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

In the Matter of:

STEVEN DAVID GUSTAFSON,

Attorney-Respondent, 

No.  6207057.

 

Commission No.  07 CH 127

FILED -  May 26, 2009

SECOND AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, James A. Doppke, Jr., pursuant to Supreme Court Rule 753(b), complains of Respondent, Steven David Gustafson, who was licensed to practice law in the State of Illinois on November 7, 1991, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

ALLEGATIONS COMMON TO COUNTS I, II, and III

1. Between 1998 and February 21, 2006, Respondent was a shareholder in an Illinois law firm known as James, Gustafson & Thompson ("JGT"). The other shareholders in the firm were attorneys Larry L. Thompson, Ari J. Rosenthal, Mary S. Watts, and John D. James.

2. As a shareholder of the firm, Respondent owed a fiduciary duty to the firm and to the other shareholders of the firm to exercise the highest degree of honesty and good faith in his dealings with the firm and in his handling of the firm's property.

3. During its existence, JGT maintained Harris Bank account number 70-2269-719, entitled "James, Gustafson and Thompson Ltd., Attorneys at Law," and used that account as its IOLTA client fund account ("the JGT IOLTA account").

COUNT I
(Conversion of $120,494.69 belonging to Damien Freeman)

4. Beginning in at least 2000, Respondent agreed, on behalf of JGT, to represent Damien Freeman in connection with funds that Freeman had lost as a result of a fraudulent scheme committed by third parties. Respondent represented Freeman in his efforts to obtain restitution in connection with the third parties' conviction of criminal offenses relating to the scheme in a matter entitled U.S. v. Holmberg, et al., 98 CR 653 (N.D. Ill.). Freeman agreed to pay JGT a fee of 40% of any amounts recovered on his behalf.

5. On May 16, 2005, Respondent received a check in the amount of $200,824.48 from the United States Attorney for the Northern District of Illinois, representing restitution due to Freeman. Shortly thereafter, Respondent caused the check to be deposited in the JGT IOLTA account.

6. On May 17, 2005, Respondent caused check number 6918 to be drawn on the JGT IOLTA account, made payable to Freeman in the amount of $120,494.69. Check number 6918 represented Freeman's portion of the proceeds of the $200,824.48 check referred to in paragraph five, above.

7. On May 18, 2005, pursuant to JGT's fee agreement with Freeman, Respondent caused $80,329.79, representing the fees due to the firm from Respondent's representation of Freeman, to be transferred from the JGT IOLTA account to a JGT operating account.

8. As of July 20, 2005, Freeman was residing outside the United States, and as a result, he directed Respondent to hold the funds described in paragraph six, above, until after his return.

9. On or about July 20, 2005, pursuant to Freeman's instructions, Respondent caused check number 6918, described in paragraph six, above, to be voided. Thereafter, as Respondent knew or should have known, JGT was responsible for holding the $120,494.69 due to Freeman in the JGT IOLTA account until Freeman directed him to disburse the funds.

10. At no time did Freeman, or anyone on his behalf, authorize Respondent or JGT to use any portion of the funds referred to in paragraph six, above, for his own business or personal purposes.

11. Between August 31, 2005 and January 13, 2006, Respondent used the entire $120,494.69 in funds belonging to Freeman for his own business or personal purposes by causing checks to be drawn on the JGT IOLTA account, and by otherwise causing funds to be transferred from the account.

12. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conversion;

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

  3. 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.

COUNT II
(Conversion of $173,000 and dishonest conduct in relation to the estate of Marianne Kagianas)

13. Beginning in at least 2004, Respondent, on behalf of JGT, agreed to perform legal services in connection with the estate of Marianne Kagianas. Specifically, Respondent represented several heirs of the estate, including Thomas Kaster and Greg Kaster, in connection with a dispute with the trustee of a trust held for Marianne Kagianas' benefit. Further, after that trustee resigned, Respondent represented the estate in matters relating to estate taxes. The heirs of the estate agreed to pay Respondent at a rate of $290 per hour.

14. On or about October 28, 2005, Respondent received United States Treasury draft number 230715598269 in the amount of $70,000, made payable to the Marianne Kagianas Estate, Thomas Kaster, and Greg Kaster, and representing a tax refund due to the estate. Respondent did not inform Thomas Kaster or Greg Kaster that he had received the draft.

15. On or about October 28, 2005, Respondent caused the check to be deposited in the JGT IOLTA account.

16. At no time did Thomas Kaster, Greg Kaster, or anyone on their behalf or on behalf of the Marianne Kagianas Estate, authorize Respondent or JGT to use any portion of the funds referred to in paragraph 14, above, for his own business or personal purposes.

17. Between October 28, 2005 and January 13, 2006, without paying any portion of the $70,000 tax refund to Thomas Kaster, Greg Kaster, or the Marianne Kagianas Estate, Respondent used the entire $70,000 due to the Marianne Kagianas Estate from the proceeds of draft number 230715598269 for his own business or personal purposes by causing checks to be drawn on the JGT IOLTA account, and by otherwise transferring funds from the account.

18. On November 18, 2005, Respondent sent an e-mail message to both Thomas Kaster and Greg Kaster in which he stated, inter alia, "Once we get the IRS and [sic] refund (of $70,000) we will need to meet to reconcile all final matters for the [Marianne Kagianas] Estate." As Respondent knew, that statement falsely indicated that he had not received the $70,000 tax refund, when, in fact, he had received it on or about October 28, 2005.

19. On December 8, 2005, Respondent sent an e-mail message to Thomas Kaster in which he stated, inter alia, "Now we are only waiting for the IRS and I expect this soon as we discussed." As Respondent knew, that statement falsely indicated that he had not received the $70,000 tax refund, when, in fact, he had received it on or about October 28, 2005.

20. On or about December 5, 2005, Respondent received a check for $112,000 from the Illinois Department of Revenue, representing a state tax refund due to the Marianne Kagianas Estate. Respondent caused the check to be deposited in the JGT IOLTA account.

21. At no time did Thomas Kaster, Greg Kaster, or anyone on their behalf or on behalf of the Marianne Kagianas Estate, authorize Respondent or JGT to use any portion of the funds referred to in paragraph 20, above, for his own business or personal purposes.

22. On or about December 27, 2005, Respondent directed his secretary to draw check number 7117, payable to Edward Jones in the amount of $103,000 on the JGT IOLTA account. He further directed her to make a notation on the check stub, as follows: "Edward Jones Kagianas."

23. Shortly thereafter, Respondent caused check number 7117 to be deposited into an Edward Jones account entitled "Norman A. & Tillie M. Wheeler Revocable Trust." Respondent represented Norman and Tillie Wheeler in connection with matters that were not related to the Marianne Kagianas Estate, and he was the trustee for their Edward Jones account.

24. Between January 3, 2006 and January 18, 2006, Respondent used the entire $103,000 referred to in paragraph 22, above, by causing checks to be drawn on the Edward Jones account entitled "Norman A. & Tillie M. Wheeler Revocable Trust" in payment of his own business or personal expenses. Therefore, as of January 18, 2006, Respondent had used at least $103,000 of the $112,000 state tax refund referred to in paragraph 20, above, without authority.

25. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conversion;

  2. failure to promptly deliver any funds the client is entitled to receive and to render an accounting of such property, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct;

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

  4. 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.

COUNT III
(False statements on check stubs relating to the JGT IOLTA account)

26. On numerous occasions between 2001 and 2006, Respondent caused checks to be drawn on the JGT IOLTA account for his own personal or business purposes. On each such occasion, he made notations, or caused notations to be made, on the check stubs associated with the checks that falsely indicated that the checks were being drawn for purposes relating to the firm's clients, as follows:

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

1. 6/5/01 5412 Refund Chevrie Steven D. Gustafson $600 $600 in cash to Respondent
2. 7/3/01 5441 Chicago Title/Harris Bank foreclosure minutes; costs Chevrie, Chuck Cash $1,200 $1,200 official bank check payable to First Card for payment toward Respondent's personal credit card balance
3. 2/3/03 6034 Taxes - MA Toepfer, Tony MBNA $5,000 $5,000 payment toward Respondent's personal credit card balance
4. 2/27/03 6059 Orcutt, Shellie Loan Payoff MBNA $9,000 $9,000 payment toward Respondent's personal credit card balance
5. 3/12/03 6087 Hinsdale Corp Tony Toepfer - litigation cost Hinsdale Hospital $1,809.65 $1,809.65 payment for Respondent's medical bill
6. 3/24/03 6095 Quality Stores Bankruptcy Trustee - Settlement Homak Mfc. Co. MBNA $2,000 $2,000 payment toward Respondent's personal credit card balance
7. 4/8/03 6121 Ill Dept Rev Orcutt Harris Bank $1,785 $1,785 in cash to Respondent
8. 4/22/03 6146 Miller, Brewer et al Retainer Legal Services Nicor Energy MBNA $10,000 $10,000 payment toward Respondent's personal credit card balance

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

9. 4/22/03 6148 Ed Jones Estate distribution Simpson Estate Edward Jones $3,000 $3,000 deposit into Respondent's wife's Edward Jones account
10. 4/22/03 6149 IRS - Edward Jones (Putbrese) Estimated 2002 Fricke Est. Edward Jones $2,000 $2,000 deposit into Respondent's wife's Edward Jones account
11. 05/13/03 6173 Randy Anderson loan payoff Harris Bank $10,458.84 $10,458.84 official bank check payable to Bill Jacobs for purchase of BMW
12. 05/13/03 6174 Harris Bank, et al. 4 fees Nicor Gas Harris Bank $9,000 $1,000 in cash to Respondent
$8,000 official bank check payable to MBNA for payment toward Respondent's personal credit card balance
13. 06/13/03 6226 Deans Credit Suprtan Escrow Deans $1,166.78 $1,166.78 payment toward credit balance at Dean's clothing store, Naperville

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

14. 06/27/03 6250 Tim Evans - legal fees/costs Aeffect, Inc. Harris Bank $9,000 $1,499.76 in cash to Respondent
$7,500.24 applied toward $18,611.35 official bank check payable to MBNA for payment toward Respondent's personal credit card balance
15. 07/25/03 6276 Harris, et al Nicor- Dillon Harris Bank $11,000 $1,039.10 in cash to Respondent
$9,960.90 official bank check payable to MBNA for payment toward Respondent's personal credit card balance
16. 08/12/03 6305 Wells Finance Aeffect Inc. bank fees Wells Fargo $5,000 $5,000 payment toward Respondent's personal equity line of credit
17. 8/14/03 6308 MBNA - SuperTan SuperTan - Beilke Payoff MBNA $7,500 $7,500 payment toward Respondent's personal credit card balance
18. 9/11/03 6350 Wells Financing CopperTan Wells Fargo Bank N.A. $20,000 $20,000 payment toward Respondent's personal equity line of credit

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

19. 9/13/03 6355 MBNA Wheeler Trust MBNA $1,600 $1,600 payment toward Respondent's personal credit card balance
20. 9/24/03 6366 Harris Bank EM - RE deal Wheeler Trust Harris Bank $3,500 $3,500 in cash to Respondent
21. 10/2/03 6372 Card Services - Wheeler Trust Cardmember Services $4,500 $4,500 payment toward Respondent's personal credit card balance
22. 10/20/03 6388 Wells Wheeler Trust Wells Fargo $5,000 $5,000 payment toward Respondent's personal equity line of credit
23. 10/22/03 6391 MBNA Wheeler Trust MBNA $250 $250 payment toward Respondent's personal credit card balance
24. 11/7/03 6403 Card Serv Wheeler Trust Cardmember Services $7,850 $7,850 payment toward Respondent's personal credit card balance
25. 11/14/03 6404 Wells Wheeler Trust Wells Fargo $9,400 $9,400 payment toward Respondent's personal equity line of credit
26. 11/26/03 6410 Harris Bank Wheeler (illegible) Harris Bank $2,500 $2,500 in cash to Respondent

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

27. 12/3/03 6413 Countrywide Wheeler Trust Countrywide $3,000 $3,000 payment toward Respondent's mortgage debt
28. 12/2/03 6414 Card Service Wheeler Trust Cardmember Services $3,729 $3,729 payment toward Respondent's personal credit card balance
29. 12/15/03 6426 MBNA Wheeler Trust MBNA $2,300 $2,300 payment toward Respondent's personal credit card balance
30. 12/15/03 6427 Greenway Remodeling Costs Wheeler Trust Greenway Remodeling $6,201.54 $6,201.54 payment for remodeling of Respondent's residence
31. 12/15/03 6428 Wells Fargo Wheeler est Wells Fargo $7,000 $7,000 payment toward Respondent's personal equity line of credit
32. 12/23/03 6431 Harris Bank Wheeler Trust Harris Bank $2,750 $2,750 in cash to Respondent
33. 12/23/03 6432 Harris Bank Wheeler Trust Steven Gustafson $1,911.09 $1,911.09 deposit into Respondent's personal bank account
34. 1/2/04 6442 Card Service Wheeler Trust Cardmember Service $6,800 $6,800 payment toward Respondent's personal credit card balance

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

35. 1/9/04 6448 Wells, Farley et al. legal fees retainer Aeffect Inc. Wells Fargo $5,000 $5,000 payment toward Respondent's personal equity line of credit
36. 1/14/04 6451 MBNA Wheeler Trust MBNA $8,750 $8,750 payment toward Respondent's personal credit card balance
37. 1/29/04 6459 Card Service Wheeler Trust association/taxes Cardmember Services $2,500 $2,500 payment toward Respondent's personal credit card balance
38. 2/9/04 6467 Wells Wheeler trust Wells $6,000 $6,000 payment toward Respondent's personal equity line of credit
39. 2/20/04 6481 MBNA Wheeler Trust MBNA $3,000 $3,000 payment toward Respondent's personal credit card balance
40. 2/27/04 6483 Citi Construction Wheeler Trust Citi $8,325 $8,325 payment toward Respondent's personal credit card balance
41. 3/9/04 6488 Wells, et al legal fees Nicor Energy Wells $7,000 $7,000 payment toward Respondent's personal equity line of credit
42. 3/12/04 6492 Harris Bank DeBruler Co. Harris Bank $1,500 $1,500 in cash to Respondent

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

43. 3/16/04 6496 MBNA Wheeler Trust MBNA $500 $500 payment toward Respondent's personal credit card balance
44. 4/6/04 6515 Wells, Fuchs, et al Legal Fees - retainer Nicor Energy - Dillon Wells $8,000 $8,000 payment toward Respondent's personal equity line of credit
45. 4/30/04 6539 CopperTan Harris Bank $2,030 $2,030 in cash to Respondent
46. 5/3/04 6545 Citidel Estate Matter Haberman Estate Citi Services $5,000 $5,000 payment toward Respondent's personal credit card balance
47. 5/6/04 6552 Wells, et al. Costs Wells $20,850 $20,850 payment toward Respondent's personal equity line of credit
48. 6/1/04 6571 Harris Bank Wheeler Trust DuPage County Collector $4,404.58 $4,404.58 payment toward Respondent's personal property tax bill
49. 6/28/04 6614 Citig Services Wheeler Citi $8,663.08 $8,663.08 payment toward Respondent's personal credit card balance
50. 7/1/04 6618 Harris Financial Wheeler Trust Harris Bank $750 $750 in cash to Respondent

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

51. 7/9/04 6625 (illegible) Nicor Energy LLC Bank One $2,500 $2,500 payment toward Respondent's personal credit card balance
52. 7/14/04 6628 Bank One Services Estate Haberman Bank One $4,280 $4,280 payment toward Respondent's personal credit card balance
53. 7/16/04 6629 Harris Bk - Escrowee RE association dues deposit 3rd Qtr Wheeler Trust Harris Bank $950 $950 in cash to Respondent
54. 7/28/04 6636 C Cards Inc. Final Est. Costs Fricke Est. Citi Services $5,955 $5,955 payment toward Respondent's personal credit card balance
55. 8/25/04 6660 CR Bank DeBruler Co. Bank One $6,280 $6,280 payment toward Respondent's personal credit card balance
56. 8/25/04 6661 Harris Bank assoc. fees Wheeler Trust Harris Bank $700 $700 in cash to Respondent
57. 9/1/04 6671 Harris Bank Ludka, Inc. DuPage County Collector $4,404.58 $4,404.58 payment toward Respondent's personal property tax bill
58. 9/15/04 6684 Bank One NA Kagianas Est. Bank One $5,600 $5,600 payment toward Respondent's personal credit card balance

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

59. 9/22/04 6693 Citi Services Inc. litigation support Kagianas Citi Services $3,747.90 $3,747.90 payment toward Respondent's personal credit card balance
60. 9/24/04 6694 Amx Kagianas costs American Express $18,900 $18,900 payment toward Respondent's personal credit card balance
61. 9/29/04 6704 Harris Bank Ludka, Inc. Harris Bank $750 $750 in cash to Respondent
62. 10/14/04 6714 Bank One Leasing Ludka, Inc. Bank One $1,500 $1,500 payment toward Respondent's personal credit card balance
63. 10/27/04 6734 American Funds Kagianas Estate American Express $2,648.09 $2,648.09 payment toward Respondent's personal credit card balance
64. 10/27/04 6736 Harris Bank Kagianas Est. Harris Bank $2,100 $2,100 in cash to Respondent
65. 10/29/04 6739 Citi Group Kagianas Est Citi $5,200 $5,200 payment toward Respondent's personal credit card balance
66. 11/12/04 6753 Harris Bank Kagianas Estate IRS taxes/2004 estimate Harris Bank $4,200 $4,200 in cash to Respondent

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

67. 11/23/04 6765 Court Rep Services Kagianas Est Bank One $500 $500 payment toward Respondent's personal credit card balance
68. 11/24/04 6767 Citi Services Ludka Citi $2,826.83 $2,826.83 payment toward Respondent's mortgage debt
69. 11/24/04 6768 Citi Services Court fees Ludka Citi $4,271.50 $4,271.50 payment toward Respondent's personal credit card balance
70. 11/29/04 6769 Continental Ins. Ludka Harris Bank $17,450 $17,450 official bank check payable to Continental Audi for a vehicle for Respondent
71. 12/7/04 6799 Barry Berk - Harris Harris Bank $8,000 $500 in cash to Respondent
$7,500 official bank check payable to Perle Jewelers for Respondent's personal expense
72. 12/23/04 6804 Harris Trust - trustee services Ludka Harris Bank $4,850 $4,850 in cash to Respondent
73. 1/5/05 6814 Keven Arnold doc review Ludka Keven Arnold $900 $900 payment toward dental bill of Respondent's secretary's child

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

74. 1/14/05 6815 Amex Bus. & Tax/ Kabza Bank One $16,750 $16,750 payment toward Respondent's personal credit card balance
75. 1/28/05 6837 DeBruler Co. Harris Bank $3,250 $3,250 in cash to Respondent
76. 2/11/05 6846 Ill. Dept. Revenue Ludka Harris Bank $2,600 $2,600 official bank check payable to Perle Jewelers
77. 2/15/05 6847 Wells Ludka Wells $9,700 $9,700 payment toward Respondent's personal equity line of credit
78. 3/1/05 6860 Am. Funds Ludka American Express $4,450 $4,450 payment toward Respondent's personal credit card balance
79. 3/2/05 6861 Harris Bank Ludka Harris Bank $7,400 $7,400 official bank check payable to Respondent's wife
80. 3/8/05 6867 WC Sett - Ed Sindles Med Wells $4,403.76 $4,403.76 payment toward Respondent's personal equity line of credit
81. 3/22/05 6876 Harris Bank Estate Kagianas Est Harris Bank $2,750 $2,750 in cash to Respondent

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

82. 3/23/05 6879 Betty Kagianas refund costs Kagianas Estate Harris Bank $19,252.50 $19,252.50 official bank check deposited into Respondent's personal bank account
83. 4/15/05 6896 IRS- tax pmt Ludka Northern Trust Bank $12,500 $12,500 deposit into Respondent's personal bank account
84. 4/18/05 6898 IRS IDOR Wheeler Northern Trust Bank $13,350 $13,350 deposit into Respondent's personal bank account
85. 5/2/05 6907 Ill. Dept. Rev. Kagianas Est. Northern Trust Bank $8,000 $8,000 deposit into Respondent's personal bank account
86. 5/13/05 6916 IDOR Kagianas Est Harris Bank $750 $750 in cash to Respondent
87. 5/25/05 6926 Northern Trust Kagianas Harris Bank $700 $700 in cash to Respondent
88. 6/6/05 6938 Harris - tax pmt 04 Kagianas Trust Harris Bank $500 $500 in cash to Respondent
89. 6/15/05 6947 M. Patricoski ref fee/costs Friello ref Harris Bank $1,400 $1,400 in cash to Respondent

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

90. 7/20/05 6975 IRS - Northern Trust Kagianas Est Bank Escrowee Northern Trust Bank $38,875 $37,000 deposited into Respondent's personal bank account
$1,875 in cash to Respondent
91. 8/23/05 7007 Kagianas Northern Trust $3,400 $3,400 deposited into Respondent's personal bank account
92. 9/27/05 7038 NTB Freeman Northern Trust Bank $35,000 $35,000 deposit into Respondent's personal bank account
93. 9/27/05 7039 IRS - IDOR Harris Bank $15,900 $12,000 official bank check deposited in Respondent's personal bank account
$3,900 in cash to Respondent
94. 10/24/05 7064 Edw Jones Freeman - cost Edward Jones $22,741 $22,741 deposit into Edward Jones account for Wheeler Revocable Trust
95. 11/1/05 7078 NTB FL Freeman Edward Jones $25,000 $25,000 deposit into Edward Jones account for Wheeler Revocable Trust

 

 

Date of Check

Check No.

Check Stub Notation

Actual Payee

Amount of Check

Actual Use of Funds

96. 11/30/05 7092 Wells, Simmons Edward Jones $42,500 $42,500 deposit into Edward Jones account for Wheeler Revocable Trust
97. 11/30/05 7097 Greenway - (illegible) Freeman SOL Greenway Remodeling $12,000 $12,000 payment for remodeling of Respondent's residence
98. 12/13/05 7109 Coman & Anderson Freeman Coman & Anderson $50,000 $50,000 retainer to Coman & Anderson for client Anna Gil
99. 12/27/05 7116 Edward Jones Silva Estate (Julie Miller) Edward Jones $150,000 $150,000 deposit into Edward Jones account for Wheeler Revocable Trust

27. Respondent created the false notations on the check stubs described in paragraph 26, above, in order to conceal from the other shareholders of JGT his use of funds residing in the JGT IOLTA account for his own personal or business purposes.

28. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. breach of fiduciary duty;

  2. making a statement of material fact or law to a third person which statement the lawyer knows or reasonably should know is false, in violation of Rule 4.1(a) of the Illinois Rules of Professional Conduct;

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

  4. conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Illinois Supreme Court Rule 770.

ALLEGATIONS COMMON TO COUNTS IV - VII

29. Beginning in at least 2004, Respondent agreed to represent Anna Gil ("Gil") and her mother, Louise Makuch ("Makuch"), in connection with matters relating to Makuch's estate planning. In particular, Respondent advised Gil and Makuch regarding a trust of which Makuch would be the settlor and trustee, and Gil and her brother, Andrew Makuch, would be designated as the beneficiaries.

30. On February 21, 2006, JGT (referred to in paragraph 1, above), was dissolved. Thereafter, Respondent entered into a partnership with attorney John D. James ("James"), and began practicing as the firm of James and Gustafson.

31. As part of the operation of James and Gustafson, Respondent caused several bank accounts to be opened, including First Midwest Bank account number 8100268499, entitled "James and Gustafson Attorneys At Law IOLTA Client Trust." Respondent and James used account number 8100268499 as a repository of funds due to clients, third parties, or, presently or potentially, Respondent, James, or their law firm. Respondent or James also caused to be opened First Midwest Bank account number 8100268498, entitled "James and Gustafson, Attorneys at Law" ("his firm's general account"), and they used that account to pay expenses relating to the operation of their law office or other personal expenses.

32. In September 2006, as part of his representation of Gil, Makuch, and the LMRT, Respondent created First Midwest Bank account number 7100899561, entitled "Estate of Louise Makuch, Steven Gustafson, Trustee" ("the LMRT account"). Respondent created account number 7100899561 in order to hold and distribute funds belonging to the LMRT.

33. In July 2004, at Respondent's request, James drafted documents relating to the trust referred to in paragraph 29, above. On or about July 23, 2004, Makuch executed the trust documents, thereby creating the Louise Makuch Revocable Trust ("the LMRT").

34. On August 29, 2006, Makuch died. By operation of the agreement creating the LMRT, Respondent became the Successor Trustee of the LMRT on August 29, 2006.

35. As Successor Trustee, and as Gil's attorney, Respondent had a fiduciary relationship with Gil and Andrew Makuch as beneficiaries of the LMRT. Therefore, Respondent owed Gil and Andrew Makuch a duty to exercise the highest degree of honesty and good faith in receiving, holding, and disbursing funds belonging to the LMRT, and to avoid using the funds for his own business or personal purposes.

COUNT IV
(Commingling of $468,104.23 belonging to the Louise Makuch Revocable Trust with
Respondent's personal funds)

36. Between September 5, 2006 and September 13, 2006, Respondent received $243,104.23 on behalf of the LMRT, representing the liquidation of Makuch's bank accounts following her death.

37. On September 25, 2006, Respondent received $225,000 from Andrew Carver, representing a loan to the LMRT, the proceeds of which Respondent intended to use in order to pay a mortgage on Makuch's former residence.

38. Between September 5, 2006 and September 25, 2006, Respondent deposited the entire $468,104.23 described in paragraphs 36 and 37, above, in his firm's general account.

39. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. commingling;

  2. failure to hold property of clients separate from a lawyer's own property, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct; and

  3. 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.

COUNT V
(Commingling of $325,000 and conversion of $39,520 belonging to
the Louise Makuch Revocable Trust)

40. On April 2, 2007, Respondent received $350,000 from a trust he participated in administering on behalf of George A. Kagianas. The funds were intended as a loan to the LMRT, from which Respondent intended to pay off the Carver loan referred to in paragraph 37, above. As Respondent knew or should have known, he was required to hold the funds he received from the Kagianas trust separate from his own property, and to use those funds only for purposes that would benefit the LMRT.

41. At Respondent's direction, on April 2, 2007, the $350,000 referred to in paragraph 40, above, was wired to the LMRT account.

42. On April 3, 2007, Respondent caused $325,000 to be wire-transferred to his firm's general account from the LMRT account. On that date, the firm's general account was overdrawn by $1,858.27. Therefore, on April 3, 2007, by depositing the $325,000 into his firm's general account when that account was overdrawn, Respondent caused $1,858.27 belonging to the LMRT to be used for his own business or personal purposes.

43. Between April 4, 2007 and April 6, 2007, Respondent paid Carver $285,480 from his firm's general account, as repayment of Carver's loan to the LMRT referred to in paragraph 37, above. Thereafter, Respondent was required to maintain at least $37,661.73 belonging to the LMRT in his firm's general account.

44. Between April 6, 2007 and April 17, 2007, Respondent made no additional disbursements from his firm's general account on behalf of the LMRT.

45. On April 17, 2007, Respondent's firm's general account was overdrawn by $7,960.77. Therefore, between April 6, 2007 and April 17, 2007, Respondent caused at least $37,661.73 belonging to the LMRT to be used for his own business or personal purposes, without authority.

46. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. commingling;

  2. conversion;

  3. breach of fiduciary duty;

  4. failure to hold property of clients separate from a lawyer's own property, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct;

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

  6. 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.

COUNT VI
(Commingling of $535,000 and conversion of $261,620.20 belonging to
the Louise Makuch Revocable Trust)

A. Commingling of $75,000 and conversion of $74,966.92
between May 7, 2007 and May 14, 2007

47. In May 2007, Respondent spoke with Gil and her parish priest, Father Waclaw Jamroz, Respondent told Gil and Father Jamroz that the LMRT needed $577,000, and that if that amount was not acquired, Gil would "lose everything."

48. Respondent asked Father Jamroz if he would obtain the $577,000 from his church treasury. Father Jamroz declined to do so, but he agreed to assist in raising that amount by asking his parishoners for donations on Gil's behalf.

49. On May 4, 2007, Father Jamroz provided Respondent with a certified check in the amount of $77,000 from one of Father Jamroz' parishoners. Respondent caused the check to be deposited in the LMRT account. As Respondent knew or should have known, he was required to hold the funds he received from Father Jamroz separate from his own property, and to use those funds only for purposes that would benefit the LMRT. At no time did Gil or Andrew Makuch, referred to in paragraph 29, above, authorize Respondent to use funds belonging to the LMRT for his own business or personal purposes.

50. On May 7, 2007, Respondent caused $75,000 to be drawn from the LMRT account and deposited into his firm's general account.

51. On May 12, 2007, Respondent, on behalf of the LMRT, caused $33.08 to be paid from his firm's general account to UPS as payment for delivery of a package relating to the LMRT. Thereafter, Respondent was required to maintain at least $74,966.92 belonging to the LMRT in his firm's general account.

52. Between May 7, 2007 and May 14, 2007, Respondent made no disbursements from his firm's general account on behalf of the LMRT, other than the payment to UPS referred to in paragraph 51, above.

53. On May 14, 2007, Respondent's firm's general account was overdrawn by $2,782.69. Therefore, between May 7, 2007 and May 14, 2007, Respondent caused $74,966.92 belonging to the LMRT to be used for his own business or personal purposes, without authority.

B. Commingling of $160,000 and conversion of $146,201.38
between May 25, 2007 and June 11, 2007

54. On or about May 21, 2007, Father Jamroz provided Respondent with an additional $200,000 in checks from Father Jamroz' parishoners. As Respondent knew or should have known, he was required to hold the funds he received from Father Jamroz separate from his own property, and to use those funds only for purposes that would benefit the LMRT.

55. On or about May 22, 2007, Respondent caused $100,000 of the funds referred to in paragraph 54, above, to be deposited in his firm's client trust account, and $100,000 to be deposited in his firm's general account.

56. On May 23, 2007, Respondent drew check number 1431 on his firm's general account, made payable to Wiczer & Zelmar in the amount of $12,500. Check number 1431 represented payment of attorney's fees incurred in connection with a bankruptcy matter pertaining to the LMRT.

57. On May 24, 2007, Respondent, on behalf of the LMRT, caused $13.62 to be paid from his firm's general account to UPS as payment for delivery of a package relating to the LMRT.

58. On May 25, 2007, Respondent drew check number 1434 on his firm's general account, made payable to Andrew Carver in the amount of $1,285. Check number 1434 represented a further payment to Carver relating to his loan to the LMRT, referred to in paragraph 37, above.

59. Between May 25, 2007 and June 6, 2007, Respondent made no disbursements from his firm's general account on behalf of the LMRT.

60. On June 6, 2007, Respondent transferred $60,000 in funds belonging to the LMRT from his firm's client trust account into his firm's general account. Thereafter, Respondent was required to maintain at least $146,201.38 belonging to the LMRT in his firm's general account.

61. Between June 6, 2007 and June 11, 2007, Respondent made no disbursements from his firm's general account on behalf of the LMRT.

62. On June 11, 2007, Respondent's firm's general account was overdrawn by $4,276.69. Therefore, between May 25, 2007 and June 11, 2007, Respondent caused at least $146,201.38 belonging to the LMRT to be used for his own business or personal purposes, without authority.

C. Commingling of $300,000 and conversion of $40,451.90
between June 15, 2007 and June 19, 2007

63. On June 11, 2007, Father Jamroz provided Respondent with another $300,000 from several of Father Jamroz' parishoners. As Respondent knew or should have known, he was required to hold the funds he received from Father Jamroz separate from his own property, and to use those funds only for purposes that would benefit the LMRT.

64. On June 11, 2007, Respondent deposited the entire $300,000 referred to in paragraph 63, above, into his firm's general account.

65. As of June 11, 2007, Respondent's firm's general account was overdrawn by $4,276.69. Therefore, on June 11, 2007, by depositing the $300,000 into his firm's general account when that account was overdrawn, Respondent caused $4,276.69 belonging to the LMRT to be used for his own business or personal purposes, without authority.

66. On June 12, 2007, prior to Respondent making any additional disbursements on behalf of the LMRT, First Midwest Bank caused Respondent's firm's general account to be charged $255.75, representing two $38 charges for checks drawn on insufficient funds, and one preauthorized debit unrelated to the LMRT in the amount of $179.75. Therefore, on June 12, 2007, Respondent caused an additional $255.75 belonging to the LMRT to be used for his own business or personal purposes, without authority.

67. On June 15, 2007, Respondent, on behalf of the LMRT, caused $250,000 of the $300,000 referred to in paragraph 63, above, to be paid to Alex D. Moglia, who was the trustee in a bankruptcy matter related to the LMRT.

68. Also on June 15, 2007, Respondent, on behalf of the LMRT, caused $15.66 to be paid from his firm's general account to UPS as payment for delivery of a package relating to the LMRT.

69. Also on June 15, 2007, Respondent, on behalf of Gil and the LMRT, drew check number 1474 on his firm's general account, made payable to Edward Don and Company in the amount of $5,000. Check number 1474 represented a payment on Gil's behalf in connection with a civil matter entitled Edward Don v. Gil, 2006 M1 165962 (Circuit Court of Cook County). Thereafter, Respondent was required to maintain at least $40,451.90 belonging to the LMRT in his firm's general account.

70. Between June 15, 2007 and June 19, 2007, Respondent made no additional disbursements from his firm's general account on behalf of the LMRT.

71. On June 19, 2007, Respondent's firm's general account was overdrawn by $7,535.46. Therefore, between June 15, 2007 and June 19, 2007, Respondent caused at least $40,451.90 belonging to the LMRT to be used for his own business or personal purposes, without authority.

72. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. commingling;

  2. conversion;

  3. breach of fiduciary duty;

  4. failure to hold property of clients separate from a lawyer's own property, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct;

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

  6. 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.

COUNT VII
(Conversion of $181,100 and breach of fiduciary duty to Anna Gil and
the Louise Makuch Revocable Trust)

73. Between September 1, 2006 and November 30, 2007, Respondent used $265,100 belonging to the LMRT to pay attorneys who were then representing Respondent personally in connection with several then-pending matters, as follows:

Attorney or Firm

Subject of Representation

Amount Paid

Augustine, Kern & Levens

Investigations then pending before the Attorney Registration and Disciplinary Commission

$74,800

Robert A. Heap

Criminal proceedings in DuPage County

$97,500

William J. Arendt

Matters relating to Respondent's conduct in representing Gil in divorce and bankruptcy proceedings

$27,500

Michael, Best & Friedrich

Representation of Respondent in Thompson, et al. v. Gustafson, et al., 06 MR 211 (Circuit Court of DuPage County)

$50,500

Henry Vess III

Representation of Respondent in Thompson, et al. v. Gustafson, et al., 06 MR 211 (Circuit Court of DuPage County)

$14,800

 

Total Payments

$265,100.00

74. Respondent paid approximately $77,000 of the $265,100 referred to in paragraph 73, above, between May 25, 2007 and June 14, 2007. Respondent drew the payments he made during that time on the funds provided to him by Father Waclaw Jamroz (referred to in Count VI, above). Respondent drew the remaining $188,100 of the $265,100 referred to in paragraph 73, above, on funds belonging to the LMRT that he obtained from various sources other than Father Jamroz.

75. As Respondent knew or should have known, he was required to hold the funds he received on behalf of the LMRT separate from his own property, and to use those funds only for purposes that would benefit the LMRT.

76. The payments described in paragraph 73, above, benefited Respondent personally, and did not benefit the LMRT, Gil, or Andrew Makuch (referred to in paragraph 29, above).

77. At no time did Gil or Andrew Makuch authorize Respondent to make any of the payments described in paragraph 73, above.

78. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conversion;

  2. breach of fiduciary duty;

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

  4. 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.

COUNT VIII
(Conversion of $25,000 relating to Phyllis Owen)

79. In or about July 2005, attorney John D. James ("James"), who was then Respondent's partner in James, Gustafson & Thompson ("JGT"), agreed to represent Phyllis Owen ("Owen") in connection with the sale of commercial real property located at 427 East Ogden Avenue in Naperville ("the Ogden property").

80. Shortly after he agreed to represent Owen, James received $25,000 as an escrow payment from George Georgeanas ("Georgeanas"), the contract purchaser of the Ogden property. On or about July 20, 2005, James caused the $25,000 to be deposited into the JGT IOLTA (referred to in paragraph three, above). James was required to hold the $25,000 until directed to disburse it as part of the potential sale of the Ogden property.

81. Between August 2005 and February 2006, no closing relating to the Ogden property was scheduled or held, due to an ongoing environmental investigation relating to the property. Therefore, James continued to cause the $25,000 escrow payment to be held in the JGT IOLTA during that time.

82. At no time between August 2005 and February 2006 did Owen or Georgeanas authorize James, or any other person, to use any portion of the $25,000 escrow payment for any purpose.

83. On February 21, 2006, JGT was judicially dissolved. Thereafter, Respondent and James formed the firm of James and Gustafson ("J&G"). At or about that same time, former JGT partners Larry L. Thompson, Ari J. Rosenthal, and Mary S. Watts formed the firm of Thompson, Rosenthal & Watts ("TRW").

84. Between February 21, 2006 and May 2007, no closing relating to the Ogden property was scheduled or held, due to an ongoing environmental investigation relating to the property. Therefore, the $25,000 escrow payment James had received and held on Owen's behalf remained in the JGT IOLTA, which account remained open despite the dissolution of JGT.

85. At no time between February 21, 2006 and May 2007 did Owen or Georgeanas authorize James, or any other person, to use any portion of the $25,000 escrow payment for any purpose.

86. On or shortly before May 10, 2007, at Respondent's direction, Lenore Bright ("Bright"), an employee of J&G, contacted Mary Eyre ("Eyre"), the bookkeeper for JGT and TRW. Bright requested that Eyre cause the $25,000 held in the JGT IOLTA in relation to the Owen-Georgeanas transaction be transferred to the control of J&G.

87. On May 10, 2007, pursuant to Bright's request, Eyre caused check number 7223 to be drawn on the JGT IOLTA, payable to J&G in the amount of $25,000. On or shortly after May 10, 2007, Eyre caused the check to be delivered to J&G.

88. On May 14, 2007, Respondent caused check number 7223 to be deposited into First Midwest Bank account number 8100268499, entitled "James and Gustafson Attorneys At Law IOLTA Client Trust" (referred to in paragraph 31, above, and hereinafter referred to as "the J&G IOLTA"). Respondent and James were both authorized signatories on the J&G IOLTA.

89. At no time did James authorize, or become aware of, Bright's contacts with Eyre concerning the $25,000 held on behalf of Owen; of the existence of JGT IOLTA check number 7223; or of the deposit of JGT IOLTA check number 7223 into the J&G IOLTA.

90. Respondent knew that the $25,000 relating to the Owen-Georgeanas transaction had been received and deposited into the J&G IOLTA, and that he was not authorized to use any portion of those funds for his own business or personal purposes.

91. Between May 15, 2007, and August 15, 2007, without making any disbursements on behalf of or relating to Owen, Respondent drew the balance in the J&G IOLTA to $64.79 by drawing checks on the account, and by making other transfers to a J&G operating account. Therefore, Respondent caused $24,935.25 of the $25,000 held in the J&G IOLTA in relation to the Owen-Georgeanas transaction to be used for his own business or personal purposes.

92. At no time between May 15, 2007, and August 15, 2007, did James become aware of Respondent's use of the $25,000 relating to the Owen-Georgeanas transaction for his own business or personal purposes. Further, at no time did Owen or Georgeanas authorize James, Respondent, or any other person to use any portion of the $25,000 escrow payment for Respondent's own business or personal purposes, or for any other purpose.

93. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. conversion;

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

  3. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

WHEREFORE, the Administrator requests that this matter be referred to a panel of the Hearing Board of the Commission, that a hearing be conducted, and that the Hearing Panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

James A. Doppke, Jr.
Counsel for Administrator
One Prudential Plaza
130 E. Randolph Drive, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   James A. Doppke, Jr.