by another, that makes the activity the unauthorized practice of law." King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 23, 828 N.E.2d 1155 (2005).
Based on the Supreme Court's analysis of the conduct that constitutes the practice of law, we find that Respondent practiced law while he was suspended. The facts of this case are essentially undisputed. Respondent was suspended from the practice of law between November 7, 2005, and February 7, 2006. Prior to the effective date of the suspension, he arranged for O'Connor to handle some of his cases, including the Kotek appeal. Respondent represented the plaintiff-appellants in that matter, and their appellate brief was due to be filed on January 17, 2006. Sometime in January 2006, Respondent began drafting the brief. Respondent based the brief on documents he had previously filed in the circuit court. He felt he was in a better position to write the brief than O'Connor because the case involved complex legal and factual issues, and it would take O'Connor too long to become familiar with the record. Respondent completed three or four drafts of the brief before he gave a copy to O'Connor for his review and approval.
On January 10, 2006, Respondent met with O'Connor to review the brief, and they discussed how to preserve an issue in the appeal that the circuit court had not addressed. After discussing the matter, they agreed to include the issue in a footnote. Respondent added the footnote to the brief, made copies, and filed it.
Respondent and O'Connor mistakenly thought the brief was due to be filed on January 18, 2006, instead of January 17, 2006. Accordingly, when Respondent tried to file the brief on January 18, 2006, he needed a motion to file the brief instanter. Respondent drafted the motion and an affidavit for O'Connor to sign. On January 19, 2006, Respondent discussed the appeal with Carlson, the attorney for the defendants-appellees. He also told Carlson that he struggled
with how to address the issue he included in the footnote.
Drafting an appellate brief requires the practice of law. Contrary to Respondent's argument, the appellate brief was not simply a different version of his circuit court pleadings. In fact, Respondent's own testimony contradicts this argument. He stated that he spent 15 to 20 hours drafting the brief and completed three or four drafts of the brief before giving it to O'Connor. Further, even a cursory comparison of the motions and the appellate brief reveals that Respondent added significant legal arguments to the brief, which included citations to case law that were not in the circuit court motions. These facts establish that Respondent used legal skills and knowledge to identify the legal issues, conduct legal research, and apply the case law to the facts of his case. This is the essence of practicing law.
Moreover, Respondent discussed a significant legal issue with O'Connor. Respondent admitted, and O'Connor testified, that they discussed the strategy of how to address an issue in the appellate brief that the circuit court failed to address. The discussion centered on how to preserve the issue for review. After they decided to address the issue in a footnote, Respondent drafted it. We conclude that a discussion involving the preservation of an issue for review involves the practice of law because it required the use of legal knowledge and the skill to apply legal principles. Additionally, Respondent drafted a motion for leave to file the brief instanter and an affidavit. For the reasons similar to those already stated, we conclude that Respondent was practicing law when he drafted the motion and affidavit.
Respondent argues that a finding that he practiced law would have an adverse impact on the legal profession because he did nothing more than paralegals and law clerks do at law offices throughout Chicago. We decline to accept Respondent's extrapolation of our findings. We are not breaking new ground by finding Respondent practiced law. We are simply applying well-
established case law to the facts of this case. Respondent was not a law clerk or a paralegal. He was a suspended attorney. Special requirements apply to him while his license is suspended, and he violated those rules. See In re Kuta, 86 Ill. 2d 154, 427 N.E.2d 136 (1981).
In Kuta, the Court stated that the "line of demarcation between the work that a paralegal or law clerk may do and those functions that can only be performed by an attorney is not always clear and distinct. The opportunity for a disbarred or suspended attorney who is serving as a paralegal or law clerk to violate the line of demarcation is too great and too inviting." Kuta, 86 Ill. 2d at 161. The court further explained that the public is not aware of the differences between work performed by a paralegal and an attorney, and for the public to see a disciplined attorney performing legal work will lessen the public's regard for the disciplinary process. Id. at 161-62.
On the other hand, if we followed Respondent' interpretation of the rules, a suspended attorney could continue to draft legal documents (including briefs and motions), converse with opposing counsel about pending cases, strategize on legal issues with co-counsel in pending cases, sign co-counsel's name to pleadings, and essentially continue to practice law as long as he did not appear in court or frequent his office. This would make a mockery of the Court's authority to discipline the profession. It would also give suspended attorneys the ability to, at a minimum, engage in an appellate practice while suspended or disbarred. Accordingly, we reject Respondent's argument and find that he engaged in the practice of law while he was suspended. See In re Discipio, 163 Ill. 2d 515, 526-27, 645 N.E.2d 906 (1995) (a suspended attorney cannot avoid his obligations to refrain from practicing law by providing legal services from a location other than his law office).
We also reject Respondent's argument that he was denied due process because he did not receive notice of what constitutes the practice of law. Respondent fails to support this argument
with any authority, and we reject Respondent's claim. As articulated earlier in this section, the Illinois Supreme Court has published numerous cases explaining the acts that constitute the practice of law. These cases pre-date Respondent's suspension, and it is his duty to familiarize himself with them. Respondent admitted he received a letter from the ARDC giving him notice of his suspension and referring him to specific Supreme Court Rules. Nevertheless, Respondent did not seek the advice of any attorney regarding whether drafting an appellate brief would constitute the practice of law and did not inquire with the ARDC for clarification. Instead, he simply engaged in prohibited conduct. Based on these reasons and the reasons the Respondent's initial motion to dismiss was denied, we also deny Respondent's renewed motion to dismiss.
We also find that the Administrator proved that Respondent engaged in conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice and brings the courts or the legal profession into disrepute. By finding that Respondent practiced law while his law license was suspended, we must also find that by doing so, he violated an Illinois Supreme Court order. This defeats the administration of justice and brings, not only attorney, but the Court into disrepute. Attorneys must comply with court orders, especially orders affecting their ability to practice law. Although it is clear that Respondent violated these Rules, it should be noted that he did not do so in a flagrant or disrespectful manner. Instead, he mistakenly believed he was complying with the Court's order. Moreover, he did not practice law in way that would alert the public to his actions.
We further find that the Administrator failed to prove that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct. Respondent testified that he honestly believed that he was not violating the Court's order when he prepared the appellate brief. He did not hold
himself out to the public as a practicing attorney, consult with any clients, maintain an office, or appear in court. He spoke with his opposing counsel, Carlson, but he already knew Respondent was suspended at the time of their conversation. We find Respondent's testimony credible on this point, and that he did not violate this Rule. In re Smith, 168 Ill. 2d 269, 283, 659 N.E.2d 896 (1995) (the Hearing Board is in the best position to determine the credibility of the witnesses).
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986). Also, "it is important to recognize the deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." Twohey, 191 Ill. 2d at 85.
The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In the present case there are few mitigating factors and several aggravating factors.
Respondent's misconduct is mitigated by the fact that his clients were not harmed by his misconduct. Although Respondent practiced law while suspended when he drafted the appellate brief, O'Connor, a licensed attorney entered an appearance in the appeal, reviewed the brief and approved its filing. O'Connor was responsible for the case, and Respondent's clients were protected from any ramifications usually associated with an unlicensed attorney practicing law.
Respondent's misconduct is also mitigated by his lack of intent or dishonest motive. Respondent testified that when he drafted the appellate brief, he believed he was acting properly, and took what he believed were appropriate steps to comply with the Supreme Court's suspension order. As discussed, he made arrangements for O'Connor to handle his cases during the suspension, had O'Connor review the brief before it was filed, and filed it under O'Connor's name. Additionally, Respondent consulted with an attorney to comply with the Rules during his suspension. Accordingly, he was not attempting to skirt the Rules, instead, he was honestly, yet mistakenly, attempting to comply with them. We find his lack of intent to violate the Rules, and lack of dishonest motive to mitigate his misconduct.
Respondent's misconduct is aggravated by the fact that he has been previously disciplined. Generally, prior discipline is a serious aggravating factor, and typically requires a more severe sanction than might otherwise be imposed. In re Blank, 145 Ill. 2d 534, 585 N.E.2d 105 (1991). The nature of the prior misconduct and the period of time between the prior misconduct and the current misconduct are important elements to consider when determining the weight to be given to this aggravating factor. See In re Levin, 101 Ill. 2d 535, 463 N.E.2d 715 (1984); In re Weitzman, 93 CH 551, M.R. 12217 (March 26, 1996).
In the present case, Respondent was suspended from the practice of law for three months in 2005, after he improperly made a contribution to a judicial campaign on behalf of a friend who
was pursuing an appointment to an associate judgeship. The nature of Respondent's current misconduct is substantially different from his prior misconduct. In fact, there are no similarities between Respondent's prior and current misconduct. Therefore, although Respondent's prior discipline is an aggravating factor, we do not give it significant weight.
Having considered the mitigating and aggravating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be suspended for one year, and bases this recommendation on several cases where an attorney practice law while suspended. See Howard, 188 Ill.2d 423 (two year suspension);In re Bredemann, 05 CH 102, M.R. 22793 (January 20, 2009) (two year suspension); In re Nash, 03 CH 128, M.R. 20418 (November 22, 2005) (one year suspension); In re Neuendorf, 02 CH 31, M.R. 19441 (September 24, 2004) (disbarment). Respondent argues that the Administrator failed to prove his case, and that the charges should be dismissed. Alternatively, he argues that even if misconduct was proven, a one year suspension is excessive.
After reviewing the cases cited by the Administrator, and other relevant cases, we believe that a three month suspension from the practice of law is the appropriate sanction in this matter. We find the cases cited by the Administrator, while instructive, are distinguishable from the present case because they either involve more egregious misconduct or misconduct that is not analogous to the misconduct in the present case.
In Howard, the attorney was found to have engaged in five separate instances of misconduct including failing to disclose a prior suspension on a pro hac vice petition, neglecting a criminal appeal, failing to return a $25,000 unearned fee, and practicing law while his license was suspended when he gave legal advice and accepted legal fees in three separate criminal cases. Howard had two prior disciplinary actions. In 1988, he received a reprimand after
neglecting two criminal appeals. In 1995, he was suspended from the practice of law for five months for failing to communicate with clients, failing to refund unearned fees, converting client funds, and neglecting two criminal matters. Based on Howard's prior discipline, and most recent misconduct, the Court suspended him for two years.
In Bredemann, the Seventh Circuit entered an order striking Bredemann's name from the roll of attorneys authorized to practice law in that court. Without being reinstated, Bredemann filed two notices of appeal and three motions in the Seventh Circuit. The notices of appeal were filed in Bredemann's name, and the motions were filed under the signature of a different attorney who had not given Bredemann authority to do so. The Hearing Board found that Bredemann engaged in the unauthorized practiced law in the Seventh Circuit, and deceived the court by filing motions using another attorney's name. In aggravation, Bredemann expressed no remorse for his misconduct, placed the other attorney's legal career and reputation in jeopardy, placed his client's interest in jeopardy. Bredemann was suspended from the practice of law for two years and until further order of the court.
In Nash, the attorney prepared documents for a real estate closing while suspended from the practice of law. He had two prior disciplinary actions. In the first matter he received a reprimand for practicing law when his name was removed from the Master Roll for failing to register. In the second matter he received a one year suspension for conversion of client funds, commingling, and failing to promptly deliver funds to a client or third party. Based on these facts, Nash was suspended for one year.
In Neuendorf, during his suspension, the attorney continued to occupy his office, meet with and advised clients, prepare court documents including complaints and motions, send letters out on his letterhead and with his signature, engage in negotiations with other attorneys, draft
documents for real estate closings. He had two prior disciplinary actions, a censure for neglecting two client matters, and a 90 day suspension for converting client funds. Neuendorf was disbarred.
None of the cases cited by the Administrator are sufficiently analogous to this case. The attorneys in Howard, Nash and Neuendorf had two prior disciplinary actions and were before the Court on their third. In all of the cases cited by the Administrator, except Nash, the attorney's misconduct was more egregious than Respondent's misconduct. Howard advised and took fees from three criminal defendants, neglected a criminal appeal, and failed to refund a $25,000 unearned fee. Bredemann filed documents in his own name and the name of another attorney without the attorney's authority. Neuendorf continue to openly act as an attorney during his suspension by occupying his office, meeting with clients, negotiating cases, and drafting court documents. All three of these attorneys demonstrated a blatant and intentional disregard of the Court's disciplinary orders which is not evident in the pending matter. Therefore, the sanctions imposed in those cases are inappropriate for this case.
In the present case, we are confronted with unique facts. We are mindful of the underlying purpose of our disciplinary system, which is not to punish, but to protect the public, maintain the integrity of the profession, and protect the administration of justice. Twohey, 191 Ill. 2d at 85. We are also aware that our recommended sanction should be consistent with those imposed in similar cases, while considering the unique facts of the case before us. In re Smith, 168 Ill. 2d 269, 296, 659 N.E. 2d 896 (1995). Based on all of these considerations, we recommend that Respondent be suspended from the practice of law for three months.
We do not believe that Respondent is a threat to the public or that he is at risk to repeat his misconduct. His misconduct was committed outside of the public eye, and had a minimal
impact on the public's perception of the Court's ability to protect it from unethical attorneys. Additionally, there was no harm to Respondent's client and he worked with a licensed attorney who reviewed the brief and authorized it to be filed under his name, not Respondent's name. Moreover, Respondent's misconduct was limited to one case and one court document. Importantly, Respondent's misconduct does not involve dishonesty, deceit, fraud or misrepresentation. Although we do not want to minimize the seriousness of Respondent's misconduct, we believe that under the unique circumstances of this case, a three month suspension is appropriate.
Date Entered: February 26, 2009
|Henry T. Kelly, Chair, Heather A. McPherson, and William E. Gabbard, Hearing Panel Members.|