Filed January 19, 2012
In re Oscar Gallo, Jr.
Commission No. 07 CH 110
Synopsis of Review Board Report and Recommendation
Respondent-Appellee Oscar Gallo, Jr. was charged with misconduct related to his representation of both parties to a real estate closing. Specifically, the one-count complaint charged him with breaching his fiduciary duty to his client; failing to consult with his client regarding the objectives of his representation and as to the means by which they were to be pursued, in violation of Rule 1.2(a) of the Illinois Rules of Professional Conduct; failing to keep his client reasonably informed as to the status of a matter, in violation of Rule 1.4(a); failing to explain a matter to the extent reasonably necessary to permit his client to make informed decisions about the representation, in violation of Rule 1.4(b); representing a client when the interests of that client were directly adverse to the interests of another client, in violation of Rule 1.7(a); representing a client when his representation might be materially limited by his responsibility to another client or third person, or by his own interests, in violation of Rule 1.7(b); representing multiple clients in a single matter without explaining the implications of the common representation and the advantages and risks involved, in violation of Rule 1.7(c); and engaging in conduct tending to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.
Respondent admitted some of the factual allegations of the complaint and denied some of them. He denied all of the allegations of misconduct.
The Hearing Board found that the Administrator proved all of the allegations of the complaint by clear and convincing evidence, except that there was not sufficient proof that Respondent failed to keep his client reasonably informed as to the status of a matter, in violation of Rule 1.4(a). The Hearing Board recommended that Respondent be suspended from the practice of law for three months.
The case was before the Review Board on the exceptions of the Administrator, who argued that the Hearing Board's finding that there was not sufficient proof of a violation of Rule 1.4(a) was against the manifest weight of the evidence and objected to its recommended sanction. The Administrator argued that Respondent should be suspended for no less than one year. Respondent urged the Review Board to uphold the Hearing Board's findings and its recommended sanction.
The Review Board concluded that the Hearing Board's finding that the violation of Rule 1.4(a) was not sufficiently proved was not against the manifest weight of the evidence. It recommended that Respondent be suspended for three months.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
OSCAR GALLO, JR.,
Commission No. 07 CH 110
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Hearing Board found that Respondent engaged in a conflict of interest, breached his fiduciary duty to his clients and committed other misconduct by representing both the buyer and the sellers in a real estate transaction that appeared to involve a fraudulent scheme. Respondent was not a participant in the scheme with disastrous consequences for the buyer of the property, but they were not caused by Respondent.
The Hearing Board found only a few factors in mitigation or in aggravation. Noting that Respondent did not act fraudulently or in furtherance of his own financial gain, it recommended that Respondent be suspended for three months.
The Administrator argues upon review that the Hearing Board's finding that there was not clear and convincing evidence that Respondent failed to keep his client reasonably informed about a matter was against the manifest weight of the evidence and that when all of the findings in aggravation are considered, a suspension of at least one year is appropriate. After reviewing the findings of the Hearing Board and making some findings of our own, we conclude
that the finding as to this charge was not against the manifest weight of the evidence. We recommend that Respondent be suspended for three months.
FINDINGS OF THE HEARING BOARD
The Hearing Board found that the Administrator provided sufficient proof that Respondent breached his fiduciary duty to his client; failed to consult with his client regarding the objectives of his representation and as to the means by which they were to be pursued, in violation of Rule 1.2(a) of the Illinois Rules of Professional Conduct; failed to explain a matter to the extent reasonably necessary to permit him to make informed decisions about the representation, in violation of Rule 1.4(b); represented a client when the interests of that client were directly adverse to the interests of another client, in violation of Rule 1.7(a); represented a client when his representation might have been materially limited by his responsibility to another client or third person, or by his own interests, in violation of Rule 1.7(b); represented multiple clients in a single matter without explaining the implications of the common representation and the advantages and risks involved, in violation of Rule 1.7(c); and engaged in conduct tending to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. The Hearing Board found that there was not clear and convincing evidence that Respondent failed to keep his client reasonably informed as to the status of a matter, in violation of Rule 1.4(a). It is only this last finding along with the sanction which is challenged by the Administrator
EVIDENCE - CONFLICT OF INTEREST
In July 2006, Manisha Patel and Mohammed Moshin owned property located at 5542 S. Nottingham Avenue in Chicago. On July 25, 2006, Patel entered into a contract to sell
the property to William Willis for $470,000. According to the contract, she was represented by attorney Laurence M. Cohen. Although his name was on the contract, Cohen never met Patel.
Closing on the sale "dragged on and on" as there were financing issues. Willis was technically in default by the time that Cohen obtained the payoff letters and told Patel that the closing was set for August 31, 2006. Cohen was informed that the property was being sold to another individual.
Patel and Moshin had been trying to sell the property for some time. A friend of a friend referred them to Ryhs Pareja1, who offered to help them. They would pay him nothing beforehand, but if the property sold, he would ask for a finder's fee. Pareja found Omar Lopez, a possible buyer.
Lopez was employed by Advanced Auto Parts in Batavia, Illinois. He met Respondent in the summer of 2006, when he helped solve a problem Respondent was having with his car. Respondent told Lopez to give him a call if he ever needed an attorney. Lopez told Respondent that what he needed was to refinance his house. Respondent then gave him Pareja's telephone number, knowing that Pareja was a mortgage broker.
Lopez never refinanced his home, but after meeting Pareja five to seven times, he agreed to participate in Pareja's "investment program" by purchasing the Nottingham property. Lopez did not have any money to invest, but Pareja explained that he could buy the property for much less than the house was worth and it would not cost him anything. In fact, he would receive $12,000 at the closing if he agreed to close quickly. Pareja would find him a third tenant and with that rent, plus the rent of the two existing tenants, Lopez would have enough income to pay the mortgage. Pareja would manage the property for Lopez in exchange for an unspecified share of the rent. According to Lopez, Pareja promised that there would be more investment
opportunities in the future. Once the Nottingham property was paid off, he could use the rent money to invest in other property.
Pareja prepared a one-page contract, which was signed by Moshin and Lopez and dated August 17, 2006. Moshin also signed Patel's name. The contract stated that Respondent was the buyer's attorney, but Lopez did not know who put that information there. He did not consult with Respondent before signing it, did not negotiate any of the terms Pareja listed and did not even see the property before agreeing to purchase it.
Respondent had been advised by Pareja that Lopez would need an attorney for the closing. In or about the last week of August, 2006, Respondent began to accumulate, draft and process documents for Lopez's purchase of the property. He obtained a copy of the contract from Pareja and a copy of the title commitment, and verified the mortgage commitment.
Closing on the sale of the property was originally set for August 30th. When Respondent arrived, he learned that the mortgage lender had continued the closing until the following day as there were problems with the documents. On August 31st, Respondent and Lopez waited an hour before being informed that it was continued again.
The closing finally took place on September 1, 2006. It started at approximately 12:30 p.m. and lasted about five hours. One hundred percent of the purchase price was financed by two separate loans, so that two different mortgage packages were involved. There were multiple misprints and errors in the lenders' documents, which had to be redone several times.
While all of the paperwork between Lopez and the lenders had been completed without Respondent's participation, the loan application was presented to Lopez at the closing. Respondent reviewed it and the other documents with him. Respondent testified that while he did not go through them line by line, he asked Lopez to review the personal information and
make sure it was correct. The loan application contained several misstatements, which Lopez did not correct. It indicated that the property would be Lopez's primary residence, which was never his intent. His monthly income was inflated. The application listed $23,000 in a bank account that Lopez did not have.
An additional reason for the length of the closing was that Respondent was the only lawyer present. While Respondent testified that he represented only Lopez, Lopez, Moshin and Patel believed that Respondent represented all of them. The Hearing Board found that this was a reasonable belief. According to Lopez, Respondent stated that since Moshin and Patel did not have an attorney, to save time, he would represent them as well. According to Patel, Pareja had introduced Respondent as her lawyer. She testified that Respondent explained the documents to all three participants, which included a warranty deed, affidavit of title and bill of sale that Respondent had prepared, although this is usually the seller's responsibility. They signed the documents wherever they were told to sign. At the end of the closing, she and her husband paid Respondent.
Respondent's fees were paid by the buyer because Laurence Cohen had been asked to provide certain documents necessary for the closing that he had obtained in anticipation of the Willis closing. He agreed to do so, as long as he was compensated for their costs and for his time spent on the Patel-Willis closing. The closing statement listed him as the seller's attorney, receiving fees of $500. It also showed fees of $495 due to the law firm of Zamparo and Labow.2 Respondent did not know why these attorneys were listed on the closing documents.
At some point that afternoon, Respondent was shown a version of the settlement statement that he believed was accurate. The parties signed it and it was faxed to the mortgage company, which rejected it. Respondent explained that including all of the attorney's fees "made
the ratios too high for the loan." Respondent solved this problem by having his fees paid outside of the closing, from the proceeds the sellers received.
Pareja was also present at the closing. According to Moshin, he wanted his finder's fee. Upon completion of the closing, Pareja asked the closing officer if he could divide the $78,545.20 that the sellers were to receive into more than one check. The closing officer agreed to do so, as long as the checks were all made payable to the sellers.
To do so required a letter of direction from the sellers. As Respondent was the only attorney present, the title officer asked him to draft it. The letter directed him to prepare three checks in the amounts of $41,545.20, $37,000 and $1,500.
The sellers received the first check, Pareja, the second as a finder's fee and Respondent the third as his legal fees.
Except for a couple of conversations right after the closing, Lopez apparently never heard from Pareja again. As Pareja never found him a downstairs tenant, Lopez used the $12,000 he received from the closing to pay the difference between his rental income and his mortgage payments. By April 2007, the money was gone and the Nottingham property was in foreclosure. Lopez also lost his own home to foreclosure. Eventually, he had no choice but to file for bankruptcy.
ANALYSIS - RULE 1.4(A)
At the time of the misconduct charged in the complaint, Rule 1.4(a) provided that "a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." The Hearing Board interpreted this charge to have resulted from Respondent's failure "to consult with and keep his clients informed about the transaction because he had a duty to recognize that the transaction appeared fraudulent and warn
his clients of this." In re Gallo, 07 CH 110 (Hearing Bd., Apr. 14, 2011) at 23. The Hearing Board found that there was not sufficient proof that Rule 1.4(a) had been violated.
According to the Administrator, the Hearing Board misinterpreted the basis for the charge. The violation of Rule 1.4(a) was based on the allegations of paragraph 21 of the complaint, which stated the following:
For the next three weeks [after the closing], Lopez attempted to contact Pareja and Respondent to arrange a meeting with Pareja, Moshin and Patel to obtain keys and execute a lease agreement for the rental of the Nottingham property, discuss the rental of the basement unit, and retrieve funds from Pareja for payment of the outstanding real estate taxes. Neither Respondent nor Pareja responded to Lopez's calls.
The Administrator argues that there was clear and convincing evidence of those allegations and therefore, the Hearing Board's finding was against the manifest weight of the evidence.
We review the Hearing Board's findings of fact deferentially and will reverse only if those findings are against the manifest weight of the evidence, In re Winthrop, 219 Ill. 2d 526, 542-43, 848 N.E.2d 961, 302 Ill. Dec. 397 (2006). A finding is against the manifest weight of the evidence when the opposite conclusion is clearly evident or the finding appears unreasonable, arbitrary, or not based on the evidence. Leonardi v. Loyola University, 168 Ill. 2d 83, 106, 658 N.E.2d 450, 212 Ill. Dec. 968 (1995). Supreme Court Rule 753(d)(3) also provides in part that the Review Board "may make such additional findings as are established by clear and convincing evidence."
Here, the evidence before the Hearing Board established that Respondent's representation of Lopez concerned his purchase of the Nottingham property. Although it took three attempts and a five hour closing to do so, Respondent was successful in this endeavor. In the absence of special circumstances or arrangements showing a continuation of the relationship, "an attorney's relation to a client ceases on rendition and satisfaction of the matter which the
attorney was employed to conduct." In re Imming, 131 Ill.2d 239, 252, 545 N.E.2d 715, 137 Ill. Dec. 62 (1989). There was no evidence that the parties intended their attorney-client relationship to continue after the closing.
According to the evidence adduced at the hearing, Lopez called Respondent "a couple of weeks after" the closing. His calls did not concern matters related to the closing, such as obtaining the keys or payment of the real estate taxes. Respondent did not know that Pareja had promised to manage the Nottingham property for Lopez and to find an additional tenant for the lower level. However, without the rent paid by the additional tenant, Lopez would not have enough money to pay the mortgage. Lopez could not reach Pareja, so he called Respondent to ask him to talk to Pareja and "try to find out what's going on with the whole thing."
The evidence further shows that Respondent did respond to Lopez's attempts to contact him. Lopez testified that they spoke briefly, and Respondent promised to speak with Pareja. According to Respondent, he spoke with Lopez both by telephone and in the auto parts store, when Lopez informed him that he had hired Pareja as his property manager. Respondent testified that he reached Pareja a day or two later and advised him that Lopez was trying to reach him and that Pareja should meet with him as soon as possible.
The Administrator cites In re Smith, 168 Ill.2d 269, 282, 659 N.E.2d 896, 213 Ill. Dec. 550 (1995), which holds that Rule 1.4(a) imposes a two-part duty upon an attorney to communicate with his clients. He must keep his clients informed about their cases so that the clients can make intelligent choices as to the direction of the litigation. He must promptly respond to clients' questions and demands for information. Even if the parties' relationship had continued, neither Lopez's testimony nor Respondent's suggests that Respondent failed to comply with those requirements.
In summary, the evidence shows that the professional relationship between Lopez and Respondent had concluded by the time that Lopez attempted to contact Respondent; that his calls did not concern the legal matter Respondent was employed to conduct; and that Respondent did respond to Lopez's attempt to contact him. While our reasoning differs from the Hearing Board's, on the basis of our additional findings, we conclude that the Hearing Board's determination that there was not sufficient evidence that Respondent failed to keep Lopez informed about the status of a matter, or to comply with reasonable requests for information was not against the manifest weight of the evidence.
Next, we turn to the appropriate sanction. Rejecting the Administrator's suggestion that it should recommend a suspension of no less than one year, the Hearing Board recommended that Respondent be suspended for three months. The Administrator argues that this is not commensurate with the seriousness of Respondent's misconduct, due to the Hearing Board's failure to consider certain aggravating factors, and suggests again that a suspension of no less than one year is required. Respondent contends that he deserves a suspension of no more than three months.
The Hearing Board's recommendation is advisory only. In re Hopper, 85 Ill.2d 318, 325, 423 N.E.2d 900, 53 Ill. Dec. 231 (1981). In making its own recommendation, the Review Board must consider the case based on its own particular facts and circumstances, yet keep in mind that the purpose of discipline is not to punish the individual respondent, but to protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55
(1993). Mitigating and aggravating factors are also relevant. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991).
Respondent presented no character evidence or evidence of any pro bono or charitable activities. The Hearing Board found only two mitigating factors. Admitted to practice in 1996, Respondent had no previous discipline. He received no benefit from the sale of the Nottingham property except for his legal fee, and there was no evidence that his fee was excessive or unreasonable.
While it made no specific findings in aggravation, the Hearing Board found that Respondent's testimony was not credible in some instances. He also tried to avoid answering some questions and held back information. The Administrator argues that there are three additional aggravating factors that should be weighed in determining our recommendation.
The complaint in this case did not charge Respondent with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. However, the Administrator relies on In re Costigan, 63 Ill.2d 230, 347 N.E.2d 129 (1976) and In re Rosin, 118 Ill.2d 365, 515 N.E.2d 85, 113 Ill. Dec. 276 (1987) in arguing that the Hearing Board should have considered "the uncharged conduct that Respondent participated in a mortgage fraud transaction" because that uncharged conduct is interwoven with the charged conduct.
We note first of all that Costigan does not involve uncharged misconduct as an aggravating factor. The court chided the respondent for his failure to disclose that he had fraudulently obtained funds in excess of the amount that the Administrator had charged him with, which it found "understandable, [but] it certainly is not commendable where the uncharged conduct is as interwoven with the charged conduct as is true here." Id., 63 Ill.2d at 237, 347
N.E.2d 129. An amended complaint was filed once the additional misconduct was discovered, and Costigan admitted that misconduct as well.
While Rosin states that the Administrator suggested "uncharged conduct of the respondent which came to light in the course of the investigation," as an aggravating factor, it is not clear that the court actually considered it in aggravation. If so, it was conduct that was a clearer violation of the disciplinary rules, namely that he loaned money to a company controlled by a sitting judge whom he frequently practiced in front of, and that he paid referral fees to another attorney. Id., 118 Ill.2d at 388, 515 N.E.2d 85, 113 Ill. Dec. 276.
We conclude that to consider Respondent's participation in the Nottingham closing as an aggravating factor would require us to overturn the Hearing Board's factual determination regarding the matter:
We do not find in aggravation that Respondent's actions caused harm to Mr. Lopez, because Mr. Lopez's failed dealings with Mr. Pareja and the subsequent foreclosures of his properties and his bankruptcy proceedings cannot be attributed to Respondent's actions. Additionally, although the sale of the Nottingham property appeared to involve a fraudulent scheme, Respondent is not charged with participating in that scheme and we do not find in aggravation that Respondent engaged in any dishonest or fraudulent conduct.
In re Gallo, supra, 07 CH 110 (Hearing Bd., Apr. 14, 2011) at 24.
We decline to reverse the Hearing Board on this point.
Next, the Administrator argues that the Hearing Board failed to consider Respondent's failure to express any recognition of his ethical obligations as an aggravating factor. However, the Hearing Board specifically commented that "Respondent does not appear to fully appreciate his ethical obligations and therefore we conclude some period of suspension is appropriate in this case." Id. at 26. As such, we have no reason to conclude that this factor was not adequately considered.
Finally, the Administrator argues that the Hearing Board's determination that the Respondent failed to testify in either a credible or complete manner was not given the proper weight in reaching the recommended sanction. The Hearing Board expressly found that the Respondent's testimony lacked both credibility and candor:
Respondent denied that he was introduced to Mr. Moshin and Ms. Patel as their attorney or that he explained the closing documents to Mr. Moshin and Ms. Patel and told them where to sign the documents. However, we find Mr. Lopez, Mr. Moshin and Ms. Patel, and not Respondent, credible….The witnesses had no reason to lie and nothing to gain by testifying untruthfully. Some of Respondent's testimony concerning his relationship with Mr. Pareja was successfully impeached and his credibility was damaged by his testimony regarding the letter of direction he wrote….Respondent also attempted to avoid answering some questions and held back information.
Id. at 21.
Even fully considering the Hearing Board's finding in that regard in aggravation, however, we conclude that the misconduct at bar does not require a one-year suspension. First, the Administrator's recommendation is based upon an additional finding of misconduct that we have declined to make. We conclude, as well, that the cases the Administrator cites in support of a one-year suspension all involve substantially more egregious misconduct than has been found in this case - in part because they all involve a personal benefit to the respondent that is not present here.
In re Sax, 03 CH 99 (Review Bd., Nov. 27, 2007), Respondent's petition for leave to file exceptions denied, M.R. 22139 (Mar. 17, 2008), involved an individual, Steve Ruttenberg, who had the idea but no capital for a golf-themed restaurant. He verbally agreed to a partnership with Keith Rudman, who had the financial means required. Rudman, who had been friends with the respondent since they were seven years old, brought in the respondent's law firm. Ruttenberg disclosed all of his information, as he reasonably believed that the firm was
representing the Ruttenberg/Rudman partnership. By the time the restaurant opened, Ruttenberg had been completely cut out of the deal and Sax was a partner, a shareholder and the corporation's general counsel. The Review Board was "troubled by [the respondent's] refusal to recognize that he [had] committed such obvious misconduct." Sax was suspended for six months.
In In re Twohey, 191 Ill.2d 75, 727 N.E.2d 1028, 245 Ill. Dec. 294 (2000), the respondent was suspended for six months after he convinced a recently widowed client to invest $40,000 in a company for which he was legal counsel. She lost her entire investment when the company filed for bankruptcy. Like Respondent, Twohey failed to understand his ethical obligations. The court found that he withheld information concerning the company's financial instability that might have kept his client from investing. Twohey's misconduct was not an isolated incident as it was in this case, as he convinced his client to loan the company $20,000, convert it to equity, and then borrow $20,000 to invest more. Twohey was found to be responsible for the harm to his client. Respondent here was not.
Sardis Enterprises, Inc. was a company that imported pineapples from Ghana. The respondent in In re Childs, 07 CH 95 (Review Bd., July 26, 2010), petitions for leave to file exceptions allowed; sanction modified, M.R. 24094 (Nov. 12, 2010), who had invested funds and "sweat equity" in Sardis, convinced a client to invest $25,000 in the corporation. Shortly afterwards, it was involuntarily dissolved. A Sardis employee and two others formed another company, KD International, which took over the business that Sardis had abandoned. Childs convinced a second client to invest $25,000 in KD, without disclosing that he was a shareholder in the company and member of its board of directors. Neither client ever received the stock that
they had been promised, or received their investment back. Childs was suspended for one year and until he made restitution, with interest, to his clients.
The respondent in In re Demuth, 126 Ill.2d 1, 533 N.E.2d 867, 127 Ill. Dec. 785 (1988), was suspended for one year after he arranged an $18,000 loan from one client to another, but never filed the documents securing the loan. He placed the funds in his escrow account and quickly converted $15,500. Demuth also personally borrowed $11,600 from his lender client, without suggesting that he should consult another attorney or disclosing that he was facing financial difficulties. The lender had to file suit against Demuth before he was repaid.
While each case is unique, predictability and fairness require that sanctions should be consistent with those imposed in cases involving comparable misconduct. In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 242 Ill. Dec. 595 (1999). We have examined In re O'Donnell, 04 CH 115 (Review Bd., Dec. 12, 2007), Administrator's petition for leave to file exceptions denied, M.R. 22181 (Mar. 17, 2008), relied upon by the Hearing Board, and conclude that while not entirely comparable, it provides support for a three-month suspension.
In that case, O'Donnell and Mikola Pawlenko, Jr. were acquaintances who attended the same AA meetings. Pawlenko became disabled from an accident and needed money to pay his debts. He obtained a loan from a friend that was secured by property that his mother placed in a land trust, with the friend as the beneficiary. Pawlenko had an option to redeem the property and five days before its expiration, he contacted the respondent. O'Donnell felt "extremely rushed," due to the time limitations, but he found an investor, John Versgrove, to buy the property for less than its current market value but more than its option price. The respondent prepared the necessary documents, which Pawlenko signed. The respondent did not explain the documents as he thought that Pawlenko understood them, but Pawlenko did not.
O'Donnell then sent the documents to Versgrove to sign, and included a power of attorney allowing O'Donnell to act on his behalf. He also included documents creating a land trust of which Versgrove was the beneficial owner, which O'Donnell had prepared for him without informing Pawlenko. O'Donnell recorded the executed documents, even though the option sale was not complete. A later amendment to the agreement was signed by Pawlenko and by O'Donnell on Versgrove's behalf. Pawlenko had no fee agreement with O'Donnell, and testified that he assumed Versgrove would be paying the fees. In fact, the documents provided that Pawlenko was responsible for O'Donnell's $10,000 fee.
Pawlenko did not know when the option sale took place, as O'Donnell signed the documents for him. He received a notice to vacate the property, which the respondent had prepared on Versgrove's behalf. When Pawlenko refused to leave, the respondent referred Versgrove to another attorney to file a forcible detainer action, since he was not a litigator. The respondent intended to testify as Versgrove's only witness until the court barred him from doing so because of his relationship with Pawlenko.
The Review Board found that O'Donnell's misconduct was the result of carelessness that occurred when he tried to deal with the urgencies of the situation where the client had contacted him at the last minute. Acting under significant time pressure, he made an error in trying to solve Pawlenko's problem and attempting to broker a deal that would be advantageous to both parties. O'Donnell engaged in a conflict of interest and he failed to explain the advantages and risks involved in doing so to his clients. He also engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, as after the closing of the option sale, he made changes to the real estate transfer declaration before recording it. The Hearing and Review Boards both agreed that a short suspension was required, in part because his clients were harmed
by his misconduct. O'Donnell presented significant mitigating evidence and was suspended for sixty days.
We note that a lesser sanction is often imposed when a respondent with no prior misconduct represents multiple parties to a transaction without causing harm to his clients. See, e.g., In re Dixon, 07 CH 115, petition to impose discipline on consent allowed, M.R. 22629 (Nov. 18, 2008) and In re Murzyn, 05 CH 73, petition to impose discipline on consent allowed, M.R. 21436 (Mar. 19, 2007), (respondents censured for representing both buyers and sellers in real estate closings). In recommending a sanction greater than that of O'Donnell, we pay particular attention to the Hearing Board's finding that "Respondent also engaged in additional misconduct when he failed to adequately represent the buyer, Mr. Lopez." In re Gallo, supra, 07 CH 110 (Hearing Bd., April 14, 2011) at 27.
After consideration of the evidence and all of the circumstances, we affirm the Hearing Board's findings of fact and findings of misconduct and recommend that Respondent be suspended from the practice of law for a period of three months.
Date Entered: 19 January 2012
Daniel P. Duffy
1 Ryhs Pareja did not testify at the hearing. The parties stipulated that if called as a witness, Pareja would assert his Fifth Amendment privilege.
2 The $495 was eventually refunded by the title company, as the charge was a mistake.