Filed December 8, 2010
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ANDREA LEIGH WORRELL,
Commission No. 07 CH 60
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on July 13, 14 and 20, 2010 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC") in Chicago, Illinois, before a hearing panel consisting of John M. Steed, III, Chair, Juliette N. Lilie, and K. F. Kitchen, II. Lea S. Black and Wendy J. Muchman represented the Administrator of the ARDC. Respondent Andrea Leigh Worrell appeared and was represented by George B. Collins and Theresa M. Gronkiewicz.
On June 20, 2007 the Administrator filed a two-count Complaint against Respondent and on May 13, 2008 an Amended Complaint was filed. Count I of the Amended Complaint alleged that Respondent engaged in misconduct in connection with handling financial matters for her step-father, Charles Dancik. Count II alleged that she engaged in misconduct, including the commission of a criminal act, by failing to provide accurate information to a public aid coordinator in relation to Dancik's application for public assistance. The specific charges of misconduct included breach of fiduciary duties, overreaching, engaging in a conflict of interest,
committing a criminal act, making false statements, engaging in conduct prejudicial to the administration of justice, and engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute.
Respondent filed an Answer to the Amended Complaint in which she admitted some of the factual allegations, including the allegation that she pled guilty to the Class A misdemeanor Attempt State Benefits Fraud, denied other factual allegations, and denied engaging in any professional misconduct.
The Administrator's evidence consisted of four witnesses and twenty-seven exhibits that were admitted into evidence. Respondent testified on her own behalf, presented five witnesses and submitted six exhibits that were admitted into evidence.
Respondent testified that her parents, Roger and Anita Seiwert, divorced when she was a teenager and when she was about fifteen, her mother married Charles Dancik. After they married, Anita and Charles Dancik purchased property at 6404 Clark Drive in Woodridge Illinois (the "Woodridge property"). Anita provided the down payment, and Dancik paid the mortgage. Pursuant to a 1980 trust agreement which was signed by both Anita and Charles Dancik, on Anita's death her 50% interest in the home would go to Respondent, subject to a life estate held by Dancik. On Dancik's death, his 50% share would pass to Anita if she were still living and if she were not living, to Dancik's sister, Lynne Peary, and then to his brother. (Tr. 25, 32-34, 467, 530; Adm. Ex. 1).
Respondent testified she lived with her mother and Dancik until she was eighteen or nineteen, but then moved out and has been self-supporting since that time. She earned an associates degree at age twenty-six, received a bachelor's degree from Northwestern University in 1994, and then attended law school for three and one half years. She became a licensed attorney in 1999 and has had her own practice for approximately ten years. Since 1992 she has been married to Dwayne Worrell, who works as a carpenter. (Tr. 466-74).
Respondent testified her mother worked during the marriage to Mr. Dancik and continued to work even after she was diagnosed with cancer in 1994. Dancik, who was a realtor, worked only sporadically. Respondent admitted she was frustrated that Dancik did not support her mother financially, did not take her to doctors' appointment or visit her in the hospital, and spent money on alcohol. When Respondent's mother died in 1995, Dancik did not contribute to the funeral expenses. (Tr. 26-29; 475, 531-32; Adm. Ex. 2).
As to Respondent's own relationship with Dancik, she testified Dancik sometimes verbally demeaned her as she was growing up, including referring to her as a "bitch" in front of other people. After her mother's death, however, their relationship was "really good" and typical for a "father-daughter." They saw each other several times each week, telephoned each other frequently, had keys to each other's homes and spent father's day and other holidays together. Respondent helped Dancik with his cleaning, cooking, grocery-shopping, laundry and whatever needed to be done. Respondent has little family other than Dancik, and she testified she is certain he loves her. (Tr. 29, 31, 476-77, 496-97, 500-501, 505).
Respondent testified that Dancik abused alcohol during her mother's illness, drank regularly after her mother died in 1995, and is considered to be an alcoholic. Respondent stated she worried about Dancik's drinking and suggested he try Alcoholics Anonymous, but he
refused. By 2000 she testified his drinking was causing him to have bouts of short term memory loss, his home in Woodridge was in disrepair and his physical condition was questionable. Respondent's husband Dwayne made repairs on Dancik's house so Dancik would have a place to live and Dancik compensated Dwayne for some of this work on the house. At that time Respondent owned a one-half interest in the Woodridge property, by virtue of the 1980 land trust agreement and her mother's death, subject to the life estate held by Dancik. (Tr. 30-31, 34, 479, 497, 547-48).
In November 2000 Dancik injured himself in a fall and was taken to Good Samaritan Hospital, where he stayed for one week before being transferred to Hines VA Hospital. Respondent testified at that time Dancik had no health insurance. While Dancik was at Hines, Respondent visited him anywhere from one to three or more times each week. She has learned that he was diagnosed with Wernicke-Karsakoff Syndrome, but was not aware of the diagnosis at that time. (Tr. 35, 480-81, 490).
While Dancik was a patient at Hines, Respondent spoke to his sister, Lynne Peary, at least several times a week. During that time Respondent learned, either from Peary or Dancik, that Dancik was limited to two months of inpatient care at Hines. Respondent testified she and Peary did not discuss seeking public aid for Dancik. (Tr. 482-83).
On December 5, 2000, while a patient at Hines VA Hospital, Dancik signed a modification to his 1980 trust agreement which changed the beneficiaries of the agreement. The amendment reflected that upon Mr. Dancik's death, his interest in the Woodridge property would now pass to Respondent rather than to his sister and brother. Respondent stated that the document was prepared by attorney Susan Davidson, who was Respondent's friend and law practice mentor. Respondent contacted Davidson and requested her to prepare the change in
beneficiaries. Respondent testified she told Davidson this change was requested by Mr. Dancik. Respondent admitted she told Davidson what information to include and asked her to take the document to Dancik while he was in the hospital. Respondent was at the hospital on the day the document was signed but was not present for all of the discussion between Dancik and Davidson. (Tr. 37-38, 41, 485-86, 550; Adm. Ex. 3).
Respondent testified that although Dancik was physically weak on December 5, he was alert and jovial. Respondent recalled speaking to Dancik's doctors and nurses, and claimed no doctor ever told her that Dancik was incompetent and unable to transact business. She noted Dancik had experienced short-term memory loss in the past due to his heavy drinking, but stated he did not have access to alcohol during his hospitalization. (Tr. 45, 52, 488-89, 553).
Respondent was questioned regarding notations in Dancik's Hines hospital records. The records from December 5, 2000 indicate that at 1:28 p.m. he was seen with his family present and had no complaints. From 3:30 p.m. to 12:00 midnight he was in restraints because he was "confused, agitated and uncooperative." The records also indicate he was in soft cuff restraints that day, was confused to time and place, and was confabulating. Respondent claimed she never saw Dancik in restraints. (Tr. 44-46, 490, 520; Adm. Ex. 20).
On December 6, 2000, Dancik was transferred to Fairview Nursing Home where, according to Respondent, his care was covered by VA benefits. The records from that facility indicate that he was admitted with dementia, a history of alcohol abuse, and mental status changes. Respondent disagreed with the diagnosis of dementia, and stated Dancik only exhibited symptoms of dementia when he was drinking. The Fairview records note on Dancik's first day at the facility he was confused, confabulating, and unable to return to independent living. (Tr. 46-50, 483-84, 549; Adm. Ex. 24).
Respondent testified that on January 11, 2001 while Dancik was still at Fairview, he signed another document prepared by Susan Davidson. This document was a power of attorney which gave Respondent the authority to sign checks on his behalf. Prior to that time, Respondent's practice was to gather bills from Dancik's house, write checks on his account, and then bring the checks to him for his signature. Respondent claimed the decision to have Dancik sign a power of attorney was not hers, however she admitted she asked Davidson to prepare the document. The individuals present at Fairview on January 11, 2001 in Mr. Dancik's room included Davidson, Respondent, Respondent's husband and Bonnie and Bill Valiant. Respondent testified Mr. Dancik exhibited no memory deficits on that day. (Adm. Exs. 52, 481, 487, 546, 550; Adm. Ex. 4).
After Dancik signed the power of attorney, Respondent began paying his bills, including bills submitted by her husband for repairs to Mr. Dancik's Woodridge property. Respondent admitted she owed certain fiduciary duties to Dancik because she had power of attorney. (Tr. 60, 491).
Records in evidence from Fairview, dated January 31, 2001, reflect when Respondent was informed that Dancik had been deemed capable of making his own decisions, she became upset and disagreed. The records also note when Respondent learned Dancik could leave the facility she "became even more upset claiming that the medical director had no clue," asserted that Dancik "was an alcoholic and would harm himself or others," and expressed her desire for a second opinion. Respondent testified she had hoped if Dancik stayed in the hospital, where he was sober, he would not drink when he returned home. She acknowledged she did everything she could to keep him in a hospital or nursing home until she felt he could be sober, and was upset that he could not be held against his will. (Tr. 54-56, 478, 536; Adm. Ex. 24).
Respondent acknowledged that she changed the locks on the Woodridge home while Dancik was at Fairview, but claimed she did so with his knowledge and at his request to keep one of his friends out of the house. She testified she gave Dancik a key to the new locks. (Tr. 55, 516, 553-54).
On February 7, 2001 Dancik left Fairview against medical advice and returned to his Woodridge home. At that time Respondent returned his financial documents to him, and checked on him daily. She believed he consumed at least one large bottle of hard liquor every day. (Tr. 492-94, 531).
Dancik stayed at his home until April 1, 2001, when another fall precipitated his admission to Edwards Hospital. On April 5, 2001, he was transferred to Hines VA Hospital. (Tr. 56-57; Adm. Ex. 23). On April 6, 2001, while at Hines, Dancik signed another document which affected his ownership of the Woodridge home. This document was prepared by Respondent and entitled "Assignment of Beneficial Interest." The document transferred Mr. Dancik's fifty percent beneficial interest in the Woodridge home to Respondent. There was no consideration given by Respondent to Dancik in exchange for the assignment of interest. Respondent acknowledged that she benefited from the assignment, in that it gave her full ownership of the Woodridge home. She claimed her purpose in transferring the house to herself was to obtain public aid for Dancik. Respondent agreed it would have been a better practice for another attorney to prepare the document and counsel Dancik with respect to the transfer. (Tr. 57, 60-61, 517; Adm. Ex. 5).
Hines Hospital records from the day this document was signed by Mr. Dancik reflect he was in restraints between the 7:30 a.m. to 4:00 p.m. nursing shift because, among other reasons, he was "unable to follow instructions" and "confused/agitated/uncooperative." Records from the
3:30 pm. to 12:00 midnight shift indicate he was in restraints for two hours for the same reasons. However, Respondent testified she never saw Dancik in restraints. Physician notes from that date reflect Dancik was oriented only to his name and social worker notes reflect Dancik was "confused and agitated." . (Tr. 62-65, 520; Adm. Ex. 20).
On April 10, 2001 Dancik was transferred to Elm Brook Healthcare and Rehabilitation Center. The nursing notes from April 11, 2001 state that Dancik was alert and oriented, but forgetful. On that same date a physician noted Dancik was "alert, confused, disoriented to time," and "unable to recall-recent events." Under "decision-making ability," the physician circled "capable" but noted that Dancik has "poor memory." On April 12, 2001 Dancik had an altercation with the staff and as a result, was transferred to Elmhurst Hospital. (Tr. 66-67, 70, 526; Adm. Ex. 21).
The records from Elmhurst Hospital reflect on admission Dancik's symptoms included: confusion as to place, time, and situation, giving irrelevant answers, confabulating, and paranoid delusions. A Master Treatment Plan, dated April 13, 200, identified one of Dancik's problems as psychosis related to illogical form of thought and speech. A Restraint/Seclusion order, dated April 17, 2001, directed that Dancik be placed in hard locked restraints for four hours because he exhibited behavior that was potentially harmful to him. Progress notes from that same date indicate Dancik was still "confused to place and situation," "has memory lapses" attempted to fight with his roommate, and was unable to follow verbal directions. A treatment plan review, dated April 17, 2001, noted Dancik was still very confused and delusional, and "does not understand why he is here." (Tr. 70-73; Adm. Ex. 22).
On April 18, 2001, Dancik was discharged back to Elm Brook Healthcare and Rehabilitation Center. On his admission to Elm Brook, Dancik was noted as being not oriented
to place or date. The Elm Brook records of April 19, 2001 indicate that he was not allowed to leave the building without supervision, and he was alert and oriented but having trouble with his short-term memory. (Tr. 74-75; Adm. Exs. 21, 22).
Respondent testified while Dancik was at Elm Brook, his lack of health insurance became a matter of concern to herself and to Dancik's sister, Lynn Peary. Respondent had discussions with Peary about transferring assets out of Dancik's name and into Respondent's name so that he could obtain public aid. She informed Peary that she transferred Dancik's property to herself and that she was spending down his money to pay off the mortgage on the house. She claimed she and Peary discussed the public aid matter whenever they talked, which was at least several times a week. Respondent testified at the time of the transfers did not believe she was doing anything wrong, but now realizes her actions were improper. Respondent admitted she knew it was wrong to defraud public aid. (Tr. 497-500, 505, 543).
On April 19, 2001 Dancik signed another document which affected his ownership of property. This letter, prepared by Respondent, informed LaSalle Bank he wished to relinquish his life estate in the Woodridge property. Respondent knew that by signing the document, Dancik gave up his legal right to remain in the house. Respondent admitted she did not advise Dancik to seek independent counsel or advise him of her potential conflict of interest. She agreed the better practice would have been to give Dancik that advice. She did tell Dancik, for reasons related to obtaining public aid, he needed to sign over the house in order to stay in it. (Tr. 58, 75-77, 522; Adm. Ex. 6).
Respondent acknowledged the letter was prepared, in part, to defraud public aid and she knew that action was wrongful. She stated that the document was also intended to help Dancik stay in the house. She denied any intent to move Dancik out of the house; rather, she claimed
she wanted to make the house livable for him for as long as he wished to stay in it. She stated she told Dancik's sister of her actions and informed her that Dancik could live in the house for the rest of his life. (Tr. 76, 500, 523).
Respondent testified she used her power of attorney on April 13, 2001, May 2, 2001, and May 21, 2001 to write checks on Dancik's bank account in the amount of $318.18 to pay the mortgage on the Woodridge property. Respondent stated she had no money of her own in that account. She used Dancik's money even though he no longer had any ownership interest in the property and, after April 19, 2001, no longer had a life estate in the property. Respondent denied that the payments were made to defraud public aid. She stated that on three occasions she used her power of attorney to pay Dancik's medical bills of $125 or $150. (Tr. 79-84; Adm. Ex. 7).
Respondent acknowledged that, on April 27, 2001 and May 3, 2001, she drew checks on Dancik's Morgan Stanley Dean Witter account for $5,000 and $10,000, respectively. The checks were endorsed for "deposit only" and were deposited into Dancik's checking account for payment of his household bills and house repairs, even though he did not have an ownership interest in the Woodridge home at that time. (Tr. 102-104, 503, 539-40; Adm. Ex. 11).
Respondent testified that Dancik left the Elm Brook facility on June 14, 2001 against medical advice and returned to the Woodridge house. Thereafter Respondent checked on him every day, and her husband continued to handle small repairs. Respondent recalled that her fear that Dancik would begin drinking after he left the nursing home proved to be true. (Tr. 78, 507-509, 554).
In June 2001 Respondent agreed to represent Dancik in obtaining funds owed to him by his first wife, Shirley Metoyer, from the sale of their former marital home. Respondent's fee agreement with Dancik provided that she be paid a retainer of $5,000 as well as an hourly rate.
She acknowledged she could have waived her fee but claimed Dancik felt she should be paid. Respondent used her power of attorney to obtain the $5,000 retainer from Dancik's investment account. (Tr. 84-85, 504, 541-42; Adm. Exs. 8, 11).
Between June 19 and July 11, 2001 Respondent wrote six letters on behalf of Dancik to collect the money from Metoyer. Her efforts were successful and on or about August 1, 2001 she received a check for $19,244.11. She endorsed this check using her power of attorney, then cashed it and purchased a cashier's check in the same amount. She used the entire cashier's check, along with some extra funds from Dancik's investment account, to pay off the mortgage on the Woodridge property. However, at that time Dancik had no ownership interest in the property and no legal right to remain on the property. Respondent denied that her purpose in using Dancik's money to pay off the mortgage was for the purpose of defrauding public aid or to benefit herself. She claimed it was done to benefit Dancik. She testified she apprised him of her actions. (Tr. 86-93, 96-97, 520-21; Adm. Exs. 9, 13).
Respondent testified she later learned attorney Nancy Smith was hired to have a guardian appointed for Dancik. Respondent was not opposed to that plan and believed, because of Dancik's drinking, he could benefit from having a guardian. (Tr. 510).
Respondent acknowledged a civil suit against her in 2002 on behalf of Mr. Dancik requesting an accounting and cancellation of instruments relating to the Woodridge property. The case was settled in November 2008. As part of the settlement, Respondent transferred 100% of the interest in the Woodridge property to Dancik and paid him $37,618.41. (Tr. 121, 125, 510, 512; Adm. Ex. 16).
Susan Davidson, a licensed attorney since 1980, testified she is a sole practitioner concentrating primarily in the areas of real estate transactions and estate work. She tries to be careful in her dealings with clients and knows that their interests are her first priority. (Tr. 349, 395).
Davidson met Respondent in 1998 when Respondent was still in law school, and then mentored her after she graduated. They have become friends and have developed both a social and professional relationship. Since 2000 Davidson and Respondent have been covering each other's practices during vacations, and they have referred matters to each other. (Tr. 350-52, 381-83).
Davidson testified that Respondent contacted her around the beginning of December 2000 and indicated that her step-father, Charles Dancik, had requested a change in the beneficial interest of a land trust and wanted the change made right away. Respondent asked Davidson to prepare a modification to Dancik's trust agreement and Davidson, who had prepared other modifications to trust agreements, agreed to draft the document. At that time Davidson was advised by Respondent that Dancik was hospitalized due to a fall but she was not told of Dancik's diagnosis, any short term memory issues, or concerns about his drinking. Davidson was not aware of any medical reason why the modification had to be executed at the hospital. She acknowledged that typically documents would be signed at her office. (Tr. 352-53, 397-401, 414-16).
Davidson learned from Respondent at some point that Dancik had been an alcoholic for many years, and that Respondent had major concerns about his drinking. She was never informed, however, of his diagnosis or any concerns regarding his memory. (Tr. 378-79).
Based on information given to her by Respondent, Davidson prepared the modification and then met with Dancik at Hines VA Hospital on December 5, 2000. She believed she drove to the hospital with Respondent and Respondent's husband. Following her standard practice, Davidson talked to Dancik privately to evaluate his capability to sign the document, and to ensure that he was comfortable with the fact that Respondent had contacted her and provided information to her. During their conversation Dancik was sitting up in bed and was not restrained. (Tr. 354-56, 399-400, 404; Adm. Ex. 3).
Davidson testified she showed Dancik the modification, went through the language with him line by line, and discussed the consequences of moving the beneficial interest in the Woodridge property to Respondent and away from his own family. Dancik read the document and they discussed his financial assets. When Dancik spoke of his family, he appeared to understand what he was saying and did not say anything unusual. Davidson testified Dancik was coherent, oriented to person and place, and was able to articulate his intent to her. He appeared to be a little tired, but otherwise was in good health and she had no difficulty understanding him. Davidson stated she had a previous client who suffered memory loss and had some concerns about that client signing a power of attorney. She did not have the same concerns about Dancik, and does not believe that someone with memory loss is prohibited from signing a legal document. (Tr. 357-59, 362-63, 407-08).
Davidson observed Dancik sign the modification document and then notarized his signature, although notarization was not required and it was not her common practice to do so. She recalled that they discussed a power of attorney for Dancik and, at his request, she advised him she could prepare the document. Davidson recalled that her meeting with Dancik lasted
about one half hour, after which Respondent and her husband came into his hospital room. (Tr. 360-61, 364-65, 410-11; Adm. Ex. 3).
After the meeting on December 5, 2000 Davidson prepared a power of attorney for Dancik, but had no further contact with him until she took the document to him at Fairview Nursing Home on the afternoon of January 11, 2001. She stated she had met with clients at nursing homes or residential facilities on prior occasions, and did not think it was unusual to be asked to meet with Dancik at Fairview. At that time Davidson, Dancik, Respondent and her husband, Bonnie and Bill Valiant, another patient, and the patient's visitor were in the room. Davidson identified Bonnie Valiant as a person she met in 2000 and has socialized with less than five times. She and Valiant attend the same church and she considers Valiant to be a friend. (Tr. 366, 370, 389, 404, 410, 412, 417; Adm. Ex. 4).
Davidson testified she spent at ten minutes going over the power of attorney with Dancik line by line and explaining it to him, and Dancik asked questions as they went through the document. Dancik appeared to understand what Davidson was telling him, was coherent, did not say anything inappropriate or unusual, and did not appear to be under the influence of alcohol. Davidson stated that during those ten minutes Respondent, her husband, and Bonnie Valiant were in and out of the room. (Tr. 371-72, 405,408).
After discussing the document with Dancik, Davidson called Respondent into the room to sign the document, and called Bonnie Valiant in to witness Dancik's signature. Davidson observed Dancik initial each page of the document and sign the document. She notarized his signature, thereby certifying that she witnessed his signature and that he signed the document freely and voluntarily. Respondent and Valiant then conversed with Dancik and he appeared to
understand the conversation. Davidson was not aware of Dancik's diagnosis at the time. (Tr. 372-74, 405; Adm. Ex. 4).
Davidson testified she believed, based on her observations of Dancik on December 5, 2000 and January 11, 2001, that he comprehended what he was signing. Davidson stated that Dancik was her client, and she had no obligation to Respondent. She did not receive any payment for the work she did for Dancik. (Tr. 374, 396, 410).
Davidson knew that Respondent had taken legal fees from Dancik, and that Dancik paid Respondent's husband to work on the Woodridge house. She also knew that Respondent used Dancik's money to pay off the mortgage on the house, but did not know that title to the house was in Respondent's name when the payment was made. She and Respondent did not discuss Respondent's intent to spend down Dancik's assets so he could be placed on public aid. (Tr. 378-80, 384).
Davidson testified that over the years she and Respondent have discussed the nature of the disciplinary proceeding and the potential impact on Respondent's livelihood. Davidson does not want to see Respondent get hurt, and regrets that Respondent has to go through the proceeding. Davidson has spoken to attorneys, realtors and clients who know Respondent, and among that community Respondent has an excellent reputation for honesty and integrity. She has never heard any negative comments about Respondent. (Tr. 376, 394).
Charles Dancik, who attended the hearing with his caretaker, testified he was married to Respondent's mother, Anita, and has known Respondent since she was thirteen or fourteen years old. Regarding his education and employment, Dancik stated he has taken real estate appraisal courses at the college level but does not have a college degree. After he lost a job with Sears, he
had difficulty finding work. Dancik admitted to having occasional problems with his memory. (Tr. 170, 195-96, 199).
Dancik believes he and Respondent got along reasonably well for being stepdaughter and stepfather, although their relationship was a "new ball game" after Respondent's mother died. He did not recall having meals at or visiting Respondent's home in the years leading up to 2001, although he imagined he spent holidays at her house. He did not recall Respondent coming to his home for meals but believed she did visit him at his house on occasion. (Tr. 196-97, 201).
Dancik identified a Veterans Administration financial status form which he completed in August 2000 to obtain financial assistance for his health problems. In the space where he was to provide the value of any "stocks and other bonds," he drew a line even though he owned a stock account that had passed from his late wife's parents to his wife and then to him. Dancik did not recall giving the answer any thought whatsoever. He acknowledged stating in the application that his wife had been diagnosed with a devastating disease in 1992, he was unable to secure employment after being terminated from his last job, and he was living off the good will of friends, neighbors and relatives. (Tr. 191-93; Resp. Ex. 4).
Dancik reviewed the December 5, 2000 document which amended his trust to provide that, upon his death, his 50% interest in the Woodridge property would pass to Respondent. Dancik stated the signature does not appear to be his, and he does not recall the circumstances of how the document was signed. (Tr. 171; Adm. Ex. 3).
Dancik could not think of any way Respondent was helpful to him during his hospitalization at Fairview other than taking care of the house. He did not recall Respondent visiting him at the hospital or speaking to him on the telephone, but did remember that his sister visited him. Dancik had no recollection of being asked questions from a document entitled
"Spiritual Screening/Religious Needs Survey," and had no recollection of responding that the most important thing in his life has been his late wife and "young adult stepdaughter," or identifying his stepdaughter as a person who has been supportive at this time in his life. He acknowledged that the first statement was probably true as of December 8, 2000, the date on the survey. (Tr. 174-77; Adm. Ex. 24).
With respect to the January 11, 2001 document giving power of attorney to Respondent, Dancik identified his initials at the bottom of each page, but did not know the circumstances under which they were placed there. Likewise, he identified his signature on the April 6, 2001 document assigning the beneficial interest in the Woodridge property to Respondent and the April 11, 2001 letter relinquishing his life estate, but did not recall the circumstances of signing those documents. (Tr. 171-72, 185; Adm. Exs. 4-6).
Dancik identified a check he wrote on February 22, 2001 and stated he had access to his checking account when he wanted to write a check. He also knew how to reach his stockbroker. (Tr. 196; Adm. Ex. 3).
Dancik recalled signing medical consent forms at the Fairview Nursing Home, and believed he also signed consent forms at Edwards Hospital and Hines VA Hospital. When he left Elmhurst Hospital on April 18, 2001, he signed a document stating that he understood his discharge instructions, which included the dosage for eleven medications. Dancik identified his signature on an April 19, 2001 Elm Brook document entitled "Informed Consent for Psychotropic Medication" but did not recall signing it and could not state why Zyprexa was prescribed for him. He stated that his caretaker ensures that he takes his pills on a regular and prompt basis. (Tr. 179, 182-84, 200; Adm. Exs. 21, 22).
Dancik testified he walked out of two facilities pursuant to his own decision. Since leaving the last facility, he has been living by himself in the Woodridge house. He denied having any intention to give Respondent his house while he was still alive, or to give her his interest in the house and then have her pay off the mortgage with his funds. Dancik denied receiving any assistance from public aid, and stated the VA takes care of him. (Tr. 172, 180-81, 186, 194).
Dancik identified an August 30, 2002 petition to have himself appointed as Administrator of his late wife's estate but he did not recall signing it. He understood that Respondent had also filed a petition to be executor or administrator of her mother's estate. Dancik testified he was willing and able to undertake the responsibilities associated with being the administrator of an estate. (Tr. 187-88, 202-203; Resp. Ex. 5).
Dancik stated that he "used to" consider Respondent his stepdaughter, but their relationship changed after he realized she had tried to take advantage of him while he was hospitalized. He generally remembered the lawsuit that was filed against Respondent, but does not believe it was settled or that he received any money. He could not recall the last time he saw Respondent. (Tr. 170, 187, 199, 201).
Lynn Peary, a resident of Ludington, Michigan, testified she has two brothers, one of whom is Charles Dancik. Peary is currently retired but formerly worked as a medical transcriptionist. (Tr. 206-207, 220).
During the 2000-2001 time period, Peary lived in Michigan with her husband, her father, and her father-in-law. At that time she had a good relationship with Dancik, but did not see him often because of the distance and because she was caring for her father who suffered from health
problems. She stated that her father tried to talk to Dancik on a daily basis. Peary acknowledged that Dancik had been drinking for as long as she could remember, and she often thought he drank too much. (Tr. 207-209).
When Dancik was hospitalized and in nursing homes in 2000 and 2001, Peary was in contact with him or his medical providers almost every day. Several of her conversations with Dancik caused her to be concerned about his memory. In November 2000 she learned that he was diagnosed with Wernicke-Korsakoff Syndrome which, as she understood from the doctors, resulted from his alcoholism. She learned that symptoms of the syndrome include very poor short term memory and confabulation. Peary was in communication with Respondent at that time and believed she informed Respondent of Dancik's diagnosis. (Tr. 210-16).
Peary stated she was aware of the land trust agreement between Dancik and his late wife whereby Peary and her other brother were to inherit Dancik's half of his home upon his death. Neither Dancik nor Respondent told her of the December 5, 2000 revision to the trust that made Respondent the beneficiary of Dancik's half-interest. Peary stated that she kept notes of her conversations with Respondent and Dancik regarding Dancik's condition and after reviewing her notes of December 5, 2000, she recalled that she called her brother on that date and Respondent was with him at the time. Peary did not learn of the change to the land trust until months later when she received the document from Dancik's attorney, Nancy Smith, and she only recently saw the document which effected that change. (Tr. 209, 218-21; Adm. Ex. 3).
Peary testified she did not learn that Dancik had signed a power of attorney until she made repeated requests that Respondent send Dancik's electric bill and other bills to her. Finally, Respondent told Peary that she had power of attorney for Dancik and would pay the bills herself. (Tr. 222-23, 245).
Regarding Dancik's April 6, 2001 transfer of his 50% ownership interest in the Woodridge house to Respondent, Peary testified on April 7, 2001 Respondent told her that Dancik was in the process of transferring his 50% interest in the Woodridge home to Respondent. Peary was aware that Respondent was not giving any money to Dancik for his interest in the home. Peary acknowledged Respondent did not seem to be hiding the transaction. Peary acknowledged she never objected to the transfer or questioned it, because she assumed it was what her brother wanted. Upon learning of the transfer, Peary was concerned that Dancik would not have sufficient assets in the event he had to stay in a nursing home or other facility. (Tr. 223-25, 242-43, 246-47; Adm. Ex. 5).
Peary did not recall when she became aware that Dancik also relinquished his right to live in the house during his lifetime. She stated that because both her father and Dancik had been realtors, her family placed a high value on a person's house and she did not believe Dancik would sign away his right to live in his home. (Tr. 225, 227; Adm. Ex. 6).
Peary was aware that Respondent had a plan to spend Dancik's money on repairs to the Woodridge property. Peary recalled Respondent and her husband informed her of problems with the deck, two bathrooms, the siding, the basement, as well as dirt, diarrhea, garbage and numerous empty alcohol bottles around the house. As of April 15, 2001, Peary informed Dancik of the repairs and he understood they were being made. Dancik told Peary at that time, however, that he believed Respondent was trying to sell the house out from under him, and that Respondent and her husband were trying to "divvy up the pot." (Tr. 230, 245, 249, 260, 263-64).
Peary testified she thought Respondent's fee was larger than it should have been when Respondent represented Dancik in obtaining money from Dancik's first wife. Peary admitted Respondent informed her of the fee, the transfer of Dancik's interest in the Woodridge property,
the power of attorney and that she paid the mortgage to the Woodridge property with Dancik's money. (Tr. 265, 267).
After Dancik returned to the Woodridge house in the summer of 2001, Peary had a telephone conversation with Respondent during which Respondent complained about Dancik's drinking and stated that she owned the entire home and could ask Dancik to leave. In e-mails from Peary to Respondent in August 2001 Peary asked for copies of the documents transferring Dancik's interest in the property. She testified she wanted to show them to Dancik, who repeatedly stated that he had not given up his half of the house. Peary noted in one of her e-mails that Dancik's drinking was causing a terrible situation for him, and she hoped the lawyer she had retained would be able to provide advice as to how they should proceed. Peary testified she felt an attorney was also necessary because she did not want to step on Dancik's rights. Peary denied receiving the requested documents from Respondent, but did receive them after Respondent sent them to attorney Smith. (Tr. 231-33, 239-40; Adm. Ex. 18).
Bonnie Valiant testified she has an undergraduate degree in education and completed some postgraduate work in speech theory. She has taken classes on how to assess an individual's competence and comprehension, and she has received training in both counseling and working with stroke patients and the elderly. While working as a speech therapist for a school district, she developed an expertise in determining a person's general comprehension and whether the person understands instruction. (Tr. 420-22).
Valiant stated she had known Respondent's mother, Anita, since college and they were best friends for forty years. After Anita married Charles Dancik in the late 1970s, Valiant and her husband socialized with them. Valiant was aware that Dancik was a heavy drinker, that he
had lost jobs and had car accidents due to his drinking, that his and Anita's social life suffered because of the drinking, and that Anita was frustrated with his lack of understanding of her role as a mother. When Anita died, Valiant contributed to the cost of the funeral because Dancik had no money to pay for it. (Tr. 423-25, 437-40, 447-48).
Valiant testified that Respondent has always been a special person in her life, and their relationship became even closer after Anita died. Valiant has spent birthdays and holidays with Respondent and, along with Dancik, attended Respondent's law school graduation in 1999. Valiant acknowledged she would not want to hurt Respondent. (Tr. 426, 441-43).
Valiant stated that Respondent's initial relationship with Dancik was "stormy," and later Respondent was angry and frustrated that Dancik did not show more interest in her mother's health condition. Valiant stated that she or Respondent, rather than Dancik, transported Anita to her doctors' appointments and visited her in the hospital. Dancik was unemployed during most of Anita's illness, while Anita continued to work to pay medical and household bills. Valiant acknowledged that she and Respondent were angry with Dancik. (Tr. 443-46).
In December 2000, when Valiant learned from Respondent that Dancik had been admitted to the Fairview Nursing Home, she and her husband visited him at that facility. Valiant recalled that Dancik recognized them, was happy to see them, engaged in social conversation, and gave them a walking tour of the facility. She described Dancik as clean-shaven and sober. Valiant was never told by Respondent that Dancik had memory problems related to his alcoholism, and she was not aware of Dancik's medical diagnosis. (Tr. 427-31, 450-51).
Valiant visited Dancik at Fairview on approximately five more occasions, including January 11, 2001. On that date, Valiant was in the room with her husband, Dancik, Susan Davidson, Respondent, and Respondent's husband. Valiant stated she has seen Davidson at
church and considers her to be a friend. Valiant testified she was present when Davidson talked to Dancik about giving his power of attorney to Respondent. Dancik appeared to understand what was being said, was coherent, and did not say anything unusual or inappropriate. Dancik had told Valiant on a prior occasion that he wanted Respondent to have power of attorney because he was not certain how long he would be at the facility and he did not want Respondent to run back and forth for his signature on checks. Valiant believed that Dancik knew exactly what he was doing when he signed the document and that he did so willingly. She observed Dancik sign the document, and she signed as a witness. Valiant denied having any knowledge of Dancik's transfer of assets to Respondent, or knowledge of the extent of Dancik's estate. (Tr. 432-35, 443, 452-54, 459-60; Adm. Ex. 4).
Valiant testified she serves on various committees for the Spina Bifida Association, and has asked Respondent to help her out with fundraising and other activities. Valiant stated Respondent has been very helpful and is trustworthy in handling funds. (Tr. 435-36).
Additional Documentary Evidence
Records pertaining to Dancik's confinement in various hospital and care facilities between November 2000 and June 2001 were received into evidence.
Respondent testified that in June 2001 she was asked by Bridget McGee, the public aid coordinator of Elm Brook Healthcare and Rehabilitation Center, to fill out a form in connection with Dancik's application for public aid. The form, entitled ‘Documentation Required for Public Aid Application," listed various types of documents, instructed the person completing the
questionnaire to circle "yes" or "no" next to each item, and requested the return of the completed form with the documents. (Tr. 97-98, 498; Adm. Ex. 10).
Item number ten on the form requested "Copies of stocks, bonds, or certificates of deposits." Respondent acknowledged she did not circle any response even though she knew Dancik had a stock account with Morgan Stanley Dean Witter and owned stocks valued at more than $25,000. In fact, in April 2001 she had signed documents relating to that account, one of which allowed her to receive duplicate monthly account statements and to withdraw assets from the account. She stated that the account originally belonged to her maternal grandparents, then passed to her mother, and then to Dancik. Respondent claimed she and Dancik had an understanding that the account was hers, but she never used any money for herself. Even though Respondent received monthly statements for the investment account, she did not provide any documentation of Dancik's stocks to McGee, nor did she inform anyone at Elm Brook that Dancik owned stocks. She admitted she purposely withheld the information. (Tr. 97-100, 102, 110-11, 498, 501-502, 538; Adm. Exs. 10, 11).
Item number twelve on the form from McGee asked for a copy of real estate deeds. Respondent circled "No" and wrote in "none he owns" because Dancik had transferred his property to her and did not own any real estate at that time. (Tr. 111-12; Adm. Ex. 10).
Question fifteen asked if the applicant had "[s]old given away or transferred any assets such as savings accounts, cash, house, land, insurance, stocks, C.D.'s, etc within the last 36 months," Respondent did not circle any response and wrote "looking into" next to the question. Respondent acknowledged knowing that Dancik had transferred his interest in the Woodridge property two months earlier and that a transfer during this period would have made Dancik ineligible for public aid. She admitted purposely withholding the information, and that her
failure to answer the question was dishonest. At trial, Respondent claimed she informed McGee that Dancik had transferred his interest in the house, however, in a prior sworn statement she testified she did not have a conversation with McGee about the fact Dancik gave away the property. (Tr. 112-13, 116-17).
Respondent signed the form, dated it June 28, 2001, and faxed it to McGee. Respondent knew that McGee would be using the form to assist her in completing the public aid application for Dancik, and was aware that some urgency was involved. (Tr. 98-99, 114, 506; Adm. Ex. 10).
On June 29, 2001, McGee faxed to Respondent a list of questions regarding Dancik's education, military status, occupation and value of his car. Respondent answered those questions but did not correct any of her earlier omissions or inform McGee that she was attempting to collect funds on behalf of Dancik. She stated she had no further conversations with McGee and never saw the completed public aid application before it was filed. (Tr. 114-15, 506; Adm. Ex. 10).
Dancik's public aid application was approved in August 2001. Respondent acknowledged receiving notice of the approval, which included an explanation of how the amount of public aid was determined. The calculation sheet listed Dancik's "securities (stocks, etc.)" as "0." Respondent took no action to correct that information or to notify Public Aid that Dancik had received $19,000 owed to him by his ex-wife, or that Respondent received $5,000 from Dancik for attorney's fees. Respondent denied that she knew Dancik had an ongoing obligation to report any changes in assets even though that obligation is noted on the public aid approval form. (Tr. 117-21; Adm. Ex. 14).
Respondent acknowledged that on August 4, 2004 the DuPage County grand jury filed an indictment charging her with seven counts of financial exploitation of an elderly person, four
counts of theft, and one count of state benefits fraud in relation to her contacts with Dancik and his estate. Respondent pled not guilty to those charges, and the indictment was dismissed. On September 19, 2006 the DuPage County State's Attorney filed an information against her alleging that she committed the offense of "Attempt (State Benefits Fraud)" in that she took a substantial step toward the commission of State Benefits Fraud by attempting to obtain Public Aid benefits for Dancik by misrepresenting material facts upon which his eligibility would be based. Respondent pled guilty to that charge and was sentenced to twelve months conditional discharge. (Tr. 126, 129-30, 511-12, 518; Adm. Ex. 17).
Respondent acknowledged she was guilty of intentionally omitting information on a questionnaire for the purpose of defrauding the department of public aid. She claimed her purpose was to keep Dancik in his house, which she believed he would lose if he went on public aid. When asked what she has learned in the years this matter has been pending, Respondent stated she learned a big lesson with respect to public aid, and she learned that a lawyer has to be more careful than anyone else. She acknowledged that the criminal offense of which she was convicted has nothing to do with being a lawyer. (Tr. 130, 132, 513, 527, 545).
Bridgette McGee Fluker
Bridgette McGee Fluker ("McGee") testified she is currently employed in the financial services department at Elm Brook Healthcare and Rehabilitation Center. From 1995 to 2004 she was the bookkeeper at Elm Brook and in that capacity was responsible for completing public aid applications for residents. In filling out an application, she would first determine if the resident was capable of providing information and documentation. If the individual could not supply information, she contacted the person who signed the resident into the facility. (Tr. 134-36).
Regarding Charles Dancik, McGee testified she interviewed him in June 2001 prior to his discharge on June 14, and went through each of the questions on the public aid application. She also read to him the statements contained in the application regarding verification of the information by federal, state and local officials, and consequences for providing false information. McGee stated that when she interviewed Dancik, he knew who he was, understood her questions, and understood the warnings. (Tr. 142-47, 166-67; Adm. Ex. 12).
McGee determined that she had to contact another person to obtain information for Dancik. She telephoned Respondent several times and faxed to her a list of documents required for the public aid application. The document list included a "yes" or "no" response next to each item. McGee stated that when Respondent returned the list by fax on June 28, 2001, she had not circled any response regarding copies of "stocks, bonds or certificates of deposit," nor did she provide McGee with any documentation regarding stocks. Regarding another item on the list - the transfer of any assets within the prior thirty-six months - Respondent wrote "looking into" in the margin. McGee stated that Respondent never informed her that Dancik had transferred a house or sold stocks within the prior thirty-six months nor did she provide any documentation to that effect. Respondent also did not tell McGee that she was attempting to collect funds that were owed to Dancik. Respondent did transmit thirteen pages of information, including Dancik's bank statements, his power of attorney, and a couple of his medical bills. (Tr. 136-39, 153, 159; Adm. Ex. 10).
On June 29, 2001, after receiving the document list from Respondent, McGee faxed Respondent additional handwritten questions regarding Dancik's birthplace, education, military record, type of employment and value of his car. She stated that Respondent took too long to provide the information and on June 29, prior to receiving any response from Respondent,
McGee sent Dancik's public aid application to the department of public aid. McGee explained that she had a time limit for submitting the application, she had trouble getting in touch with Respondent, she was running out of time, and she submitted the application pursuant to the direction of her administrator. (Tr. 139, 151, 154-55, 164-65; Adm. Exs. 10, 12).
Regarding the completed application, McGee stated that Dancik supplied some of the information during their interview, and some was supplied by Respondent during a telephone conversation and in her fax of June 28, 2001. McGee copied the admitting diagnosis from Dancik's chart. In a 2004 deposition McGee responded "yes" when asked whether she recalled if the form was completed during her first visit with Dancik. (Tr. 140, 142, 148-49, 153, 166).
Regarding a question on the application regarding stocks and bonds owned by the applicant, McGee acknowledged that she checked "no" even though Respondent had indicated she was looking into that issue. After submitting the application, McGee received a fax from Respondent with the answers to McGee's handwritten questions. (Tr. 154-57, 164-65; Adm. Ex. 10).
McGee identified a July 6, 2001 notice from the Department of Human Services which informed her she would be interviewed by telephone on July 10, 2001 regarding Dancik's application for aid. The notice included a list of documents that were to be brought to the interview. McGee stated she did not contact Respondent regarding any of the listed items and, at that time, Dancik was no longer a resident of Elm Brook. (Tr. 147, 158-59; Resp. Ex. 1).
McGee testified she was not charged with any fraudulent conduct with respect to her completion of the public aid application. (Tr. 165).
Lynn Peary, Dancik's sister, testified that Dancik had no private health insurance, and his VA benefits would only provide coverage for a limited time period. Peary recalled being told by a social worker at one of the facilities that the next logical step would be for Dancik to apply for public aid, and in April 2001 she received a list of the information required for a public aid application. She stated she may have mentioned the social worker's advice to Respondent. In April 2001 she knew Respondent was attempting to obtain public aid for Dancik and she recalled Respondent saying he would not be eligible for aid because he owned stock worth $40,000. (Tr. 228-30, 243-45).
On June 4, 2001 Peary sent an e-mail to Respondent informing her that an attorney Peary had retained, Nancy Smith, would not be doing the public aid application, and suggesting that Respondent "cooperate and get this application done." Peary stated she never told Respondent to withhold information regarding Dancik's assets and had no involvement in the decision to transfer Dancik's assets to Respondent so he would be eligible for public aid. Peary may have spoken to Bridgette McGee about Dancik's public aid application but she did not provide any documentation or information to anyone at Elm Brook regarding Dancik's assets because she had no access to or knowledge of his assets other than the fact that he owned one-half of his house. (Tr. 228-30; Adm. Ex. 28; Resp. Ex. 8).
Additional Evidence offered in Mitigation
Darlene Campione, a real estate salesperson, testified she has known Respondent for nine years and recommends her exclusively to her real estate clients. Campione has heard only positive comments from other attorneys regarding Respondent's integrity and honesty. The
charges against Respondent and Respondent's guilty plea in the criminal case have not changed Campione's opinion as to Respondent's reputation. Campione stated that she and Respondent have not discussed Respondent's conviction in depth. (Tr. 327-330).
Marisela Brown, a realtor, testified she has known Respondent for six years. Respondent represents ninety-five percent of Brown's clients. Based on comments Brown has heard from attorneys who speak highly of Respondent, she believes Respondent has a great reputation for honesty and integrity. Brown is aware of the charges of the Complaint and Respondent's guilty plea in the criminal case but the charges do not alter her opinion of Respondent's reputation. (Tr. 332-36).
Phillip Cornacchia testified that he spent twenty-five years in mortgage banking and has had both social and professional contact with Respondent. He stated she has a very good reputation for honesty and integrity, and has heard nothing negative about her. He acknowledged he has not spoken to anyone specifically about Respondent's reputation for honesty. (Tr. 338-41, 345).
Cornacchia testified that the charges of the disciplinary complaint do not change his opinion of Respondent's reputation. He has recommended Respondent to clients in the past and would do so again. (Tr. 340, 345).
The Administrator reported that Respondent has not been disciplined by the Illinois Supreme Court or any Board of the Commission.
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 (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).
Count I alleged that Respondent engaged in misconduct by improperly transferring property owned by her step-father, Charles Dancik, to herself and using his funds for her own benefit. The evidence established that Dancik had been married to Respondent's mother, Anita, and that during their marriage they jointly owned and resided at property located in Woodridge, Illinois. The property was held in trust pursuant to a 1980 agreement which provided that, upon Anita's death, her fifty percent interest would pass to Respondent, subject to a life estate held by Dancik. On Dancik's death, his share would pass to Anita if she were still living but if she were not living, to Dancik's sister, Lynne Peary, and then to his brother.
When Anita died in 1995, her fifty percent interest in the property passed to Respondent, subject to the life estate held by Dancik. Dancik continued to live in the Woodridge home until he suffered a fall that resulted in his hospitalization in November 2000. Thereafter, he was transferred to a series of facilities for care and treatment of his various conditions, which included alcoholism and symptoms associated with alcoholism.
While Dancik was a patient or resident of care facilities, the following events took place:
- On December 5, 2000, while in Hines V.A. Hospital, he signed a modification to the 1980 trust agreement which modification provided that upon his death, his interest in the Woodridge property would pass to Respondent. The document was
prepared by attorney Susan Davidson, with whom Respondent had a friendship and a professional relationship, pursuant to Respondent's request and instruction.
- On January 11, 2001, while in Fairview Nursing Home, he signed a power of attorney, prepared by attorney Davidson, which appointed Respondent as his attorney-in-fact and gave her the power to handle, among other things, his real estate and financial transactions.
- On April 6, 2001, while in Hines V.A. Hospital, he executed a document entitled Assignment of the Beneficial Interest, which transferred his entire interest in the Woodridge property to Respondent. Respondent prepared the document and presented it to Dancik for his signature.
- On April 19, 2001, while in Elmbrook Rehab Center, he signed a letter, prepared by Respondent, notifying LaSalle Bank that he wished to relinquish his interest in any life estate he held in the Woodridge property.
As a consequence of the foregoing, by April 6, 2001 Dancik had transferred all of his ownership interest in the Woodridge property to Respondent, and on April 19, 2001 he gave up his right to live there during his lifetime. Despite Dancik's lack of ownership interest and the fact that he was not living in the Woodridge house, Respondent used her power of attorney on April 13, 2001, May 2, 2001 and May 21, 2001 to access his funds to pay the mortgage on the property. She also used Dancik's funds to pay for repairs made to the property. The only person to benefit from these transactions was Respondent, who now owned the premises.
In June 2001 Respondent and Dancik agreed that Respondent would represent him in the collection of funds owed to Dancik by his first wife. After writing four letters in pursuit of the funds and receiving a check in the amount of $19,244.11, Respondent used her power of attorney to negotiate the check and then used the proceeds to pay off the mortgage on the Woodridge property, which was a property she now owned.
We also received considerable evidence, in the form of testimony and medical records, regarding Dancik's cognitive abilities prior to and on the various dates he signed the documents in evidence. However, the evidence was inconclusive regarding his mental state at the exact
time the documents were executed. Since the exact time of day the various documents were signed was not established, it is difficult to contrast the testimony with the medical records. The Administrator emphasized entries in the medical records which indicated in November of 2000, Mr. Dancik was diagnosed with Wernicke-Korsakoff syndrome, symptoms of which include retrograd amnesia, impaired memory and confabulation, and these symptoms are noted at various times throughout the records of his multiple hospitalizations. Further, on December 5, 2000 and April 6, 2001, dates on which he signed two documents, the records reflect Dancik was at times confused, confabulating, and uncooperative, had difficulty with short term memory and was restrained for a portion of those days. Conversely, Respondent's counsel pointed to entries in the medical records that indicated on other dates documents were signed by Dancik, he was alert, orientated and not in restraints. Respondent also pointed out medical records which reflect Mr. Dancik signed consent forms for treatments and medications, inferring he was lucid when those consents were executed. Further, Respondent presented witnesses, Susan Davidson and Bonnie Valiant, who observed Dancik sign documents. Both testified Dancik was lucid, conversant and appeared to understand what he was doing while in their presence.
After reviewing the testimony and medical entries for the relevant dates and time periods, we conclude that evidence of Dancik's medical condition and mental competency vacillated day to day and even hour to hour between normal and impaired. Given this divergent evidence concerning his mental status, we conclude the evidence does not establish that he was suffering from a mental infirmity at the time he signed the documents in question. We do believe, however, that because of his confinement in various facilities and forced reliance upon other individuals to oversee his affairs, he was in an extremely vulnerable and dependent position. We
find Respondent should have recognized that fact and taken adequate precautions to protect his interests irrespective of Dancik's medical condition at the exact time he executed the documents.
Turning now to the specific allegations of misconduct, we begin our analysis by addressing the charges that Respondent breached her fiduciary duty to Dancik, engaged in overreaching, and violated Rule 1.7(b) by representing Dancik when that representation was materially limited by her own interests. We discuss those charges together as there is overlap between the elements of those offenses. We find that each charge was proved by clear and convincing evidence.
Respondent acknowledged that by virtue of the power of attorney signed in January 2001, she owed a fiduciary duty to Dancik. See Zachary v. Mills, 277 Ill.App.3d 601, 660 N.E.2d 1301 (4th Dist. 1996) (a power of attorney creates a fiduciary relationship as a matter of law). Fiduciary obligations also attached when Respondent and Dancik later entered into an attorney/client relationship with respect to Respondent's collection of funds from Dancik's ex-wife. As a fiduciary, Respondent owed Dancik the duties of honesty, loyalty, good faith, diligence, and a duty to avoid self-dealing. See In re Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961 (2006); In re Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990); In re Wyer, 00 CH 10, M.R. 18227 (Nov. 26, 2002). We find that Respondent breached the fiduciary duties she owed to Dancik by virtue of her power of attorney when she drew checks on his account to make mortgage payments and pay for repairs to property in which he no longer had any ownership interest. Rather than taking steps to ensure that Dancik's interests were protected by arms length transactions, she attempted to deplete his assets to her own benefit.
Respondent also breached her fiduciary duties with respect to her attorney/client relationship with Dancik, and engaged in a conflict of interest in violation of Rule 1.7(b). The
latter rule provides that a lawyer shall not represent a client if the representation may be materially limited by the lawyer's own interests unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after disclosure. This is a "rigid rule," and does not require proof that the attorney's "professional judgment was actually compromised." In re LaPinska, 72 Ill. 2d 461, 469, 381 N.E.2d 700, 703 (1978). The evidence showed that Respondent's independent judgment regarding the collection of funds from Dancik's ex-wife, which funds belonged solely to Dancik, was materially limited by her own interests in that, rather than turning over the proceeds to Dancik or depositing the check on his behalf, she used her power of attorney to negotiate the check and pay off the mortgage on property that she owned.
For the same reasons we found that Respondent breached her fiduciary duties, we find that she overreached the relationship she held as both power of attorney and attorney for Dancik. An attorney commits overreaching when he or she takes advantage of a position of influence. In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1996); In re Stillo, 68 Ill. 2d 49, 368 N.E.2d 897 (1977). See also Pottinger v. Pottinger, 238 Ill.App.3d 908, 605 N.E.2d 1130 (2nd Dist. 1992). We believe Respondent held a position of influence over Dancik during the time he was hospitalized and in treatment for various conditions. He depended on her as his only family in the area, and as the person entrusted to make decisions concerning his finances and to assist him with his house and his payment of bills. Indeed, Respondent herself introduced evidence that Dancik considered her one of the most important thing in his life. Instead of protecting Dancik's assets, Respondent orchestrated events which resulted in him giving up his ownership interest in the only real property he owned, without receiving any form of compensation. Respondent admitted that, with respect to the April 6 and April 19 documents, which she prepared for
Dancik's signature, the better practice would have been to have another attorney prepare the documents and counsel Dancik with respect to them. Respondent continued overreaching her relationship with Dancik when she used his assets to her benefit.
Respondent was also charged with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4). To determine whether there has been a violation of that rule, we have to examine Respondent's motives. We are aware that motive and intent are rarely proved by direct evidence and must be inferred from conduct and circumstances. See In re Stern, 124 Ill. 2d 310, 529 N.E.2d 562 (1988).
Respondent testified that her purpose in taking ownership of Dancik's half of the Woodridge property and using his assets in connection with the property was to benefit Dancik in his application for public aid, and not to feather her own nest. She explained that Dancik had no health insurance and therefore he needed to seek public aid to cover his medical costs. In order to ensure his eligibility, Respondent spent down his assets and transferred ownership of the Woodridge property to herself. She believed that depriving Dancik of ownership of his property would be, in the end, the best way to keep him in the house.
The Administrator, on the other hand, attached the most sinister of motives to Respondent's actions, arguing that Respondent's long history of frustrations with Dancik's drinking and her resentment of the manner in which he treated her mother led to hatred, revenge and a plot to systematically strip Dancik of all of his financial assets so she could recoup what she believed was rightfully hers. The Administrator theorized that Respondent's goal was to take ownership of Dancik's property and then have him confined to a long-term care facility at the expense of taxpayers. We reject this motive.
Having reviewed the evidence with respect to Respondent's and Dancik's relationship, we do not believe the Administrator proved that Respondent's actions stemmed from any deep-seated vengeance. Respondent testified that after her mother's death she and Dancik visited often, spent holidays together, and she and her husband helped Dancik maintain his household. Although Dancik's memory was poor on many events, he did acknowledge that he probably spent holidays with Respondent and that she visited him at his house
However, although we were not convinced that Respondent was acting out of bitterness or malice toward Dancik, neither do we believe that she was acting purely for Dancik's benefit. If Respondent were merely attempting to ensure Dancik's eligibility for public aid, as she claimed, his interest in the Woodridge property could have been transferred to anyone, with the most likely candidates being his own blood relatives. Instead, Respondent was the beneficiary of all of the transactions and ultimately managed to become the owner of a piece of property unencumbered by any mortgage. Further, Respondent's claim that she was trying to find a way to keep Dancik in the house was contradicted by Peary's testimony that Respondent told her in the summer of 2001 that she could dislodge Dancik from the Woodridge property at any time. Further, Respondent sought no guidance from any other attorney or family member in avoiding situations where her interests clearly conflicted with Mr. Dancik's.
The impropriety of taking someone's property without compensation, and then using that person's funds to maintain the property and pay off the mortgage, should have been obvious to Respondent. In short, she took ownership of the Woodridge property while Dancik was hospitalized, and thereafter acted under the guise of trying to assist him.
Although Respondent maintained that Dancik fully consented to the transfer of property and to the use of his funds to support the property, the evidence was conflicting on that issue.
Dancik's sister, Lynn Peary, did not believe he would sign away his right to live in his home. According to Peary, Dancik believed Respondent was trying to sell the house out from under him, and he denied that he transferred his interest in the property. As for Dancik, he denied having any intention to give Respondent his house while he was still alive, or to give her his interest in the house and then have her pay off the mortgage with his funds.
We conclude that Respondent's actions with respect to Dancik were dishonest and entered into for her own self-benefit. We further note that, even if we accepted Respondent's claim that her sole intent was to assist Dancik in qualifying for financial aid, that strategy in itself was dishonest, as she readily admitted. We therefore find that Respondent engaged in dishonest conduct in violation of Rule 8.4(a)(4).
For the foregoing reasons, we find that Respondent breached her fiduciary duties to Dancik, overreached her relationship with him, represented him when the representation was materially limited by her own interests, and engaged in dishonest conduct. We also find that she engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) in that her actions deprived Dancik of his property and ultimately resulted in his initiation of a civil action and a settlement whereby his property was restored to him. Finally, we find that Respondent engaged in conduct which tends to defeat the administration of justice and which bring the legal profession into disrepute in violation of Illinois Supreme Court Rule 770. The public must have confidence that attorneys will place their professional obligations above their own self interests and that they will serve their clients, or other persons to whom they owe fiduciary duties, with undivided loyalties. Respondent's failure to do so is a negative reflection on the profession.
Count II alleged that Respondent engaged in misconduct by providing false and misleading information to a public aid coordinator who was completing an application for public aid on behalf of Dancik.
The evidence showed that in June 2001 Respondent received a request for information and documentation regarding Dancik's financial situation from Bridget McGee, the public aid coordinator at Elm Brook Healthcare and Rehabilitation Center. Pursuant to the power of attorney signed by Dancik in January 2000, Respondent had the authority to act on behalf of Dancik with respect to government benefits.
The list of documents provided to Respondent requested that she circle "yes" or "no" next to each item on the list. When she returned the form to McGee, however, she had not provided a response for all of the items. Specifically, she did not circle a response to item number ten which asked for "copies of stocks, bonds or certificates of deposit," nor did she circle a response to item number fifteen which asked if Dancik had "sold, given away or transferred any assets such as savings accounts, cash, house, land, insurance, stocks, C.D's, etc within the last 36 months." With respect to the latter item, Respondent wrote "looking into" in the margin.
Respondent admitted that, at the time she returned the form to McGee, she knew Dancik had a stock account with stocks valued at more than $25,000 and, in fact, she had a power of attorney with respect to that account, had drawn checks on the account, and received monthly statements regarding the account. She also knew, with respect to the transfer of any assets, that Dancik had transferred his interest in the Woodridge property two months earlier. In fact, she prepared the document transferring the property and was the recipient of Dancik's interest in the
property. Respondent admitted that she purposely withheld the information and that she acted dishonestly.
On September 19, 2006 Respondent pled guilty to the charge of "Attempt State Benefits Fraud" in that she took a substantial step toward the commission of state benefits fraud by attempting to obtain public aid benefits for Dancik by misrepresenting material facts upon which his eligibility would be based. She acknowledged at hearing that she was guilty of intentionally omitting information on a questionnaire for the purpose of defrauding the department of public aid.
Based on the foregoing facts and Respondent's own admissions, we find that she engaged in the following misconduct: commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in violation of Rule 8.4(a)(3) by committing attempt state benefits fraud in violation of 720 ILCS 5/8-4(a); conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4); conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5); and 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.
We also find that, as a fiduciary to Dancik, Respondent had a duty to act honestly on his behalf. By providing false information to McGee, Respondent breached that fiduciary duty owed to him.
Finally, at the time Respondent communicated with McGee, she was representing Dancik in the collection of funds from his ex-wife. At no time did she inform McGee that she was pursuing those funds on his behalf, nor did she tell McGee in August 2001 that Dancik received a check for more than $19,000, or that she used the funds to pay off the mortgage on property
which she owned. That new information would have been relevant in determining the amount of benefits available to Dancik. We do not accept Respondent's claim that she did not know she had a duty to update information, and believe an independent attorney would have made the proper disclosures to the department of public aid. We conclude that Respondent withheld information regarding the collection of funds to protect her own financial interests, and therefore find that she represented Dancik while that representation was materially limited by her own interests in violation of Rule 1.7(b).
Having found that Respondent engaged in misconduct, we must determine the appropriate discipline warranted by that misconduct. In determining the proper sanction, we 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 (1994).
In making our recommendation for discipline, 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 (1991). In mitigation, Respondent cooperated in these proceedings, has not been previously disciplined, presented several witnesses who testified to her reputation for truth and veracity, and acknowledged some of her misconduct. See In re Chandler, 161 Ill. 2d 459, 641 N.E.2d 473 (1994).
In aggravation, we consider the harm or risk of harm caused by Respondent's misconduct. See In re Saladino, 71 Ill. 2d 263, 375 N.E.2d 102 (1978) (discipline should be "closely linked to the harm caused or the unreasonable risk created by the [attorney's] lack of care). In this case Respondent's dishonest conduct had a clear financial impact on Dancik in that he gave up, without compensation, his half-share interest in the Woodridge property, his legal right to remain on the property, and a significant amount of funds from his bank account and investment account. Although Respondent testified that Dancik would always be allowed to live in the Woodridge home, after April 19, 2001 he had no legally protected right to stay there and was at the mercy of Respondent's good graces. Adding to the harm, Dancik had to retain an attorney to file a civil action against Respondent in order to regain his property. See In re Demuth, 126 Ill. 2d 1, 533 N.E.2d 867 (1988) (client is harmed when he has to go to the "expense and inconvenience" of hiring another attorney.) Respondent's conduct also posed a risk of harm to the taxpayers of Illinois, who would have borne the financial responsibility for the fraudulently obtained public aid payments.
Turning now to the appropriate discipline, the Administrator argued that Respondent's misconduct warrants a suspension of eighteen months. Respondent acknowledged that her commission of a crime is deserving of a sanction, but argued that the discipline should be lenient.
Both parties drew our attention to cases involving overreaching, breach of fiduciary duties and/or engaging in conflicts of interest. While none of the cases approximate the specific facts of the present case, the following cases offer the best guidance for our decision.
In In re Marquis, 99 CH 83, M.R. 17432 (May 25, 2001) the attorney arranged for his adult daughter to borrow money from an elderly client for the purpose of purchasing property, used his power of attorney to withdraw the money from the client's trust, and represented the
elderly client and his daughter at the closing on the property. The attorney was suspended for nine months, on consent, for breaching his fiduciary duties to the client and representing conflicting interests. In re Biagnini, 07 SH 13, M.R. 23136 (Sept. 22, 2009) the attorney prepared a contract and agreement for deed between his client and his business partner without disclosing to the client his relationship with his partner. The attorney was suspended for ninety days for overreaching, breach of fiduciary duty and engaging in a conflict of interest. An additional charge of dishonesty was not proved. In Saladino, 71 Ill. 2d at 263, the attorney abused his fiduciary duty when he represented a client in the purchase of real estate and then placed title to his client's property in his own name. He also named himself as a legatee in a client's will without advising the client to get independent legal advice. With respect to his taking title to his client's property, the attorney testified he was concerned that acquisition of the asset might jeopardize his client's eligibility for governmental assistance. When the client discovered the attorney's act and demanded her return of property, he gave her the deed. In imposing a three month suspension, the Court found no intentional fraud and noted that the attorney's client did not suffer any actual harm.
In the foregoing cases, which resulted in suspensions of three to nine months, the attorneys breached significant fiduciary duties owed to clients, but did not engage in the type of dishonest conduct we have found Respondent engaged in. Thus, in deciding on the appropriate sanction in the present case, we have to consider the additional factors of Respondent's dishonesty involving Dancik as well as her conviction for attempting to defraud the department of public aid by submitting false information regarding Dancik's assets. These additional factors support a sanction of greater length than imposed in the above cases.
We reviewed a number of cases in which attorneys submitted false information, or assisted others in submitting false information, to procure funding. In re Gabriele and Villadonga, 89 CH 469, M.R. 8236 (Mar. 23, 1992) two attorneys were suspended from the practice of law for five months for assisting condominium purchasers in making false representations in mortgage loan applications. They had been convicted of criminal charges for their roles in securing the false loan applications, and received suspended sentences coupled with three years of probation. In In re Gausselin, III, 04 CH 123, M.R. 20064 (May 19, 2005) an attorney was convicted of one count of mail fraud and placed on probation for three years for making false statements in mortgage loan applications. He was subsequently suspended from the practice of law for ninety days. See also In re Lapins, 00 CH 86, M.R. 17655 (Nov. 28, 2001) (attorney suspended for five months for receiving loan by providing false information regarding his company's revenues and profits); In re Harasymiw, 93 CH 401, M.R. 9397 (Dec. 9, 1993) (attorney suspended for sixty days for failing to disclose material financial information on loan application).
Similarly, suspensions have been imposed in cases involving other types of criminal behavior and dishonesty. See In re Garman, 98 CH 68, M.R. 15799 (May 25, 1999) (attorney suspended three months after being convicted of attempt official misconduct and sentenced to one year supervision for acquiring a used police cruiser from village where he was a trustee); In re Royce, 90 CH 206, M.R. 6636 (May 30, 1990) (attorney suspended three and one-half months after being convicted and sentenced to four months incarceration and probation for failing to report income on two tax returns and failing to file one return when it was due). In addition to considering the foregoing cases, we must take into account the purpose of the disciplinary
process which is to safeguard the public, maintain the integrity of the profession and protect the administration of justice from reproach.
In mitigation, while the misconduct engaged in by Respondent is clearly cause for concern, both from a public standpoint and for the reputation of the profession, we note that her actions occurred almost a decade ago and shortly after she was admitted to the practice law. In the time that has elapsed since then, she has built a reputable practice. In fact, several members of the public who have worked closely with Respondent attested to her reputation for honesty and integrity. For those reasons, and because we believe Respondent now appreciates the nature of her wrongdoing, we do not believe she poses any future threat to the public. In weighing all of the above factors, we believe the administration of justice and the integrity of the profession will be adequately served by a moderate suspension. Thus, after considering the nature of the Respondent's misconduct, the aggravating and mitigating factors, the cases discussed above, and the purpose of these disciplinary proceedings, we conclude that a suspension of one year is appropriate. Therefore, we recommend that the Respondent Andrea Leigh Worrell be suspended from the practice of law for a period of one year.
Date Entered: December 8, 2010
|John M. Steed, III, Chair, Juliette N. Lilie and K. F. Kitchen, II, Hearing Panel Members.|