BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 07 CH 88
JOINT STIPULATION OF FACTS
AND RECOMMENDATION FOR REPRIMAND AGAINST RESPONDENT
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Allison L. Wood, and Respondent, Bruce Hoffman, by his attorney, Warren Lupel, stipulate that the following facts are true, and make the following recommendation as to the appropriate resolution of this case:
I. JOINT STIPULATION OF FACTS
1. Respondent and Daniel Reusnow ("Daniel") were friends and Respondent had represented Daniel in other legal matters, including the purchase of Daniel's house. In December 2005, Daniel contacted Respondent and asked him to prepare a Power of Attorney for Daniel's mother, Betty Jane Reusnow ("Betty Jane"). Daniel told Respondent that Betty Jane, who was blind and then 81 years of age, had been hospitalized due to a weather-related accident that resulted in the amputation of all of her fingers. Betty Jane was hospitalized in Advocate South Suburban Hospital ("Hospital") from December 5, 2005 through January 22, 2006.
2. Daniel explained to Respondent that he had a two-page Arkansas durable Power of Attorney ("Arkansas DPOA"), dated September 6, 1994, that he believed gave him power
over Betty Jane's affairs. Daniel told Respondent that when he presented the Arkansas DPOA to a financial institution in an attempt to transfer funds from Betty Jane's account, his request was not honored because the Arkansas DPOA was an out-of-state document. Daniel also told Respondent that he needed to transfer funds from Betty Jane's accounts so he could pay for Betty Jane's medical expenses.
3. In mid December 2005, Respondent agreed to prepare an Illinois durable Power of Attorney ("Illinois DPOA") at Daniel's request, and because of their friendship, Respondent did not charge Daniel for his service. Respondent prepared a nine-page Illinois DPOA and sent it to Daniel. Respondent directed Daniel to obtain Betty Jane's signature on the Illinois DPOA, and to have two witnesses attest to Betty Jane's signature. On January 10, 2006, Daniel went to the Hospital and presented the Illinois DPOA to Betty Jane. Daniel located two nurses who agreed to witness Betty Jane place her mark over her signature line. Respondent did not go to the Hospital on January 10, 2006, or at any other time.
4. On January 11, 2006, Daniel sent the Illinois DPOA, which had a mark over the signature line for Betty Jane, to Respondent. At no time did Respondent speak to Betty Jane to make inquiry as to whether she had made any mark on the Illinois DPOA. Respondent notarized the document and attested that he had witnessed Betty Jane place her mark on the document on January 10, 2006. Shortly thereafter, Respondent returned the Illinois DPOA to Daniel, who presented it to at least one financial institution and transferred approximately $40,000 of Betty Jane's funds which he later used for purposes unrelated to the medical care of Betty Jane.
5. After January 22, 2006, when Betty Jane was discharged from the hospital, she was transferred to a rehabilitation facility known as Crestwood Care Center, ("Crestwood"). On January 24, 2006, Betty Jane's nephew, Paul Hendrickson ("Paul") met her at Crestwood and
then took her to A.J. Smith Federal Savings Bank ("Bank"), where Betty Jane did most of her primary banking. While at the Bank, Betty Jane learned for the first time that Daniel had presented an Illinois DPOA, and that he had used it to close out some of her long-term investments. On February 5, 2006, with assistance of counsel, Betty Jane executed a written revocation where she claimed that she was blind, that she had no recollection of executing or authorizing the execution of the Illinois DPOA on January 10, 2006, and that on that date she was on medication and unable to sign documents due to the injuries sustained by her. Betty Jane was able to reclaim the funds transferred by Daniel.
6. At the time of the events described herein, the Illinois Notary Act, 5 ILCS 312/6-102, ("Notary Act") and the Notary Handbook, required notaries to witness the signature being notarized.
7. Respondent prepared the Illinois DPOA with his Notary Jurat, certifying that Betty Jane appeared before him. It reads:
I, Bruce Hoffman, a notary public in and for, and residing in the said County, in the State of the aforesaid, DO HEREBY CERTIFY, that Betty Jane Reusnow is personally known to me to be the same person whose mark has been subscribed to the foregoing instrument appeared before me this day in person, and acknowledged, signed and delivered the said Instrument as that person's free and voluntary act, for the uses and purposes therein set forth. [Emphasis in original.]
8. On January 11, 2006, the day after Betty Jane allegedly signed the Illinois DPOA, Respondent certified that Betty Jane had appeared before him on January 10, 2006 and executed the Illinois DPOA. In fact, Betty Jane had not appeared before Respondent and Respondent had not personally witnessed Betty Jane execute the Illinois DPOA.
9. As a result of Respondent's failure to witness the signatory mark on the Illinois DPOA, financial institutions relied on the notarized Illinois DPOA to honor requests of financial
transactions made by Daniel. Betty Jane had to incur legal costs and expenses in order to effectuate a revocation of the Illinois DPOA and to reclaim the funds transferred by Daniel.
10. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:
conduct involving dishonesty, deceit, fraud or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
conduct which tends to defeat the administration of justice or bring the courts of the legal profession into disrepute in violation of Supreme Court Rule 770.
III. FACTORS IN MITIGATION
11. Respondent has not been previously disciplined and has cooperated in this proceeding.
12. Respondent obtained no personal gain or benefit from his misconduct.
13. Respondent has acknowledged the impropriety of his conduct.
14. Respondent has agreed to complete the professionalism seminar presented by the Illinois Institute of Professional Responsibility.
IV. RECOMMENDATION FOR DISCIPLINE
15. The parties hereby waive the 21 day period for filing exceptions and request that the hearing Board administer a reprimand to Respondent at the conclusion of the hearing in this matter pursuant to Commission Rule 282.
16. The recommendation of reprimand is consistent with In re Ambrose, 93 Ill. 2d 42, 442 N.E.2d 900 (1982) where the court held that when an attorney has engaged in an isolated act of misconduct, reprimand is an appropriate sanction. In In re Ambrose, the attorney failed to
withdraw as counsel from a divorce proceeding after the client's failure to pay his fees and he failed to advise the client that he was no longer handling her case.
17. Similarly, in cases where the attorney made misrepresentations of which no personal benefit was obtained and the attorney otherwise had an unblemished career, the attorneys were reprimanded. See In re Myers, 98 CH 06 (Rev. Bd. reprimand April 6, 2000). In In re Myers, the attorney attested that the testator was in sound mind when she executed her will when she was not. He filed the will in probate and did not disclose to the court that he did not believe the testator was of sound mind.
18. The instant case resembles those cited above in that Respondent committed an isolated act of misconduct for which he received no personal gain, and Respondent otherwise has an unblemished career. His acceptance of responsibility and his completion of the professionalism seminar conducted by the Illinois Professional Responsibility Institute will help to ensure that he avoids such conduct in the future.
WHEREFORE, the Administrator and Respondent jointly request that the Hearing Board enter an order reprimanding Respondent as a result of his misconduct, and be required to attend a professionalism seminar presented by the Illinois Professional Responsibility Institute within one year from the date of said reprimand.
|Jerome Larkin, Administrator
Attorney Registration and
|Allison L. Wood
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Ste. 1500
Chicago, IL 60601
Telephone: (312) 565-2600
Counsel for Respondent
Lupel Weininger, LLP
30 North LaSalle Street,
Chicago, IL 60602
Telephone: (312) 845-2568
In the Matter of:
Commission No. 07 CH 88
Based upon the agreement and stipulation of the parties, the panel of the Hearing Board hereby makes findings, and reprimands and admonishes you, Bruce Hoffman, as follows:
1. You were charged with and found to have engaged in misconduct stemming from your notarization of a signatory mark on an Illinois Durable Power of Attorney (herein "POA") that you did not witness. By doing so, you certified that the signatory had appeared before you and executed the document, when in fact you had not been present when the POA was presented to the signatory.
2. As a notary, you were bound to comply with the provisions of the Illinois Notary Act, 5 ILCS 312/6-102 (herein "Notary Act"), which required you to personally witness the signature of the signatory. In notarizing a signatory mark that you did not witness, you did not comply with the requirements of the Notary Act.
3. As a result of your misconduct, financial institutions to whom the POA was presented, relied on the notarization and honored requests by the presenter of the POA to transfer funds held in the name of the signatory of the POA, which he then used for purposes unrelated to the medical care of the signatory. Subsequently, the signatory of the POA
incurred legal fees and costs to revoke the POA and to reclaim funds that had been transferred.
4. The Hearing Board has determined that your actions with regard to the false notarization were wrongful and in violation of Illinois Rules of Professional Conduct. Specifically, you engaged in conduct that violates Rule 8.4(a)(4); conduct involving dishonesty; Rule 8.4 (a)(5); conduct that is prejudicial to the administration of justice; and Supreme Court Rule 770; conduct which tends to defeat the administration of justice or to bring the legal profession into disrepute.
5. The Hearing Board has also determined that you have not been previously disciplined, that you have cooperated in these proceedings, that you have acknowledged the impropriety of your conduct, and that you otherwise have an unblemished career.
6. The Hearing Board has the authority, pursuant to Commission Rule 282 to administer a reprimand to a Respondent in lieu of recommending disciplinary action by the Court. The Board has determined that this course of action is appropriate in this case. You are therefore reprimanded for engaging in conduct which did not comport with the level of professionalism required of an attorney. In the future you are admonished to personally witness any and all signatory marks, or verifications, before you notarize them. Further, the Hearing Board has been advised that you have agreed to attend a professionalism seminar presented by the Illinois Institute of Professional Responsibility within one year from the date of this reprimand.
7. You are further advised that while this reprimand is not formally presented to the Illinois Supreme Court it is not to be taken lightly. This reprimand is a matter of public record and is on file with the Attorney Registration and Disciplinary Commission and may be admitted into evidence in subsequent disciplinary proceedings against you.
Lon M. Richey, Chair
Adrienne D. Mebane Panel Member
Kitchen, II, Panel Member
DATED: August 21, 2008