Filed November 18, 2009
In re Andrew Joseph Rukavina
Commission No. 07 CH 96
Synopsis of Review Board Report and Recommendation
The Administrator charged Rukavina in a four-count complaint with false or misleading advertising and misconduct associated with his failure to disclose to clients that he had financial interests in the survey company and title agency he used for his clients' real estate closings. Rukavina denied committing any misconduct.
The Hearing Board found that Rukavina breached his fiduciary duty, failed to explain matters sufficiently to allow clients to make an informed decision about the representation, entered into business transactions with clients without obtaining their consent after full disclosure, represented clients when the representation was materially limited by Rukavina's own interests without consent after full disclosure, failed to keep clients reasonably informed about the status of the matter and to promptly comply with their requests for information, and engaged in conduct that brings the legal profession into disrepute.
The Hearing Board found insufficient proof of undue influence, overreaching, false or misleading advertising, dishonest conduct, and conduct prejudicial to the administration of justice. It recommended that Rukavina be censured and required to attend the Illinois Institute of Professional Responsibility.
The matter was before the Review Board on the Administrator's exceptions. The Administrator asserted that he proved the charges of overreaching, undue influence, false or misleading advertising, and dishonest conduct and that Rukavina should receive a six-month suspension.
The Review Board reversed the Hearing Board's findings of no misconduct. Based on the additional misconduct, the factors in aggravation, and the need to protect the public, maintain the integrity of the legal profession, and deter similar misconduct in the future, the Review Board recommended that Rukavina's license be suspended for five months and that Rukavina be required to attend the Illinois Institute of Professional Responsibility.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANDREW JOSEPH RUKAVINA,
Commission No. 07 CH 96
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellant filed a four-count complaint against the Respondent-Appellee, Andrew Joseph Rukavina, charging him with misconduct in relation to his representation of clients in four real estate closings.
Specifically, the Administrator charged the Respondent with the following misconduct: breach of his fiduciary duty (Counts I-IV); undue influence (Counts I-IV); overreaching the attorney-client relationship (Counts I-IV); failing to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information, in violation of Illinois Rule of Professional Conduct 1.4(a) (Counts I, III, and IV); failing to explain a matter sufficiently to permit a client to make informed decisions regarding the representation, in violation of Rule 1.4(b) (Counts I-IV); representing a client when the representation was materially limited by the lawyer's responsibilities to his own interests without client consent after full disclosure of the conflict of interests, in violation of Rule 1.7(b) (Counts I-IV); entering into a business transaction with a client without obtaining the client's consent to a conflict of interest after full disclosure, in violation of Rule 1.8(a) (Counts I-IV); making a false or misleading communication about the lawyer or the lawyer's services, in violation of Rule
7.1 (Counts I-IV); engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4) (Counts I-IV); engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) (Counts I-IV); and engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770 (Counts I-IV). The Respondent admitted most of the factual allegations against him but denied all allegations of misconduct.
The Hearing Board found that the Administrator proved the charges of breach of fiduciary duty, failing to explain matters sufficiently to allow clients to make an informed decision about the representation, entering into business transactions with clients without obtaining their consent after full disclosure, representing clients when the representation was materially limited by the Respondent's own interests without consent after full disclosure, failing in three matters to keep clients reasonably informed about the status of the matter and to promptly comply with their requests for information, and engaging in conduct that brings the legal profession into disrepute.
The Hearing Board found insufficient proof of undue influence, overreaching, false or misleading advertising, dishonest conduct, and conduct prejudicial to the administration of justice. The Hearing Board recommended that the Respondent be censured and required to attend the Illinois Institute of Professional Responsibility.
This matter comes before the Review Board on the Administrator's exceptions. He contends that he sufficiently proved the charges of overreaching, undue influence, false or misleading advertising, and dishonest conduct. The Administrator contends that the Respondent's misconduct warrants a six-month suspension.
The Respondent was licensed to practice law in 1983. He concentrates his practice in residential real estate closings.
The charges in this case arise from the Respondent's representation of clients in four closings that took place between 2003 and 2005. At all relevant times, the Respondent owned a company called Title Fees, LLC (Title Fees), which was a title agency for Metropolitan Title Company. He also had a financial interest in a survey company named We Survey, LLC (We Survey).
The Illinois Title Insurance Act, 215 ILCS 155/18(b), requires an attorney who represents a party in a real estate transaction and also acts as a title agent to disclose that relationship in writing and to obtain the client's written consent on a form called the Controlled Business Arrangement Form (CBAF).
The Respondent sent 1,000 to 3,000 advertisements per month to individuals in the Chicago metropolitan area, stating that he would provide representation in a real estate transaction for a low fixed legal fee. He was able to charge lower legal fees than other attorneys because he received additional fees at closing through Title Fees and We Survey.
Thomas Britain received one of the Respondent's advertisements in the mail. It stated, in part, "Our specialized law firm will close your home sale for a fixed legal fee of $175."
In a separate boxed area, the advertisement stated:
Start to Finish
At One Affordable Low Fee
Buyer/Seller negotiations thru closing
Title Order and Review
Complete Document Preparation
Schedule and attend closing as your legal representative
After receiving the advertisement, Britain contacted the Respondent to discuss the sale of his home in St. Charles. Britain wanted to minimize his costs and asked the Respondent what the total closing fees and costs would be. The Respondent told Britain that his total fee would be $2,540.50, which included $1,233.00 for title services, $300.00 for the survey, $832.50 for transfer stamps, and $175.00 for legal fees. Britain agreed to those fees, and the Respondent agreed to represent Britain in the sale of his home.
Three days before the closing, the Respondent's assistant, Nancy Jalovecka, told Britain that his payment to the Respondent would be $4,060.32. When Britain asked Jalovecka why the amount had increased from the $2,540.50 in fees that the Respondent had quoted earlier, Jalovecka said that there was a shortage of escrow funds needed to pay the property taxes. She told Britain that the Respondent would not be available to speak to him until after the closing.
On October 27, 2003, the Respondent attended the closing and represented Britain through a power of attorney. Britain reviewed the RESPA Settlement Statement after the closing and determined that, in addition to the $175.00 in legal fees that the
Respondent received, he received $498.00 in additional fees. The additional fees included a $65.00 later date fee, a $288.00 fee for title review, a $50.00 fee for the power of attorney, and a fee of $395.00 for the survey, which was $95.00 more than the survey fee that the Respondent had previously quoted.
Britain testified that the Respondent did not tell him that he had a financial interest in Title Fees and would receive additional fees at the closing. The Respondent testified that he made that disclosure to Britain orally before Britain signed the title commitment. The Respondent signed the CBAF on Britain's behalf under a power of attorney. Britain further testified that the Respondent did not disclose his financial interest in We Survey, nor did he advise Britain that he could have used other survey or title companies.
Britain testified that he called the Respondent's office every weekday between October 28, 2003, and November 7, 2003, to discuss the additional fees. The Respondent did not return Britain's calls or otherwise communicate with him. At the time of the hearing, Britain had not received a refund from the Respondent.
The Respondent admitted that he did not disclose to Britain that a conflict of interest could arise as a result of his financial interests in Title Fees and We Survey. He did not advise Britain to seek independent legal advice prior to the closing, or tell him that he could obtain title insurance and a survey from other companies.
The Respondent sent an advertisement to John Gedwill which stated in relevant part that his firm "will charge a fixed legal fee of $100.00 for legal representation on your home sale." The advertisement further stated as follows:
We are commonly asked if we do everything those "other firms" do. Our response is that we believe we do much more than those other firms do, we just do it for considerably less. For example, we assist home sellers with all aspects of their home closing, including contract negotiations, home inspection issues, ordering, preparation and review of all closing documentation and other necessary closing papers, ordering of surveys, title insurance, post- closing and pre-closing possession agreements, powers of attorney, pre-signing documents, walk-thru issues, scheduling and attending the closing and much more. In fact, if you are not completely satisfied with your closing we will waive our legal fee.
On March 3, 2004, Gedwill, who was a real estate agent, contacted the Respondent about representing him in the sale of his Warrenville home. He and the Respondent agreed that the Respondent would represent him for a fixed legal fee of $100.00.
Gedwill attended his closing with the Respondent on March 31, 2004. At that time, Gedwill signed a CBAF which indicated that the Respondent had a financial interest in Metropolitan Title Company, Title Fees, and We Survey. Prior to the closing, the Respondent made no disclosures to Gedwill about those interests, or about the potential conflicts of interest that could arise as a result of those interests. The Respondent did not advise Gedwill to seek independent legal advice or tell him that he was not required to use Metropolitan Title Company, Title Fees, and We Survey.
At the closing on Gedwill's property, the Respondent received additional fees of $1,737.00, which included $989.00 for title insurance, $288.00 for title review, $65.00 for later date fees, and $385.00 to We Survey for the survey. After the closing, Gedwill felt that the title insurance and survey fees were high and called the Respondent to discuss them. After Gedwill made about ten calls to the Respondent that were not
returned, the Respondent finally spoke to Gedwill and asked if he wanted his money back. The Respondent refunded $1,737.00 to Gedwill shortly before the hearing.
Douglas Conway received an advertisement from the Respondent that stated in relevant part:
The sale of your home can be very expensive. You can easily spend up to $500.00 for a qualified attorney to close on your home. However, you don't have to spend that much to get expert legal assistance. Our fee for representation at a home sale is only $145.00
We are commonly asked if we do everything those "other firms" do. Our response is that we believe we do much more than those other firms do, we just do it for considerably less. For example, we assist home sellers with all aspects of their home closing, including contract negotiations, home inspection issues, ordering, preparation and review of all closing documentation and other necessary closing papers, ordering of surveys, title insurance, post closing and pre closing possession agreements, powers of attorney, pre-signing documents, walk-thru issues, scheduling and attending the closing and much more. In fact, if you are not completely satisfied with your closing we will waive our legal fee.
After receiving the Respondent's advertisement, Conway spoke to the Respondent about representing him on the sale of his condominium. Conway testified that the Respondent said his fee was "all inclusive." The Respondent did not tell Conway that he would charge additional fees for title review and preparing a power of attorney. He did not disclose his financial interest in Title Fees to Conway, nor did he advise Conway of the potential conflict of interest that could result from his interest in Title Fees. The Respondent did not advise Conway to seek independent legal advice.
After the closing, Conway called the Respondent because he felt that some of the fees were too high. The Respondent told him that they were standard fees.
Conway asked for a refund. Shortly before the hearing, the Respondent sent Conway a check for $353.00. Conway testified that that amount was not sufficient to make him whole.
In 2003, Santos Turcios retained the Respondent to represent him in the sale of a property in North Chicago. The Respondent had represented Turcios in two previous closings in 2000 and 2001. He charged Turcios $195.00 in legal fees in each of the first two closings. In 2003, the Respondent quoted Turcios a fee of $175.00. Turcios told the Respondent that he could pay no more than $250.00 for the survey, because he knew that was what a survey cost.
At the closing on August 15, 2003, Turcios noticed that there were extra charges, including a $188.00 fee for title review, a $395.00 fee for the survey, and a title preparation fee of $294.00. Turcios asked the Respondent about the additional fees, and the Respondent told him to just sign the documents. Turcios called the Respondent after the closing because he wanted an explanation of the charges. The Respondent told him there was nothing he could do and would not refund any money to Turcios. In May 2008, the Respondent sent Turcios a check for $877.00.
Turcios testified that the Respondent did not disclose his interests in Title Fees and We Survey. He did not advise Turcios that a conflict of interest could arise from his interests in Title Fees and We Survey, or that Turcios should seek independent legal advice.
THE RESPONDENT'S TESTIMONY
The Respondent testified that the fee that was specified in his advertisements was strictly a legal fee which did not include other fees connected with the closing.
The Respondent believed that the survey fees charged by We Survey were "within the realm of reasonableness," and that the title fees he received were not excessive. He testified that all of the closing fees in the aggregate were more competitive than what others charged.
The Administrator presented attorney Joseph Fortunato as an expert in real estate law. With respect to the Respondent's interests in Title Fees, Fortunato testified that since 1997 the Illinois Title Insurance Act has required attorneys who act as title agents to disclose that relationship and obtain a client's written consent on a Controlled Business Arrangement Form (CBAF). Fortunato testified that the CBAF should be disclosed to the client before the title commitment issues. If the client does not consent, then the attorney should not act as the title agent. Fortunato further testified that an attorney who has an interest in a survey company has a duty to disclose that relationship to his client and to obtain his client's consent before using the survey company.
With respect to the Respondent's advertisements, Fortunato testified that they were deceptive because they did not advise prospective clients that the Respondent would charge extra for preparing a power of attorney or performing a title review. Title review should have been included in the title insurance process and power of attorney
preparation should have been included the Respondent's legal fee. Thus, in Fortunato's opinion, those fees were improper.
EVIDENCE IN MITIGATION
The Respondent presented attorneys Roger White, Elbert Reniva, and Thomas Howard, who testified that the Respondent has a good reputation for honesty and integrity in the legal community.
The Respondent testified that he performs about twelve hours of pro bono work per month, giving legal advice to people who call him with real estate questions. He donates money to his church and to other religious organizations.
The Respondent attributed his delays in returning clients' calls to his divorce proceedings. He also had serious health problems in 2002 and 2003.
He expressed remorse for his conduct and, prior to the hearing, sent refunds to Britain, Gedwill, Conway, and Turcios.
The Respondent testified that he has changed his practice since the Administrator filed a complaint against him. He has ended his affiliation with We Survey and is associated with a different title company, City Suburban Title Company. He now includes in his advertisements a statement that there is a potential conflict of interest when an attorney who handles a closing also acts as the title agent.
Between 1998 and 2000, the Respondent received two inquiry letters from the Administrator about his advertisements. He responded to the letters and was not charged with any misconduct. The Respondent testified that the fact that complaints were not filed against him gave him the impression that his advertisements complied with the Rules of Professional Conduct.
EVIDENCE IN AGGRAVATION
The Respondent's clients testified that their experience with him caused them to be suspicious and distrustful of lawyers. They stated that they were harmed financially because the Respondent charged them excessive fees.
Joseph Fortunato testified that the Respondent's reputation in the legal community is "uniformly poor."
The Administrator bears the burden of proving the charges of misconduct by clear and convincing evidence. In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560 (2004). We defer to the Hearing Board's factual findings and will not disturb them unless they are against the manifest weight of the evidence. In re Winthrop, 219 Ill.2d 526, 542, 848 N.E.2d 961 (2006). A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Winthrop, 219 Ill.2d at 542, 848 N.E.2d 961. Our review of the Hearing Board's legal conclusions, including whether the facts found constitute professional misconduct, is de novo. In re Discipio, 163 Ill. 2d 515, 527, 645 N.E.2d 906 (1994).
First, we address the charges of overreaching and undue influence. The Hearing Board found insufficient evidence of these charges because the Respondent's four clients, Britain, Gedwill, Conway, and Turcios, were educated and sophisticated and discussed the representation with the Respondent. The Administrator contends that the Hearing Board's findings on these charges were erroneous as a matter of law.
Because of an attorney's fiduciary obligation to his client, the Supreme Court has held that a transaction involving an attorney and a client is subject to close
scrutiny. "The measure of good faith which an attorney is required to exercise in all his dealings with his client is a much higher standard than is required when the parties deal with each other at arm's length." In re Schuyler, 91 Ill.2d 6, 11, 434 N.E.2d 1137 (1982).
Overreaching occurs when an attorney takes advantage of the position of the influence that he naturally holds vis-à-vis a client in order to derive a benefit for himself. In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1997). A presumption of undue influence arises when an attorney benefits from a business transaction with a client during the existence of an attorney-client relationship. In re Marriage of Pagano, 154 Ill. 2d 174, 185, 607 N.E.2d 1242 (1992). The burden lies with the attorney to overcome the presumption by clear and convincing evidence. To do so, the attorney must show that the transaction was fair, equitable, and just, and did not proceed from undue influence. Pagano, 154 Ill. 2d at 185, 607 N.E.2d 1242. Important factors in rebutting the presumption include but are not limited to whether (1) the attorney fully disclosed all of the relevant information to the client, (2) the client received adequate consideration, and (3) the client had independent advice before completing the transaction. Schuyler, 91 Ill. 2d at 15-16, 434 N.E.2d 1137.
There is no dispute that the Respondent owed a fiduciary duty to each of his clients and that he entered into a business transaction with each of them during the course of the attorney-client relationship. By collecting title and survey fees in each of his client's real estate closings, the Respondent undeniably benefited from each of the transactions. Based on the foregoing evidence, the Hearing Board should have applied the presumption of undue influence to the transactions at issue. The burden was the
Respondent's to prove the transactions were fair, equitable, and just by clear and convincing evidence.
The Respondent argues that the transactions were fair because the title insurance and survey fees that he charged were, in his opinion, competitive within the industry. This argument fails for several reasons. First, the Respondent's uncorroborated belief that his fees were competitive is not, by itself, sufficient to rebut the presumption of undue influence. Moreover, the Respondent's argument misses the point that he used his position of trust to manipulate the closing process to insure that he, rather than his competitors, would receive the title insurance and survey fees for each transaction. Had the Respondent disclosed his interests, it is possible that his clients would have chosen a different provider for those services and the Respondent would not have received those additional fees.
In addition, the fact that the Respondent's clients received services from Title Fees and We Survey does not overcome the Respondent's failure to disclose all of the relevant information to his clients or to advise them to seek independent legal advice. The Respondent's clients could not have been on equal footing with the Respondent with respect to negotiating the closing fees, as they had no knowledge that the Respondent would be receiving title and survey fees in addition to his legal fee. The Hearing Board found the attorney-client relationship existed and that the Respondent breached his fiduciary duty by his failures to disclose his business interests in the closing transactions. For all of these reasons, we conclude that the Respondent did not rebut the presumption of undue influence. Therefore, we reverse the Hearing Board on this issue and find that the Administrator proved the charges of overreaching and undue influence.
We note that a review of the Hearing Board's recommendation and the transcript of the hearing reveals no mention of the shift of the burden to the Respondent once the presumption is established. The failure of the Hearing Board to identify this issue is a matter of law. Because the issue was not addressed and no findings of fact were made with respect to that issue, we have made them pursuant to our authority under Supreme Court Rule 753(d)(3). It might be helpful in the future for the Administrator's counsel to raise the issue of the shift of the burden of proof to the Hearing Board when the law calls for a presumption of undue influence and evidence is produced to support the elements of such a presumption rather than, as in this case, to first raise the issue of law on review.
Next, we address the false advertising charge. The Hearing Board found that the Respondent's advertisements were confusing but not false or misleading because each client had a meaningful discussion with the Respondent about his fees and services. The Administrator argues that the Respondent advertised an all-inclusive low fee but in fact charged his clients extra for services that should have been included, such as preparing a power of attorney or performing a title review. The Respondent admits that his advertisements were confusing but contends that they did not promise that the low legal fee encompassed all of the listed services.
Rule 7.1 prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." Rule 7.1(a).
We apply de novo review to the question of whether the Respondent's advertisements were false or misleading on their face, as the contents of the advertisements are not in dispute and the issue we must decide is whether the undisputed facts establish a violation of Rule 7.1.
Unlike the Hearing Board, we conclude that the Respondent's advertisements were textbook examples of false or misleading advertising. The Respondent promised a low fixed legal fee for closing services but did not honor that promise. The advertisement received by Thomas Britain offered "Complete Start to Finish Closing Services at One Affordable Low Fee Including Buyer/Seller negotiations thru closing, Contract Review, Survey Order, Title Order and Review, Complete Document Preparation, Schedule and attend closing as your legal representative." The only reasonable interpretation of this statement is that the listed services were included in the Respondent's "one affordable low fee." The Respondent, however, charged Britain extra for title review and preparation of a power of attorney.
The Respondent contends that some of the listed services were included in his legal fee, while others were not. The advertisement does not support the Respondent's interpretation. There is absolutely nothing on the face of the advertisement that would alert clients to the fact some of the listed services were not included in the "one affordable low fee" or differentiate between the services that were included and those that were not. In an effort to generate business, the Respondent's advertisement materially misrepresented the amount of his fee and omitted facts that would be necessary for a client to ascertain what services were included in the Respondent's legal fee.
The advertisements received by John Gedwill and Douglas Conway were similarly misleading. Both advertised a low legal fee and listed numerous services related to real estate closings that the Respondent's firm purportedly did for a "fixed legal fee" that was "considerably less" than other law firms. A reasonable person reading these advertisements would be led to believe that the legal fee included the listed services. The advertisements did not inform Gedwill or Conway that the low legal fee did not include title review or preparation of a power of attorney and that they would be charged additional fees for those services. For these reasons, the advertisements sent to Gedwill and Conway violated Rule 7.1 as well.
The Hearing Board's finding that the Respondent and his clients had meaningful discussions about his fees does not remedy the false and misleading nature of the advertisements. Any subsequent communications do not alter the fact that the Respondent used improper advertisements to attract business that otherwise may have gone to another attorney. The Rules of Professional Conduct do not allow such "bait and switch" practices.
Last, the Administrator argues that the Respondent's actions were inherently deceitful and the Hearing Board's finding to the contrary was against the manifest weight of the evidence. The Hearing Board found that the Respondent did not intend to deceive his clients, nor did he make any misrepresentations to them.
We recognize that the Hearing Board is in a superior position to judge a respondent's motive and intent (In re Spak 188 Ill. 2d 53, 719 N.E.2d 747, 754, 241 Ill. Dec. 618 (1999)). However, our determination that the Respondent's advertisements were misleading, in conjunction with all of the other circumstances, lead to the clearly
evident conclusion that the Respondent engaged in a pattern of dishonest behavior designed to increase the amount of fees he received from each client.
Contrary to the Hearing Board, we have concluded that the Respondent's advertisements contained misrepresentations. Rule 8.4(a)(4) prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. Thus, under the facts of this case, a finding that the Respondent violated Rule 8.4(a)(4) inherently flows from the finding that he sent out false advertisements with no intention of honoring the promises made therein.
The following evidence further established the Respondent's dishonesty. He did not timely disclose his relationships with We Survey and Title Fees or inform the clients of the additional legal fees he was charging. Thus, clients could not object to the potential conflicts of interest or the additional fees without jeopardizing their closings. On some occasions, the Respondent, through his power of attorney, signed the CBAF form on the client's behalf, so the client had no knowledge until after the closing that the Respondent had interests in We Survey and Title Fees. When the Respondent's clients called him both before and after their closings to discuss his fees, the Respondent, on most occasions, did not return their calls. When the Respondent did discuss his fees with a client prior to the closing, as in the case of Britain and Turcios, the Respondent later charged more than he and the client had previously agreed upon.
Dishonesty has been broadly defined as a "disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity." In re Meyer, No. 01 SH 81 (Review Board, April 15, 2004) at 6, petition for leave to file exceptions denied, No. M.R. 19491 (Sept. 24, 2004). There is no innocent explanation for the Respondent's actions or his failures to disclose material information to his clients. These disclosures are required by specific
legislation as well as the rules governing lawyers in this state. Looking at the evidence as a whole, the only conclusion we can reach is that the Respondent made misrepresentations and engaged in conduct that was untrustworthy and lacking in integrity for his own financial gain. Consequently, we reverse the Hearing Board's finding that the Administrator did not prove violations of Rule 8.4(a)(4) and find that the the Administrator proved those charges by clear and convincing evidence.
The Hearing Board recommended that the Respondent receive a censure. The Administrator argues that he should be suspended for six months. The Hearing Board's sanction recommendation is advisory. In re Hopper, 85 Ill.2d 318, 323, 423 N.E.2d 900 (1981).
When making a sanction recommendation, we consider all of the relevant circumstances, including the nature of the misconduct and the factors in aggravation and mitigation. In addition to evaluating the particular circumstances of each case, we strive to recommend a sanction that is consistent with sanctions imposed in cases involving similar misconduct. See In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). The purpose of a sanction is not to punish a respondent, but to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice. In re LaPinska, 72 Ill. 2d 461, 473, 381 N.E.2d 700 (1978).
In light of our determination that the Respondent engaged in misconduct beyond that which the Hearing Board found, a censure is not appropriate. For the following reasons, we recommend that the Respondent's license be suspended for five months.
The Respondent purposefully engaged in misconduct for his own financial benefit. Misconduct of this type is especially harmful to the reputation of the legal profession. The Respondent demonstrated a complete disregard for his ethical obligations as well as his obligations under the Title Insurance Act, which is inexcusable for an attorney who has specialized in real estate transactions for twenty years.
The Respondent's misconduct is aggravated by the fact that he caused financial harm to his clients and engaged in a pattern of misconduct. See In re Lewis, 138 Ill.2d 310, 343, 562 N.E.2d 198 (1990). The Respondent had a high-volume practice, which leads us to the reasonable assumption that his misconduct affected far more clients than the four individuals involved in this matter.
In mitigation, the Respondent has no prior discipline, expressed remorse for his misconduct and made restitution to his clients shortly before his hearing. He is involved in his church and performs some pro bono services. He presented positive character testimony from three attorneys, although the Administrator presented evidence from his expert that the Respondent's reputation for honesty and professionalism is poor.
Our research has not revealed any case with facts similar to this one. However, the following cases are instructive in determining our sanction recommendation.
Attorneys who have made false statements in advertisements have received suspensions of one to two months. See In re Brown, 01 CH 62, petition to impose discipline on consent allowed, No. M.R. 18116 (May 24, 2002) (two-month suspension); In re Brody, 92 CH 224, petition to impose discipline on consent allowed, No. M.R. 8349 (May 27, 1992) (one-month suspension). A greater sanction is warranted
if, as here, clients rely on the false advertisements to their detriment. See Brown, 01 CH 62; In re Sciblo, 04 CH 97, petition to impose discipline on consent allowed, No. M.R. 20399 (Nov. 22, 2005) (one-year suspension stayed after 30 days by probation).
Attorneys who are found to have engaged in conflicts of interest and acted dishonestly have also been suspended. In In re Gearhart, 98 SH 2, (Review Board, Oct. 30, 2006), petition for leave to file exceptions denied, No. M.R. 21335 (Mar. 19, 2007), the respondent represented both the buyer and the seller in a real estate transaction. He revealed client confidences and made false statements in a pleading. Gearhart had previously received a censure for engaging in a conflict of interest. He received a six-month suspension.
In In re Kaeding, 03 CH 30, petition to impose discipline on consent allowed, No. M.R. 19208 (Mar. 12, 2004), the respondent acted as both the real estate broker and the attorney for his clients' purchase of two condominiums, in violation of the Illinois Real Estate Act. Kaeding did not advise his clients that he was prohibited from acting as both their broker and their attorney, nor did he advise them of the potential conflict of interest that could arise from his dual role. He engaged in overreaching, a conflict of interest, and dishonest conduct. Kaeding had no prior discipline and made restitution to his clients. He was suspended from the practice of law for ninety (90) days.
In this case, a suspension is warranted to protect the public, maintain the integrity of the legal profession, and deter the Respondent and others from committing similar misconduct in the future. Our consideration of the Respondent's misconduct, all of the relevant factors, and the foregoing case law leads us to recommend a five-month suspension.
We reverse the Hearing Board's findings of no misconduct with respect to the charges of overreaching, undue influence, false and misleading advertisements, and dishonest conduct, and find that the Administrator proved those charges by clear and convincing evidence. We affirm the Hearing Board's remaining findings of misconduct and recommend that the license of Andrew Joseph Rukavina be suspended for five months. We further recommend that the Respondent attend the Illinois Institute of Professional Responsibility during his period of suspension.
Dated: 18 November 2009
Stuart R. Lefstein