Filed December 31, 2008

In re Donald P. Lasica
Commission No. 07 CH 125

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) conversion; 2) breaching fiduciary obligations; 3) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 6) engaging in conduct that is prejudicial to the administration of justice; 7) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: 8.4(a)(4), 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Disbarment.

DATE OF OPINION: December 31, 2008.

HEARING PANEL: Debra J. Braselton, James P. Fieweger, Mark Fitzgerald.

RESPONDENT'S COUNSEL: Warren Lupel.

ADMINISTRATOR'S COUNSEL: Meriel Coleman.

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

In the Matter of:

DONALD P. LASICA,

Attorney-Respondent,

No. 1585002.

Commission No. 07 CH 125

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on October 6, 2008 at the offices of the Attorney Registration and Disciplinary Commission, 130 East Randolph, Chicago, Illinois before a hearing panel consisting of Debra J. Braselton, Chair, James P. Fieweger, and Mark Fitzgerald. Meriel Coleman represented the Administrator of the Attorney Registration and Disciplinary Commission. Respondent Donald P. Lasica appeared and was represented by Warren Lupel.

PLEADINGS

On December 18, 2007, the Administrator filed a one-count Complaint against Respondent alleging that he breached his fiduciary obligations and converted approximately $77,000 in connection with his handling of an estate.

In his answer to the Complaint, Respondent admitted many of the factual allegations but denied engaging in any professional misconduct.

THE EVIDENCE

The Administrator presented the evidence deposition of Brian Gancarcyzk and twenty-four exhibits, which were admitted into evidence. Respondent testified on his own behalf, called William Gancarcyzk as a witness, and submitted one exhibit.

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Undisputed Allegations

On May 8, 2002, Ann M. Mietlicki (hereinafter "Mietlicki") died intestate in Lyons Township, Illinois. At the time of Mietlicki's death, the value of her estate was at least $99,000 and the estate's primary asset was a house. Kerry Czarnecki was named independent administrator of Mietlicki's estate. The sole beneficiary of the estate was Mietlicki's grandson, Brian Gancarcyzk ("Brian").

In or around June 2002, Respondent agreed to represent Czarnecki in matters relating to Mietlicki's estate. At that time, Respondent requested and received payment of a $5,000 retainer, against which he agreed to bill for services he provided to the estate.

On June 18, 2002, Respondent filed a Petition for Probate of Mietlicki's estate and for letters of administration in the Circuit Court of Cook County. Thereafter, in November 2002, Respondent represented the Mietlicki estate in the sale of Mietlicki's house, which sold for $110,000.

On or around November 27, 2002, Respondent received check number 8231050817 from Greater Illinois Title Company for the amount of $99,000.10, which represented the funds due Mietlicki's estate from the sale of the house after taxes and other charges were assessed. The check was deposited into Regency Savings Bank account number 30213050, entitled "Donald P. Lasica, escrowee for Brian Gancarcyzk" (the "escrow account"). (Adm. Ex. 1)

Between November 26, 2002 and December 2, 2002, with approval of the court, Respondent disbursed $10,757.38 to Estelle Czernecki as reimbursement for payments that she previously made to pay for Mietlicki's funeral, and $930 to Weinstein & Ryan as compensation for bond services provided to Kerry Czarnecki. After making those disbursements, Respondent

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should have been holding at least $87,312.72 on behalf of Brian Gancarcyzk, the sole heir of Mietlicki's estate. (Adm. Ex. 2).

As the attorney for Mietlicki's estate, Respondent had a fiduciary relationship with Brian Gancarcyzk and the Mietlicki estate requiring him to exercise at all times the highest degree of honesty, loyalty, and good faith regarding his handling of the estate's property. As a consequence of his fiduciary duty and relationship, Respondent was prohibited from engaging in actions that gave preference to his own business and personal interests over the interests of Brian Gancarcyzk and the Mietlicki estate.

Between November 27, 2002 and February 20, 2004 the following disbursements were made from the escrow account:

Check Number

Date

Amount

3

11/29/2001

$500.00

4

11/29/2002

500.00

2

11/27/2002

2,500.00

7

12/03/2002

1,000.00

101

12/02/2002

1,000.00

102

12/18/2002

1,000.00

103

12/20/2002

500.00

104

12/20/2002

500.00

107

12/30/2002

1,750.00

105

12/27/2002

500.00

106

12/27/2002

1,000.00

110

1/07/2003

1,100.00

108

1/16/2023

500.00

123

2/07/2003

500.00

122

2/14/2003

750.00

124

2/20/2003

750.00

125

2/28/2003

1,500.00

126

3/13/2003

1,000.00

127

3/14/2003

1,000.00

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Check Number

Date

Amount

128

3/21/2003

1,000.00

129

3/31/2003

1,000.00

130

3/31/2003

2,000.00

131

4/04/2003

1,000.00

132

4/09/2003

1,000.00

133

4/10/2003

1,000.00

134

4/12/2003

500.00

135

5/02/2003

2,000.00

136

5/08/2003

2,500.00

137

5/14/2003

1,000.00

138

6/03/2003

7,500.00

139

6/11/2003

2,000.00

140

6/23/2003

300.00

2714

9/09/2003

7,200.00

2790

11/07/2003

5,300.00

Official Bank Ck

2/20/2004

10,924.22

Total:

$78,074.22

(Adm. Ex. 2-16, 20).

Brian Gancarcyzk

Brian Gancarcyzk ("Brian"), an inmate of Pontiac Correctional Center in Pontiac, Illinois, testified in an evidence deposition that he has been incarcerated since February 1994 for aggravated arson and murder. He was previously convicted for arson, battery, and driving under the influence. His projected parole date is 2031. (Dep. Tr. 5, 15-16).

Brian stated that, during the time of his incarceration, his grandmother died and he became the sole heir to her estate. Brian's aunt, Georgia Czarnecki, hired Respondent to handle the estate. Brian has never met Respondent in person but has spoken to him on the telephone approximately ten times. Brian has no relatives other than his aunt and his father, and he described his relationship with them as being "not too hot." (Dep. Tr. 5-6, 11-12, 18).

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Brian testified that his grandmother's estate consisted of a house that was sold for $99,000. Following the sale, Brian sent letters to Respondent explaining how he wanted the proceeds from the sale to be invested. In a letter of October 24, 2002 Brian expressed distrust for his aunt and uncle, and requested that Respondent place the proceeds from the house into certificates of deposit (CDs). Brian's distrust of his aunt and uncle stemmed from the fact that he had asked them to purchase CDs and they had not done so. Brian recalled that Respondent disagreed with his request, and instead mentioned a money market account. On November 4, 2002 Brian wrote another letter to Respondent explaining his preference for the money to be deposited into CDs. (Dep. Tr. 7-9, 22-25; Adm. Ex. 22).

On January 15, 2003 Brian sent a letter to Respondent in which he reiterated his concern about the proceeds from the sale of the house. At that time Brian felt Respondent was focused on a money market account, and was not listening to his requests. Brian initially testified that Respondent never purchased any CDs as directed but, on cross examination, he stated he did not know whether any CDs had been purchased. (Dep. Tr. 12-13, 22).

Brian stated that during the time he has been in prison, he has received $70 each month from his father. Brian believed the money came from his father's own pocket, and not from Respondent. (Dep. Tr. 25).

As to the ultimate disposition of the estate funds, Brian stated he received $950 for spending at the prison commissary, he gave $5,000 to his aunt as a gift, his father received $54,000, $6,000 was paid for a broker's commission, and the remainder was used for taxes and Respondent's fees. Brian stated he did not know the amount of Respondent's fees to represent the estate. Although he asked for an itemized bill, Respondent never provided one. (Dep. Tr. 13-14, 17, 20).

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Brian denied authorizing Respondent to use any funds for his own purposes, denied agreeing to loan money to Respondent, and denied being informed by Respondent that Respondent used or borrowed any of the money. Brian acknowledged that he authorized Respondent to give some money to Brian's father as reimbursement for legal fees his father paid in connection with Brian's criminal case. Brian believes Respondent still has $2,800 of his funds, but acknowledged that could be the amount of Respondent's fee. (Dep. Tr. 10-11, 17).

Brian's letters to Respondent

Twenty-nine handwritten letters from Brian to Respondent spanning the time period from September 23, 2002 to January 13, 2004 were admitted into evidence. In the letters Brian repeatedly expressed concern about protecting his money, and requested that Respondent purchase CDs with the proceeds of the sale of the house. None of the letters contain any reference to a loan to Respondent or to Respondent's use of the funds for personal purposes. (Adm. Ex. 22).

In a letter dated February 3, 2003 Brian told Respondent he was worried and felt "left in the dark" as to Respondent's plans for setting up his money. Brian stated at that time that he did not want his father to handle his money. Months later, in a letter dated September 5, 2003, Brian advised Respondent that he decided to have his father control his financial affairs, and asked Respondent, upon receiving Brian's letter and power of attorney contract, to prepare an itemized list of bills and a check for his father for the remaining sum of money. Thereafter, he wrote additional letters to Respondent indicating that the funds should be turned over to William. (Adm. Ex. 22). AX 22

Several letters addressed the subject of Respondent's fees. On October 16, 2002, January 4, 2003, and February 3, 2003 Brian asked Respondent to advise him as to the amount of

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Respondent's fees. In June 2003 Brian requested that Respondent reimburse William for $2,000 paid to University Research Dept in Birmingham, Michigan for legal work relating to a reduction of Brian's sentence. In a subsequent letter he explained that he did not ask Respondent to handle the matter because Respondent's fees would be too high and he was trying to spend as little as possible. In September and October 2003, Brian was still asking Respondent for an itemized bill and a list of all expenses associated with the sale of Mietlicki's house, which had occurred approximately one year earlier. (Adm. Ex. 22).

William Gancarczyk

William Gancarczyk ("William") testified that his late wife was the daughter of Ann Mietlicki. William's son Brian, who is currently serving a seventy-five year sentence in the Illinois State Penitentiary for arson and murder, is Mietlicki's grandson and sole heir to Mietlicki's estate. According to William, his son's financial needs are not more than "a couple hundred here, a couple hundred there." (Tr. 13-15).

William testified that Respondent was hired by Brian's aunt, but William agreed to the decision. When William called Respondent to discuss Mietlicki's estate in November 2002, they agreed that Respondent's fee for handling the real estate closing, probating the estate, and taking care of post-estate matters would be about 10% of the estate, or around $10,000. During their discussion William verbally authorized Respondent to use some of the funds belonging to the estate. William understood that the total amount would be repaid to Brian, at an interest rate of "eight, nine, or ten percent." Upon further questioning, William stated the interest rate was ten percent and he assumed it would only kick in if the loan was not repaid in "a year or two." William stated that the agreement was not in writing and no promissory note was signed. (Tr. 18, 22-25, 29, 32).

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When questioned about his authority, in November 2002, for agreeing to a two-year interest free loan to Respondent, William stated he assumed the transaction would be problem free and further, he was speaking to Brian on the telephone during that time. He acknowledged that, at that early date, he did not totally understand everything involved in the selling of the house. William denied that Respondent ever took money from the estate without his knowledge or consent. (Tr. 18, 25-26).

William identified a document entitled "Illinois Statutory Short Form Power of Attorney for Property," which appoints William as attorney in fact for Brian, and grants to William "power and control over the finances from the sale of [Brian's] deceased grandmother (Ann Mietlicki) estate case No. 02 P 004856." The document, dated September 5, 2003, purports to be signed by Brian. William testified he and his son had discussed the document, and William received it about the time it is dated. He further stated that he and his son have remained in contact and the power of attorney is still in effect. (Tr. 15-16, 21; Resp. Ex. 1).

William stated he received $54,000 from Respondent in February 2004, and he invested the funds in a house under his and Brian's names. William was aware that Respondent also paid out the following amounts from the funds he was holding: $10,757 to Estelle Czarnecki for Mietlicki's funeral expenses, $5,000 to Brian's aunt Georgia Czarnecki, $1,200 to Brian for his commissary account, $500 for Brian's eyeglasses, and additional amounts to William over a period of time. William testified that he and Respondent have determined that Respondent currently owes Brian between $7,000 and $8,000, excluding interest. With interest, the amount is $10,000. (Tr. 19-21, 19).

In October 2004 William submitted a written request to the ARDC for investigation of Respondent's failure to turn over funds. In the request William stated that Brian wanted his

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money to be invested so he would have funds when he was released from prison, and Respondent had not provided an accounting of the estate or turned over all of the funds. William explained that he submitted the ARDC request because he did not understand how the "payback" would work, and he thought Respondent was not making repayment quickly enough. He acknowledged he did not inform the ARDC that he had authorized Respondent to borrow money from Brian's funds. When asked why he did not include that fact, he stated he should have written it down, but failed to do so. (Tr. 22-23, 26, 28-29; Adm. Ex. 24).

On cross-examination, William stated that his purpose in submitting the request to the ARDC was to obtain an accounting from Respondent, which he received. His request did not assert that Respondent had taken any money without his consent. At the time he wrote the request he became aware that Respondent was having financial problems and was concerned about receiving the remainder of the funds. He later realized that Respondent would make repayment in a timely fashion. (Tr. 30, 33).

Respondent

Respondent, a licensed attorney in Illinois since 1975, testified that his practice consists primarily of real estate and probate matters. He has been married for thirty-eight years and at the time of the events at issue, his wife was employed as a teacher. At the time of the hearing, she was no longer employed. (Tr. 65)

In May 2002 Respondent learned of the death of Ann Mietlicki from Georgia Czarnecki, a long-time acquaintance. Respondent agreed to handle Mietlicki's estate, and proceeded to prepare an affidavit of heirship and file the appropriate pleadings in probate court to have the estate opened. The administrator of the estate was Kerry Czarnicki. Respondent stated that his

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fee was $5,000, which he believed was paid from a joint account that Georgia Czarnecki maintained with Mietlicki. The fee agreement was not reduced to writing. (Tr. 35-37, 47, 69).

Respondent testified that the sole asset of Mietlicki's estate was a house and after it was sold, he deposited the proceeds into an escrow account for the benefit of Brian Gancarczyk, the sole heir of the estate. Thereafter, with Brian's consent, Respondent paid a $10,737.38 claim against the estate for funeral expenses. (Tr. 36-37; Adm. Ex. 1).

In November 2002 Respondent was contacted by Brian's father, William, concerning the estate. At that time Respondent knew his law license was going to be suspended as a result of his conversion of funds from another estate. Respondent told William of his impending suspension and anticipated financial problems, and asked William if he could use funds from Mietlicki's estate and then repay them. William replied that he would have to talk to Brian and would get back to Respondent. Respondent stated that, after meeting William, they quickly developed a friendship. (Tr. 38, 44-45, 60).

Respondent testified that, after his conversation with William, he spoke to Brian on a couple of occasions and they discussed Respondent's request to use the funds. At that time Brian advised Respondent that he wanted to talk to his father. In December 2002, Respondent spoke to William again and they agreed Respondent would be able to use the funds and make repayment on demand. In the event that Respondent did not repay the funds within thirty days of demand, interest would accrue. Respondent acknowledged he did not advise William or Brian to seek independent counsel. When asked why he did not reduce his agreement with Brian and/or William to writing, Respondent stated he prepared an agreement for Brian to sign, but Brian told him not to bother with it. He acknowledged he should have at least memorialized the agreement in a letter. (Tr. 38-39, 54-57).

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Respondent testified that, at about the time of his second telephone call with William, he began taking money from the escrow account. When asked about checks totaling $3,500 that he wrote to himself at the end of November 2002, he noted they were for "fees on account." Respondent's bank records reflect that from late 2002 through mid-2003 he wrote fifteen additional checks for "fees" or "fees on account" as noted on the memo line of the checks. He denied that the total amount of those checks was for fees, however, and explained that at Brian's suggestion, he designated some of the loans as fees so he would be required to pay income tax on that amount. Although Respondent knew that some of that money was going to be paid back, he agreed to Brian's suggestion because Brian was helping him out. (Tr. 39, 51-54; Adm. Ex. 2-16).

Respondent claimed that, in addition to the initial $5,000 agreed upon for fees, he earned an additional $10,000 in fees. He attributed part of the additional amount to a complication in the ownership of Mietlicki's house. He explained that shortly after Mietlicki's death, Mietlicki's caregiver claimed title to the house, but after some telephone calls, letters, and meetings with the caregiver, the claim was not pursued. Respondent did not keep records regarding his work for the estate, nor did he prepare itemized billing statements. He admitted he was careless in not doing so, but stated he tried to keep Brian apprised of the work he was doing and the amount he was paying himself for fees. He felt $15,000 in fees was justified by his work on the estate which included meeting with Brian's aunt, obtaining information regarding the funeral bill, obtaining court approval for a claim, resolving the problem with the deed, taking constant telephone calls from Brian, and investigating an early release for Brian. Respondent had been under the impression that either Brian or William was going to sign a receipt agreeing to the additional fees. (Tr. 47-52).

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Respondent stated he began borrowing money from the escrow account in early 2003, after he had taken his fee money. He explained that he did not write "loan" on any of the checks he wrote to himself because he had agreed to pay income tax on the amount he was taking. (Tr. 56, 68).

Respondent acknowledged that in probate cases, distribution of funds to the heirs occurs pursuant to a distribution order entered by the Court, and no order or final accounting was entered in the Mietlicki estate. Therefore, Brian was never officially given the proceeds from the sale of the house, and the money still belonged to the Mietlicki estate. When asked why he believed Brian or William had authority to allow him to borrow from the estate, Respondent stated William had talked to Brian and Brian said it was "all right to do." (Tr. 46-47).

Respondent stated that during 2003 he spoke to William every couple of months. He also recalled having quite a bit of contact with Brian, who telephoned him and wrote to him on a regular basis, but he did not recall ever meeting Brian in person. He stated that part of his discussions with Brian involved Brian's ideas of how he wanted his money invested. Respondent admitted that Brian's letters do not reference any agreement which would allow Respondent to use Brian's money at will and interest free. (Tr. 40, 57-60).

In January 2004 Respondent refinanced his home and with the money left over from the refinancing, he made a partial repayment of $54,592.46 to Brian by depositing a check for that amount into the escrow account. Respondent stated that no formal demand had been made for repayment, but he and William had discussed the subject and payment was made so that William could invest the money for Brian. After Respondent deposited the check, the balance in the escrow account was approximately $65,000. He intended to give William a check for the full amount but decided he could not repay the full amount at that time. In February 2004,

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Respondent sent a check to William for $54,159.78 and had a check drawn to himself for $10,924.22. (Tr. 41, 55-56, Adm. Ex. 17, 19, 20).

Respondent stated he made additional payments on three occasions, sent Brian at least $1,200 in money orders and paid out $500 for new glasses for Brian. At Brian's request, he had also paid $5,000 to Georgia Czarnecki. (Tr. 40-43, 59; Adm. Ex. 21, 23).

With respect to William's October 2004 request for an investigation of conduct, Respondent stated that when he first learned of the request, he did not submit a written response to the ARDC because he was occupied with starting a new career as a loan officer and he did not have the funds to prepare a response. William had told him the request was submitted because Respondent had not complied with his promise of an accounting and repaying the balance of the money. Respondent ultimately provided an accounting to William and based on that accounting, they agreed he still owes $8,000 plus $2,000 in interest. Respondent stated that the Mietlicki estate has remained open pending an agreement as to how much he owes. (Tr. 42-46, 61-62).

Respondent testified that his prior suspension took effect in September 2003. Between November 2002 and September 2003 he was looking for a job and trying to tie everything up. He denied borrowing money from any other client, and stated he concentrated on Brian because Brian was in prison and did not need the money at that point. (Tr. 62-65).

When Respondent was asked why he stated at his deposition that Brian authorized him to use the estate money but never mentioned any authorization by William, he explained that the questions had focused only on Brian and the fact that Brian was angry. He was aware that William submitted the investigation request, but understood Brian was the motivating force behind it. He stated he has gotten along with William and continues to talk to him every month or so. (Tr. 61, 66-67).

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Prior Discipline

The Administrator reported that on September 29, 2003, the Illinois Supreme Court entered an order suspending Respondent from the practice of law for two years and until he paid restitution in the amount of $20,000. In re Lasica, 02 CH 38, M.R. 18813 (2003). The discipline was imposed, on consent, for Respondent's conversion of $66,000 from an estate, his neglect of a separate estate, and for making false statements to a disciplinary authority.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Ingersoll, 186 Ill.2d 163, 710 N.E.2d 390, 393 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. People v. Williams, 143 Ill.2d 477, 577 N.E.2d 762 (1991).

The evidence in this case established that in 2002 Respondent agreed to represent the estate of Ann Mietlicki, to which Brian Gancarczyk was the sole heir, for a fee of $5,000. Respondent handled the sale of Mietlicki's house, received proceeds from the sales totaling almost $100,000, and deposited the funds into an escrow account for Brian's benefit. At all times relevant to these proceedings, Brian was incarcerated and expected to be in prison for many years. Respondent acknowledged that he had a fiduciary relationship with respect to Brian and the estate, and owed a duty to exercise the highest degree of honesty, loyalty and good faith regarding the handling of the estate's property.

After depositing the funds into the escrow account, Respondent wrote more than thirty checks payable to himself, or to cash, totaling approximately $78,000. He claimed that some of

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the checks covered additional attorney's fees of $10,000, and that the remainder was a loan that was approved by both Brian and Brian's father, William.

We did not find Respondent to be a credible witness and reject his claim that he took the funds as a loan. His testimony was contradicted by Brian, who denied authorizing Respondent to use any funds for his own purposes, denied agreeing to loan money to Respondent, and denied knowing that Respondent used or borrowed any of the money. Brian's letters to Respondent, which we regard as trustworthy, contain no reference to Respondent's use of the funds. To the contrary, Brian repeatedly expressed his desire that the funds be preserved and invested in a safe vehicle so he would be assured of some financial security upon his release from prison.

Respondent's reliance on William's statements or actions to justify his use of the funds is not well founded. Respondent contended that he and William agreed in November 2002 that Respondent could use the funds and repay the estate within thirty days of demand being made. The purported agreement was not reduced to writing however, and while William attempted at hearing to confirm the agreement, we found his testimony to be confusing and inconsistent. He was not able to pinpoint the specific terms of any loan to Respondent nor did he adequately explain why, when he submitted a written request for investigation of Respondent's conduct, he made no reference to any type of loan agreement. We find it highly improbable that Respondent would be given free access to a large sum of money without any documentation to support the agreement or terms of repayment.

We further find that even if William did consent to a loan to Respondent in November 2002, he had no authority to do so. Again, nothing in Brian's testimony or letters to Respondent indicate that Brian had turned over control of his finances to his father at that time. In fact Brian

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testified that his relationship with his father was "not too hot" and in a February, 2003 letter to Respondent, Brian specifically stated that he did not want his father to handle his affairs.

Months later, however, Brian apparently had a change of heart. We were presented with a power of attorney, dated September 5, 2003 and purportedly signed by Brian, which gives William power and control over the estate funds. In a handwritten letter dated the same date, Brian informed Respondent that he decided to give his father control over his finances, and referenced a power of attorney contract being sent to Respondent. The letter further directed Respondent to give his father a check for the remaining sum of money.

Assuming that the September 2003 power of attorney was valid, the document does not lend any credence or justification to Respondent's actions prior to that date. By September 5, 2003, Respondent had already used nearly $55,000 of the funds for his own benefit without proper authorization. As of the September date, Respondent was under direction by Brian to turn over all of the funds to Brian's father. Within days of that direction, however, he wrote a check, payable to cash, for $7,200. He continued to hold the remaining funds for several months and then closed out the account by making a payment to William and taking almost $11,000 for himself.

Respondent maintained that he was entitled to $10,000 of the funds as additional attorney's fees. We reject that claim for two reasons. First, Brian's letters do not reflect his knowledge or approval of any use of the funds for fees. They do, however, reveal that he was worried about incurring additional fees. On January 4, 2003 Brian advised Respondent that "I need to know where we stand on your fees with the house, time and handling my affairs." In June 2003 Brian requested that Respondent reimburse William for $2,000 paid to University Research Dept in Birmingham, Michigan for legal work relating to a reduction of Brian's

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sentence. Brian explained in a subsequent letter that he did not ask Respondent to handle the matter because he was trying to spend as little as possible and to save for his future.

Second, the evidence did not support Respondent's claim that he performed work to justify $10,000 in additional fees. The evidence showed that he received a $5,000 retainer and thereafter opened an estate, handled the sale of Mietlicki's house, paid some claims against the estate, and communicated with Brian and William. Respondent testified that he also spent time resolving an outside claim to Mietlicki's house and performing research relative to Brian's early release from prison. As to the title claim, he acknowledged the issue was resolved without resort to litigation. With respect to any research relating to Brian's sentencing, Brian's letters indicated that he retained other counsel for that issue, as he thought Respondent's services would be too expensive. We note that Respondent did not keep time sheets and presented no billing records or invoices to substantiate his claim for fees.

Based on the foregoing evidence, we conclude that Respondent was not authorized to use any of the Mietlicki estate funds. We find therefore that the Administrator proved by clear and convincing evidence that Respondent engaged in conversion, breach of fiduciary obligations owed to Brian Gancarczyk, conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct, conduct that is prejudicial to the administration of justice; and conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Illinois Supreme Court Rule 770.

RECOMMENDATION

Having concluded that Respondent engaged in wrongdoing, we must determine the appropriate discipline warranted by the misconduct. In determining the proper sanction, we

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consider the purposes of the disciplinary process. The goal of these proceedings is not to punish but rather to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 623 N.E.2d 300 (1993). Another factor for consideration is the deterrent value of attorney discipline and the need to impress upon others the repercussions of errors such as those committed by Respondent in the present case. In re Discipio, 163 Ill.2d 515, 645 N.E.2d 906, 912 (1994).

We also take into account those circumstances which may mitigate and/or aggravate the misconduct. In re Witt, 145 Ill.2d 380, 583 N.E.2d 526, 535 (1991). In mitigation, Respondent cooperated in these proceedings. See In re Chandler, 161 Ill.2d 459, 641 N.E.2d 473 (1994).

In aggravation, we consider Respondent's failure to make full restitution of the funds he converted. See In re Uhler II, 126 Ill.2d 532, 535 N.E.2d 825 (1989). Although Respondent repaid the bulk of the funds by early 2004, he acknowledged at hearing that he still owes approximately $10,000.

We also consider the fact that Respondent was previously suspended for two years. Prior discipline has been considered by the Court to be a critical factor when determining discipline. See In re Blank, 145 Ill.2d 534, 585 N.E.2d 105, (1991). In this case Respondent's prior sanction is particularly significant because it was imposed for misconduct which included converting funds from an estate. Further, the prior disciplinary proceedings were pending at the time of the conversion in the present case. Indeed, at the very time he was helping himself to Brian Gancarcyzk's funds in March 2003, he signed an affidavit in which he consented to a two-year suspension for his earlier conversion. Apparently neither the disciplinary proceedings nor the knowledge that he was about to be suspended for a lengthy period were sufficient to deter him from committing the same type of misconduct.

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The Administrator argued that Respondent's misconduct, coupled with the aggravating factors, merits disbarment. Respondent argued that no conversion occurred, but acknowledged that some discipline might be appropriate for the way the loan was handled. He further acknowledged that if this panel determines that conversion was proved by clear and convincing evidence, disbarment is probably appropriate.

We found that Respondent did engage in conversion. The Illinois Supreme Court has stated that, in the absence of mitigating circumstances, a single act of conversion can warrant disbarment. In re Rotman, 136 Ill.2d 401, 556 N.E.2d 243 (1990). In that case the attorney, who had not been previously disciplined, was disbarred for converting approximately $15,000 from the estate of a client who had been adjudicated incompetent. See also In re Stillo, 68 Ill. 2d 49, 54, 368 N.E.2d 897, 899 (1977) (when a lawyer "converts a client's funds to his own personal use he commits an act involving moral turpitude, and, in the absence of mitigating circumstances, such conversion is a gross violation of the attorney's oath, calling for the attorney's disbarment.")

The Administrator brought additional cases to our attention. In In re Smith, 63 Ill. 2d 250, 347 N.E.2d 133 (1976) the attorney was disbarred for using the settlement funds of his minor client for his own purposes and failing to turn the funds over after repeated requests. The Court noted that the attorney's financial and emotional problems afforded no excuse for his actions. In In re Bartley 96 SH 879, M.R. 15176 (Sept. 28, 1998) the attorney, who had power of attorney over the accounts of his elderly client and claimed that he received loans from the client, was disbarred for converting $179,000 of the funds for his own purposes. He had been previously sanctioned for unrelated misconduct. In In re Woldman, 98 Ill.2d 248, 456 N.E.2d 35

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(1983) an attorney was disbarred for converting the funds of several clients. The Court rejected the attorney's claim that one of the clients had consented to loaning him $70,000.

We agree with the Administrator that the misconduct in this case warrants disbarment. As with the attorneys in Bartley and Woldman, Respondent's claim of a loan agreement was simply not plausible and, like the attorneys in Rotman and Bartley, he took advantage of a person who was not in a position to monitor or challenge his actions. Further, we are very concerned that he engaged in the misconduct when formal disciplinary charges were pending against him for similar conduct. Since the prior proceedings did not prevent him from engaging in the same type of misconduct a second time, our only recourse to ensure the protection of both the public and the profession is to recommend the harshest of sanctions.

Accordingly, we recommend that Respondent Donald P. Lasica be disbarred.

Date Entered: December 31, 2008

Debra J. Braselton, Chair, with James P. Fieweger and Mark Fitzgerald concurring.