Filed January 9, 2009

In re Herb N. Elesh
Commission No. 08 CH 9

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) failing to act with reasonable diligence and promptness in representing a client; 2) failing to keep a client reasonably informed about the status of a matter and promptly to comply with reasonable requests for information; 3) failing to explain a matter to the extent necessary to permit the client to make an informed decision regarding representation; 4) withdrawing from employment in a proceeding before a tribunal without permission of the tribunal; 5) withdrawing from employment prior to taking reasonable steps to avoid foreseeable prejudice to the rights of the client; 6) engaging in conduct that is prejudicial to the administration of justice; and 7) engaging in conduct which is prejudicial to the administration of justice or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: Rule 1.3, 1.4(a), 1.4(b), 1.16(c), 1.16(d), and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Three month suspension and until Respondent completes the ARDC Professional Responsibility Institute.

DATE OF OPINION: January 9, 2009.

HEARING PANEL: Mary Pat Benz, Chair, Tiffany M. Ferguson and Cheryl M. Kneubuehl.

ADMINISTRATOR'S COUNSEL: Gina M. Abbatemarco.

RESPONDENT'S COUNSEL: Pro se.

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

In the Matter of:

HERB N. ELESH,

Attorney-Respondent,

No. 6237019.

Commission No. 08 CH 9

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on August 27, 2008 at the offices of the Attorney Registration and Disciplinary Commission ("ARDC"), Chicago, Illinois before a Hearing Board Panel consisting of Mary Pat Benz, Chair, Tiffany M. Ferguson and Cheryl M. Kneubuehl. Gina M. Abbatemarco appeared as counsel for the Administrator. Respondent appeared pro se.

PLEADINGS

On February 7, 2008, the Administrator filed a two count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged Respondent neglected two client matters, failed to communicate with his clients and failed to withdraw from his clients' matters. Respondent filed an Answer to the Complaint on March 14, 2008, in which he admitted some of the factual allegations, denied some of the factual allegations and denied all the allegations of misconduct.

THE EVIDENCE

The Administrator presented the testimony of Daniel Robin, David Butbul, Jeffrey Carpenter and Respondent and Exhibits 1-27. Respondent presented Exhibits 1, 3 and 6. The

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testimony of the witnesses, the Exhibits, and the admitted allegations of the Complaint established the following facts.

Background

Respondent graduated from law school and was admitted to practice law in Illinois in 1996. (Tr. 151-2). Respondent has been a solo practitioner since 2000 and started practicing immigration law at that time. (Tr. 152). He currently employs one person who performs paralegal work and is fluent in Spanish. (Tr. 152).

Count I

Admitted Facts

On November 16, 2004, Daniel K. Robin filed on behalf of his client, Sheila Carpenter ("Sheila"), a Petition for Dissolution of Marriage and a Petition for Order of Protection from her husband, Jeffrey Carpenter ("Jeffrey") in the Circuit Court of Cook County. (Adm. Ex. 2, 24, 25). The matter was docketed by the clerk of the court as In re the Marriage of Carpenter, case number 2004 D 331224. (Adm. Ex. 16).

On November 18, 2004, Respondent agreed to represent Jeffery in court regarding any proceedings relating to the Petition for Order of Protection and received $1,000 from Jeffrey. On November 19, 2004, Respondent filed an appearance and a Motion for Expedited Hearing on Emergency Order of Protection on behalf of Jeffrey in case number 2004 D 331224. (Adm. Ex. 1, 8). On November 24, 2004, Respondent appeared on behalf of Jeffrey for the hearing on his motion and the judge entered a plenary Order of Protection against Jeffery. (Adm. Ex. 2).

At all relevant times, Illinois Supreme Court Rule 13(c)(2) provided that:

"(2) An attorney may not withdraw his appearance for a party without leave of court and notice to all parties of record, and, unless another attorney is substituted, he must give reasonable notice of the time and place of the presentation of the

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motion for leave to withdraw, by personal service, or by certified mail directed to the party represented by him at his last known business or residence address."

Respondent did not request leave of court to withdraw his appearance on behalf of Jeffrey or take any other steps to withdraw from case number 2004 D 331224 after November 24, 2004.

Between November 24, 2004 and August 26, 2005, Respondent received a Notice and Motion to Default, Notice and Motion for Default Prove-Up and several letters discussing the proceedings in the case and enclosing copies of orders entered by the court from Sheila's attorney, Mr. Robin. (Adm. Ex. 3, 4, 5, 26). Respondent did not notify Jeffrey of the pleadings and correspondence he received from Mr. Robin. Respondent also did not appear in court on behalf of Jeffery, communicate with Jeffery about the status of his case or communicate with Jeffery about the status of Respondent's representation of him.

On May 17, 2005, the judge granted Sheila's motion to default Jeffrey based on the fact that Jeffery was represented by Respondent, proper notice was sent to Respondent on April 13, 2005 regarding the motion for default, and Jeffrey failed to answer the Petition for Dissolution of Marriage or appear at any of the court hearings. (Adm. Ex. 7). On August 26, 2005, the judge entered a default judgment of dissolution in case number 2004 D 331224. (Adm. Ex. 6).

Daniel K. Robin

Daniel K. Robin is an attorney and was admitted to practice law in Illinois in 1977. (Tr. 12). Mr. Robin has practiced in the area of divorce law since 1984. (Tr. 13-4).

When Mr. Robin filed the Petition for Dissolution of Marriage and a Petition for Order of Protection on behalf of Sheila, Jeffery received notice of the pending divorce proceedings and copies of both petitions. (Tr. 37-9). Mr. Robin became aware Respondent was representing Jeffery when he received the Motion for Expedited Hearing on Emergency Order of Protection in

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the mail. (Tr. 17). Mr. Robin faxed the Petition for Dissolution of Marriage that he filed on behalf of Sheila to Respondent on November 22, 2004. (Tr. 18-9; Adm. Ex. 17).

Mr. Robin and Respondent both appeared in court on the Motion for Expedited Hearing on Emergency Order of Protection and reached an agreement regarding Jeffery's visitation with his children. (Tr. 19-20, 40-1). Mr. Robin testified that Respondent handled the issues regarding the Order of Protection professionally and competently. (Tr. 41).

Respondent did not attend any further court hearings on the matter, and Mr. Robin did not receive any motion from Respondent to withdraw as Jeffery's attorney. (Tr. 21-2). Mr. Robin sent Respondent a request for an asset disclosure statement from Jeffery as part of the divorce proceedings. (Tr. 22-3; Adm. Ex. 3). Mr. Robin did not receive any response from that request, and it was not returned to him in the mail. (Tr. 24). Mr. Robins also attended status hearings in the matter and sent copies of those orders to Respondent, but he did not receive any response from Respondent. (Tr. 24-5; Adm. Ex. 26).

Eventually, Mr. Robin filed a motion for default because there had been no answer to the Petition for Dissolution of Marriage. (Tr. 24). Mr. Robin sent notice of the default motion, a copy of the order granting the default motion and notice that Mr. Robin was going to proceed with the default prove-up to Respondent, but Mr. Robin did not receive any response from Respondent, and the documents were not returned to Mr. Robin in the mail. (Tr. 26-7, 32-3; Adm. Ex. 4, 5, 7). Mr. Robin did not send notice of the default motion and default prove-up proceeding to Jeffery because he was represented by Respondent, and Mr. Robin did not want to violate the Illinois Rules of Professional conduct by communicating directly with Respondent's client. (Tr. 58-9).

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Mr. Robin also called Respondent and spoke to him directly to determine whether they could make any progress in the divorce proceeding. (Tr. 27-8). Respondent informed Mr. Robin that he only filed an appearance for the purpose of obtaining the Order of Protection. Mr. Robin advised him that he should withdraw from the matter to protect himself because he was still Jeffery's counsel in the divorce proceeding. (Tr. 28-9).

Mr. Robin testified Respondent checked the box for "Order of Protection" on the appearance he filed, but that it was impossible for Respondent to only file an appearance regarding the Petition for Order of Protection because it was one of many pending petitions in the same case. (Tr. 30; Adm. Ex. 8). Mr. Robin explained that an attorney who files an appearance for a client in a domestic relations case represents the client on all matters under that case number. It is possible to represent a client solely on an order of protection if the protection order is an independent proceeding that does not involve any other petitions. (Tr. 42-6). Mr. Robin testified that a limited appearance does not exist in domestic relations cases. Illinois Supreme Court Rule 13 governs how appearances are withdrawn in civil cases, including domestic relations cases. (Tr. 46, 63; Adm. Ex. 20).

A prove-up proceeding was held during which Mr. Robin advocated to the court what was in the best interest of the parties and Sheila testified. (Tr. 50-1). Jeffery was not present at the prove-up proceeding and neither was Respondent nor any attorney on behalf of Jeffery. (Tr. 51). Consequently, a Judgment for Dissolution of Marriage was entered without any participation by Jeffery or an attorney on his behalf. (Tr. 51; Adm. Ex. 6).

After the judgment was entered a new attorney, Robert L. Arnold, filed an appearance in the case on behalf of Jeffery. He filed a motion to vacate the Judgment for Dissolution of Marriage. (Tr. 33, 54, 60). The motion to vacate was pending for a year before an order was

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entered denying the motion. (Tr. 34-6). The order denying the motion to vacate stated that Jeffery was represented by Respondent who failed to withdraw in the matter, no answer was ever filed to the Petition for Dissolution of Marriage and Respondent received notice of the default proceedings but neither Respondent nor Jeffery appeared in court. (Adm. Ex. 9). During that year the parties resolved some disagreements over the provisions in the judgment. An agreed order was entered modifying the child support Jeffery was required to pay. (Tr. 33-5, 52-3; Adm. Ex. 27). Jeffery was represented by Mr. Arnold during that time. (Tr. 53).

Mr. Robin testified that Respondent's failure to appear or act on behalf of Jeffery caused delay in the divorce proceedings, as well as a dispute over how to calculate child support and post judgment litigation expense. (Tr. 47). Mr. Robin also testified that all clients who are parties to litigation have an obligation to follow their own cases. (Tr. 49).

Jeffery Carpenter

Jeffery Carpenter has been employed as a custodian for High School District 214 for seventeen years. (Tr. 126). Jeffery and his ex-wife Sheila have two children. (Tr. 127). Jeffery had not been married before his marriage to Sheila and has not been married since his divorce from Sheila. (Tr. 127).

Jeffery contacted Respondent when he received notice of the Petition for Order of Protection. He retained Respondent to represent him after speaking with Respondent on the telephone and meeting Respondent at his office. (Tr. 127-8). Jeffery was aware that a Petition for Dissolution of Marriage had also been filed because Respondent told him it was filed under the same case number as the Petition for Order of Protection. (Tr. 128-9, 132).

Jeffery gave Respondent his cell phone number when he retained him. Jeffery still has the same cell phone number which has voice mail. (Tr. 131-2). Jeffery slept at his mother's

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residence for a few nights, at his father's residence for a few nights, and he spent a few nights in his car after he was served with the Petition for Order of Protection. (Tr. 144). Subsequently, he moved into an apartment at his father's residence at 308 North Belmont, Arlington Heights, Illinois, where he currently resides. (Tr. 126, 144).

A few days after his initial meeting with Respondent, Jeffery went to Respondent's office and paid him $1,000 in cash and signed a document entitled "Divorce Receipt and Agreement." (Tr. 129-30; Adm. Ex. 15). Jeffery knew the $1,000 fee was for Respondent's representation of him regarding the Order of Protection and not for Respondent to represent him in the divorce proceeding. (Tr. 130). Jeffery and Respondent never discussed Jeffery paying any additional money to Respondent. (Tr. 147).

Jeffery was hopeful that there would be a reconciliation between him and Shelia after the issues regarding the Order of Protection were resolved. (Tr. 130). Jeffery expected Respondent would keep him informed about what was going on with the divorce proceedings based on the agreement he signed with Respondent. (Tr. 130-1; Adm. Ex. 15). Jeffery did not understand that he and Respondent would have to have a separate agreement for Respondent to represent him going forward in the divorce proceeding. (Tr. 142).

Respondent represented Jeffery at the Order of Protection hearing. Jeffery, Respondent, Sheila and Mr. Robins participated in a discussion about visitation with the children during the upcoming holidays and going to mediation to pursue a reconciliation between Jeffery and Sheila. (Tr. 133). Jeffery was satisfied with Respondent's representation regarding the Petition for Order of Protection. (Tr. 142). Jeffery and Sheila went to mediation six times from early December through February and April through May after the Order of Protection hearing. (Tr. 134). Sheila did not inform Jeffery that the divorce proceeding was going forward while they

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were going to mediation. Jeffery was not aware that the divorce proceeding was moving forward during that time, but he knew the divorce was still pending. (Tr. 134,137).

Jeffery thought Respondent was going to inform him if there was a court date in the divorce proceeding. (Tr. 134-5). Jeffery never received any communication from Respondent regarding matters in the divorce proceeding that were unrelated to the Order of Protection. (Tr. 147). Jeffery did not receive any notice from Respondent that he was going to be defaulted in the divorce proceeding and did not receive copies or notice of the default motions Mr. Robins filed in the divorce case from Respondent. (Tr. 135-6; Adm. Ex. 3, 4, 5). Jeffery did not stop by Respondent's office or call Respondent to inquire about the status of the divorce proceeding because it was an emotional time and he was focused on reconciliation with Sheila. (Tr. 141).

Jeffery was informed by Sheila on the telephone in late August or early September of 2005 that they were divorced. (Tr. 136-7, 145). Jeffery did not call Respondent when he learned the divorce was final, because he had no money or income. (Tr. 146). Jeffery spoke to a friend who referred an attorney to him named Robert Arnold and Jeffery hired Mr. Arnold. (Tr. 137, 146). Jeffery wanted Mr. Arnold to vacate the divorce judgment. Jeffery paid him $1,500. Mr. Arnold was not able to vacate the judgment. (Tr. 137-8).

Jeffery believes Respondent's failure to act on his behalf harmed him because the divorce judgment was unfair and Sheila has sole custody of the children and all the proceeds from the equity in their marital home. (Tr. 145). Jeffery has visitation with his children, but believes the amount of child support and spousal maintenance he is required to pay is unfair because it is too much. (Tr. 138-9, 142).

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Respondent

Respondent was not aware that he had an obligation to file a motion to withdraw in Jeffery's divorce proceeding because he thought he had entered a limited appearance to only represent Jeffery regarding the Order of Protection. (Tr. 184, 186-7). On the appearance form there was a choice between "Order of Protection" and "Dissolution of Marriage" and Respondent checked the box next to "Order of Protection." (Tr. 184-5). Respondent admitted that he might have made a mistake in not realizing that he filed an appearance for the entire case and testified that this was because he is a younger attorney. (Tr. 185).

Respondent also testified that he did not know in 2006 that independent proceedings generated a separate case number. (Tr. 194-5). Respondent acknowledged that on the Order of Protection form he prepared, the box next to "Other Civil Proceeding, specify" is checked and Respondent wrote in "Dissolution" and the box next to "Independent Proceeding" is not checked. (Tr. 193-4; Adm. Ex. 2 at 1).

Respondent received all of the documents that were sent to him by Mr. Robin including the Petition for Dissolution of Marriage, the asset disclosure statement, notice of the default motion, a copy of the order granting the default motion and notice that Mr. Robin was going to proceed with the default prove-up. (Tr. 158; Adm. Ex. 3, 4, 5, 7, 17). Respondent reviewed all of those documents, but did nothing to alert the court or Mr. Robinson that he was no longer representing Jeffery. (Tr. 186). Respondent knew Mr. Robinson stated in his motion for default that Respondent was Jeffery's counsel and was not appearing in court for hearings. Respondent thought he did not have to appear because he had filed a limited appearance in the matter. (Tr. 186-7). When Mr. Robinson made it clear to Respondent that he thought he was still the attorney of record in the case and told Respondent he needed to file a motion to withdraw,

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Respondent still thought he had no obligation to withdraw and did not want to take directions from opposing counsel. (Tr. 185-6).

Respondent did not forward any of the documents he received from Mr. Robin to Jeffery because he did not know where Jeffery was residing. (Tr. 158). Jeffery gave Respondent his phone number when he retained Respondent in November 2004. (Tr. 158-9). Respondent thought he had completed his representation of Jeffery as of January 2005 because the proceedings relating to the Petition for Order of Protection were completed. (Tr. 158). Respondent was not certain whether he had Jeffery's phone number after that period of time. (Tr. 158).

Respondent did not recall whether he tried to call Jeffery's phone number and he did not use the phone number to try to locate Jeffery's address through reverse directory assistance. (Tr. 159-60). Respondent also did not contact Mr. Robin to determine whether Sheila knew where Jeffery was residing. (Tr. 160). Respondent did not try to contact Jeffery at the address Respondent listed for him on the Order of Protection, which was 101 N. Lincoln Lane, Arlington Heights, Illinois. (Tr. 160-1, 191-2; Adm. Ex. 2 at 1). Jeffery provided that address to Respondent and it was the last known address Respondent had for Jeffery. (Tr. 191-2). Respondent did not know whether that address was Jeffery's mother's or father's residence. (Tr. 192). Respondent never came into possession of another address for Jeffery. He probably could have used that address to notify Jeffery if Respondent had decided to file a motion to withdraw his appearance. (Tr. 192-3).

Respondent and Jeffery signed a document entitled "Divorce Receipt and Agreement" on November 18, 2004. (Adm. Ex. 15). Respondent wrote in language to clarify that he agreed to represent Jeffery regarding the proceedings relating to the Petition for Order of Protection, but he

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did not strike any of the terms which related to advising Jeffery on the divorce proceedings. (Tr. 163-4; Adm. Ex. 15). Respondent admitted that the document was sloppy and confusing and that he should have created a separate document instead of using the form document. (Tr. 163-4). Respondent was confident that Jeffery understood the terms of their agreement and testified that it was disingenuous of Jeffery to suggest that Respondent should have known Jeffery expected Respondent to be involved in his case after the issues regarding the Order of Protection were resolved. (Tr. 163-4, 195-6). Respondent further testified that Jeffery had a responsibility to be aware of his divorce proceedings and that it was "silly" that Jeffery was in "Never Never Land" and was in denial about the divorce. (Tr. 202).

Respondent does not currently have a full copy of Jeffery's file. He retained it for a few months after he thought he had completed all the work on the matter. (Tr. 164-5). Before the ARDC proceedings Respondent's normal office procedure was to throw out old files every six months, but he now knows he should retain files for four to five years. (Tr. 198).

Count II

Admitted Facts

In September 2005, Fadil Muratoski was personally served with notice that removal proceedings were pending against him in the Immigration Court in Boston and that he was ordered to appear at the Court in Boston on a date and time to be set. (Adm. Ex. 18 at 5-6). In January 2006, a notice was sent to Mr. Muratoski informing him that he had a hearing scheduled at the Immigration Court in Boston on July 12, 2006. (Adm. Ex. 18 at 9). In June 2006, Respondent agreed to represent Mr. Muratoski in his immigration matter to change the venue of Mr. Muratoski's immigration removal proceedings from Boston to Chicago. Mr. Muratoski paid

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Respondent a total of $1,000 as Respondent's fixed fees and costs to handle his immigration matter.

On June 28, 2006, Respondent filed an appearance on behalf of Mr. Muratoski and a Motion to Change Venue before the Immigration Court in Boston. (Adm. Ex. 10, 18 at 11-12, 17). Respondent received a July 11, 2006 order from the Immigration Court in Boston denying his Motion to Change Venue because he did not comply with the local immigration court procedures in filing it. (Adm. Ex. 18 at 17-18). The order also stated that Respondent could resubmit the motion on behalf of Mr. Muratoski and that the hearing was rescheduled for July 26, 2006. (Adm. Ex. 18 at 17-18). A notice dated July 11, 2006, was sent to Mr. Muratoski informing him that his hearing scheduled at the Immigration Court in Boston was rescheduled for July 26, 2006 and that the Motion to Change Venue had been denied. (Adm. Ex. 18 at 15-16).

On July 18, 2006, Respondent resubmitted a Second Motion to Change Venue to the Immigration Court in Boston, which was denied on July 25, 2006. (Adm. Ex. 18 at 19-20). On July 26, 2006, the Immigration Court in Boston ordered Mr. Muratoski to be removed from the United States because neither Mr. Muratoski nor Respondent was present at the July 26, 2006 hearing. (Adm. Ex. 18). A copy of the July 26, 2006 order removing Mr. Muratoski from the United States was mailed to Respondent. (Adm. Ex. 18 at 22-3)

David Butbul

David Butbul is an attorney and has practiced in the area of immigration law since 1991. (Tr. 66). Mr. Butbul was retained by Mr. Muratoski in May 2007 and continues to represent him. (Tr. 67). Mr. Muratoski paid Mr. Butbul $710 to represent him in his immigration matter because he received a deportation letter. (Tr. 67-8, 76-7). Mr. Muratoski told Mr. Butbul he had

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hired Respondent to change the venue of his immigration matter from Boston to Chicago, but that Respondent told him the change of venue was not approved and to wait to determine how to proceed. (Tr. 75). Mr. Butbul called an automated toll-free number to determine the status of Mr. Muratoski's immigration matter and was informed the venue had been changed to Chicago and an order for removal was entered in absentia because Mr. Muratoski did not appear for a hearing on February 27, 2007. (Tr. 68, 75-6, 117-8; Adm. Ex. 18 at 96-7).

Mr. Butbul testified that on February 9, 2007, the Immigration Court in Boston granted the change of venue and transferred Mr. Muratoski's immigration hearing to Chicago as a result of the motions Respondent filed on behalf of Mr. Muratoski and a motion to reopen Mr. Muratoski's case which was filed by the Department of Justice Executive Office for Immigration Review in January 2007 and served on Respondent. (Tr. 108-9, 122-4, Adm. Ex. 18 at 66-91, 92-4, 105-7). On February 14, 2007, the Immigration Court in Chicago mailed a hearing notice to Respondent, who was the attorney of record, informing him that Mr. Muratoski had been scheduled for a hearing in Chicago on February 27, 2007 and that Mr. Muratoski' failure to appear at the hearing could result in an order of removal being entered against Mr. Muratoski. (Tr. 110-11; Adm. Ex. 18 at 95, 105-7). When Mr. Muratoski failed to appear for the hearing on February 27, 2007, the Immigration Court in Chicago ordered Mr. Muratoski to be removed from the United States and sent a copy of that order to Respondent. (Tr. 111-13; Adm. Ex. 18 at 96-7, 105-7).

Mr. Butbul testified that Mr. Muratoski was not notified that he was required to appear at a hearing in Chicago and was not aware that the venue of his immigration proceedings had been changed to Chicago. (Tr. 68, 76). Mr. Butbul believed Mr. Muratoski when he told him he was unaware of the proceedings in Chicago because Mr. Murtoski had hired and paid Respondent to

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change the venue of his proceedings to Chicago and it was in Mr. Muratoski's best interest to appear at the hearing. (Tr. 76). Mr. Butbul further testified that Mr. Muratoski was aware of the proceedings in Boston and that he was required to appear at a hearing in Boston, but that Mr. Muratoski was not sent any notification regarding the proceedings in Chicago until Muratoski received a deportation letter for his failure to appear at the hearing in Chicago. (Tr. 76-7, 102). That letter was the first time the Immigration Court communicated directly with Mr. Muratoski regarding the proceedings in Chicago instead of Respondent, who was his attorney of record. (Tr. 76-7). All correspondence regarding Mr. Muratoski's immigration matter was sent to Respondent and not to Mr. Muratoski after Respondent filed his appearance in the matter in June 2006. (Tr. 107).

Mr. Butbul filed a Motion to Reopen and for Stay of Removal on May 15, 2007, in the Immigration Court in Chicago. (Tr. 68-9; Adm. Ex. 18 at 98-100). The United States Department of Homeland Security, Immigration and Customs Enforcement ("DHS") did not oppose Mr. Butbul's Motion to Reopen, but the Immigration Court in Chicago denied it. (Tr. 69; Adm. Ex. 18 at 102, 105-7). The order denying Mr. Butbul's Motion to Reopen stated that Mr. Muratoski received sufficient notice of the February 27, 2007 hearing because the notice was mailed in a timely manner to Respondent, who was Mr. Muratoski's attorney of record. (Adm. Ex. 18 at 105-7). The Court also noted that neither the hearing notice nor the Court's order of February 27, 2007, were returned after being mailed to Respondent and that Mr. Muratoski had not alleged that he receive ineffective assistance of counsel in compliance with the requirements of a Board of Immigration Appeals ("BIA") decision, Matter of Lozada. (Adm. Ex. 18 at 105-7).

Mr. Butbul informed Mr. Muratoski that the motion was denied and that the only remaining course of action as to file a Notice of Appeal before the BIA. (Tr. 71). In order to file

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an appeal alleging Respondent did not provide him with notice of his February 27, 2007 hearing in the Immigration Court in Chicago, Mr. Muratoski was required by a BIA decision, Matter of Lozada, to file a complaint against Respondent to the ARDC, which he did. (Tr. 71-2, 82-3; Adm. Ex. 18 at 111). Mr. Butbul filed a Notice of Appeal on behalf of Mr. Muratoski on August 15, 2007, and that appeal is still pending. (Tr. 72-3; Adm. Ex. 18 at 110-115, 122-128). The position of DHS on the appeal is that the matter needs to be reopened and sent back to the Immigration Court in Chicago. (Tr. 73). Mr. Muratoski paid Mr. Butbul an additional $1,110 to represent him in his appeal. (Tr. 74).

Mr. Butbul also testified that according to the American Immigration Law Foundation the two main situations where individuals who were ordered removed or deported can reopen their case are: (1) they did not receive the notice of the hearing, or (2) they did not appear at their hearing because of exceptional circumstances. (Tr. 103; Resp. Ex. 6). Mr. Butbul acknowledged that at some point Mr. Muratoski was aware he had a hearing date at the Immigration Court in Boston. (Tr. 103).

Mr. Butbul was aware that Mr. Muratoski had been charged by the federal court with falsifying documentation of U.S. citizenship, which is a crime of moral turpitude and might result in an individuals' removal from the United States. (Tr. 86-7). Mr. Muratoski also filed an application for asylum for a refugee in the United States, which is the relief he is seeking in his immigration matter. (Tr. 88-9). Mr. Muratoski had a prior removal case in Detroit, Michigan in 1997. (Tr. 96; Resp. Ex. 3).

Mr. Butbul testified that in order to withdraw from representing a client in an immigration matter the attorney must file a motion to withdraw before the Immigration Court stating the reasons why the attorney does not want to represent the client any longer. (Tr. 120).

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Mr. Butbul has had to file motions to withdraw from cases where the client refused to pay him for his services. (Tr. 120). Motions to withdraw are routinely granted in immigration matters. (Tr. 120-1).

Respondent

Respondent never withdrew his appearance in Mr. Muratoski's matter because he was not aware that he had an appearance in the case. (Tr. 180). The two motions to change venue Respondent filed in Mr. Muratoski's immigration matter were rejected by the Immigration Court in Boston because of Respondent's failure to comply with the local rules. (Tr. 153-6). Respondent also filed an appearance with both motions to change venue. Because both motions were denied he assumed his appearance had been rejected as well. (Tr. 153-6; Adm. Ex. 10).

Respondent received the first motion to change venue back in the mail. He diligently tried to remedy the motion, but the Immigration Court in Boston did not identify which local rule he did not comply with and he "couldn't figure it out." (Tr. 166). Respondent further testified that he "wasn't smart enough to figure out what was insufficient" with the first motion to change venue. (Tr. 176).

Respondent testified that he reviewed the local rules for the Immigration Court in Boston before he filed the second motion to change venue, but in both motions he failed to admit the allegations and charges, designate a country in the event of deportation or removal or request any specific relief, which are all currently required by the local rules. (Tr. 169-71; Resp. Ex. 5). Respondent also did not file the second motion to change venue 14 days prior to Mr. Muratoski's hearing date in the Immigration Court in Boston as required by the local rules. He did not have time to comply within that time period because the first motion to change venue was denied 14 days before the hearing, and Respondent received it a few days later. (Tr. 171-5; Adm. Ex. 18 at

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19-21). Respondent did not request more time to comply, but filed the second motion to change venue as quickly as he could. (Tr. 173-5).

Respondent did not assume that his appearance had been accepted even though the July 26, 2006, order stating that Mr. Muratoski was ordered removed from the United States for his failure to appear at his hearing was mailed to Respondent and not Mr. Muratoski. (Tr. 178; Adm. Ex. 18 at 22-3). Respondent communicated to Mr. Muratoski that both motions to change venue were denied and Mr. Muratoski was ordered removed from the United States. (Tr. 177-8). Once Respondent received the July 26, 2006 order stating that Mr. Muratoski was removed Respondent thought Mr. Muratoski's immigration case was over and that it was not possible for there to be any further action on the matter. (Tr. 179).

Respondent testified that he agreed to represent Mr. Muratoski only for purposes of the motion to change venue and that Mr. Muratoski should have known he was not taking any further action in his case. (Tr. 196). Respondent did not have a copy of the retainer agreement for Mr. Muratoski's case. (Tr. 204). Respondent further testified that he told Mr. Muratoski he had to go to the hearing at the Immigration Court in Boston if the motion to change venue was not granted because the consequences for not appearing are very severe. (Tr. 200, 202). Respondent stated that it was not possible Mr. Muratoski was waiting to hear from Respondent about whether he had to appear in Boston after Respondent filed the second motion to change venue because there was not enough time for Mr. Muratoski to wait to find out. (Tr. 204-5). Respondent acknowledged that if the second motion to change venue had been granted two days before the hearing Mr. Muratoski would not have had to appear in Boston. (Tr. 205).

On January 30, 2007, a motion filed by the Department of Justice Executive Office for Immigration Review to reopen Mr. Muratoski's proceedings was mailed to Respondent. (Tr.

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179-80; Adm. Ex. 11). Respondent testified that he received the motion, but did not notify Mr. Muratoski about the motion because he was not in communication with Mr. Muratoski at that time and did not know how to reach him. (Tr. 180). Respondent did not try to contact Mr. Muratoski at the address Respondent had for him which was on the appearance Respondent had filed in the matter. (Tr. 180; Adm. Ex. 8). Respondent also did not contact the attorney for the Department to inform him that Respondent was no longer representing Mr. Muratoski in the matter. (Tr. 180). Respondent thought the attorney for the Department sent him the motion by mistake and did not want to assist the Department in their efforts to seek a harsher penalty against Mr. Muratoski. (Tr. 183-4).

Respondent was aware that the venue in Mr. Muratoski's immigration matter had been changed to Chicago on February 9, 2007, because Respondent received an order stating that the venue had been changed from the Immigration Court in Boston. (Tr. 182, 188; Adm. Ex. 14 at 1-3). The order dated February 9, 2007 stated that Respondent was the attorney of record in Mr. Muratoski's case. (Tr. 189-90; Adm. Ex. 14 at 3). Respondent testified that he did not understand that to mean he was the attorney of record for Mr. Muratoski because he thought the matter was closed. He admitted that as of February 9, 2007, the Immigration Court was naming him as the attorney of record. (Tr. 189-90). Respondent also thought it was possible Mr. Muratoski had a new attorney when he received the order changing the venue to Chicago, but he did not call the automated toll-free number to check the status of Mr. Muratoski's case. (Tr. 182-3).

Respondent received a notice from the Immigration Court in Chicago dated February 11, 2007, stating that Mr. Muratoski had been scheduled for a hearing in Chicago on February 27, 2007 and that Mr. Muratoski's failure to appear at the hearing could result in an order of removal

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being entered against Mr. Muratoski. (Tr. 180-1; Adm. Ex. 12). Respondent did not send the notice to Mr. Muratoski or try to contact him in any other way. (Tr. 181). Respondent also received a decision from the Immigration Court in Chicago which ordered that Mr. Muratoski be removed from the United States because Mr. Muratoski failed to appear for the hearing on February 27, 2007. (Tr. 181; Adm. Ex. 13 at 1-2). Respondent did nothing to notify Mr. Muratoski of the decision. (Tr. 181).

Respondent does not currently have a copy of Mr. Muratoski's file because he only retained the file for a few months after he thought he had completed the work for the matter. (Tr. 164). Before the ARDC proceedings, Respondent's normal office procedure was to throw out old files every six months, but he now knows he should retain files for four to five years. (Tr. 198).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must establish charges of lawyer misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill.2d 163, 168, 710 N.E.2d 390 (1999). It is well settled that "clear and convincing evidence is a standard of proof, which, while less than the criminal standard of proof beyond a reasonable doubt, is greater than the civil standard of preponderance of the evidence." Cleary and Graham, Handbook of Illinois Evidence, sec. 301.6 (6th ed. 1994). This standard of proof is one in which the risk of error is not equally allocated; rather, this standard requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66, 102 S. Ct. 1388 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12).

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It is the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh the conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill.2d 178, 196, 623 N.E.2d 300 (1993). With the above principles in mind and after careful consideration of the admitted facts, testimony and exhibits, we make the following findings.

Count I

We find Respondent engaged in the following misconduct:

  1. failure to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Illinois Rules of Professional Conduct;

  2. failure to keep a client reasonably informed about the status of a matter and promptly to comply with reasonable requests for information in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

  3. failure to explain a matter to the extent necessary to permit the client to make an informed decision regarding representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct;

  4. 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

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

Respondent filed an appearance with the court in Jeffery's divorce case and remained the attorney of record in the case after the issues regarding the Order of Protection were resolved despite Respondent's testimony that he and Jeffery agreed the representation would be limited to the Order of Protection. Respondent wrote in language which referred only to representation for purposes of the Order of Protection on the written agreement he and Jeffery signed, but failed to strike any language from the agreement which referred to Respondent advising Jeffery on the divorce proceedings. Additionally, Jeffery testified that he thought Respondent would keep him informed about the status of his divorce proceedings.

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Respondent had a responsibility to inform Jeffery, the court and opposing counsel that he was no longer Jeffery's attorney after he represented him regarding the Order of Protection if he intended to withdraw from the case. Respondent also had a duty to protect Jeffery's rights until he withdrew from the case. In re Berkos, 93 Ill.2d 408, 412-3, 444 N.E.2d 150 (1982). Respondent admitted that he did not withdraw from the case, that he did not do any further work on the case and that he did not communicate with Jeffery or keep him informed about the status of his divorce proceeding. Because of Respondent's neglect and failure to withdraw from the matter, Jeffery did not receive any notice regarding the default proceedings in his divorce case and was deprived of his day in court.

Respondent argued that he was unaware of his responsibility to withdraw from Jeffery's divorce proceeding. We do not find this argument plausible. Even if Respondent was unaware of his duty to withdraw, he still made no effort to contact Jeffery or forward the documents and correspondence Respondent received from opposing counsel regarding the divorce proceedings to him. Respondent knew Jeffery was not receiving notice of the proceedings because opposing counsel directed all of his correspondence and filings to Respondent. In fact, opposing counsel informed Respondent of his responsibility to withdraw from the case if he was not going to represent Jeffery. The evidence showed Respondent had numerous means of locating his client, but he made no effort to contact Jeffery and inform him about the case.

We find Respondent did not engage in the following misconduct:

  1. withdrawing from employment in a proceeding before a tribunal without permission of the tribunal, in violation of Rule 1.16(c) of the Illinois Rules of Professional Conduct; and

  2. withdrawing from employment prior to taking reasonable steps to avoid foreseeable prejudice to the rights of the client, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct.

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Respondent did not even attempt to withdraw from Jeffery's divorce case. Therefore we do not find that he withdrew from the case incorrectly.

Count II

We find Respondent engaged in the following misconduct:

  1. failure to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Illinois Rules of Professional Conduct;

  2. failure to keep a client reasonably informed about the status of a matter and promptly to comply with reasonable requests for information in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

  3. failure to explain a matter to the extent necessary to permit the client to make an informed decision regarding representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct;

  4. 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

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

Respondent filed an appearance in Mr. Muratoski's immigration matter and remained the attorney of record in the matter after both motions to change venue he filed on behalf of Mr. Muratoski were denied. The Immigration Court in Boston ordered Mr. Muratoski removed from the United States in July 2006 and sent the order to Respondent. Respondent then received a motion to reopen Mr. Muratoski's immigration matter in January 2007 from opposing counsel and in February 2007 he received notice that Mr. Muratoski's immigration matter was reopened and the venue was changed from Boston to Chicago. Respondent knew that Mr. Muratoski did not receive notice of his immigration proceedings in Chicago, because Respondent was the attorney of record in the case and was receiving all the Court's orders and notifications. Respondent had a duty to withdraw from the matter and notify the Immigration Court and Mr. Muratoski that he no longer represented Mr. Muratoski. Respondent also had a duty to protect

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Mr. Muratoski's rights until he withdrew from the case. In re Berkos, 93 Ill.2d 408, 412-3, 444 N.E.2d 150 (1982).

Respondent failed to withdraw from Mr. Muratoski's immigration matter and did nothing to contact Mr. Muratoski and inform him that he was required to appear for a hearing in Chicago. Mr. Muratoski's contact information did not change during the time Respondent represented him and Respondent had the means to communicate with him. Respondent's failure to keep Mr. Muratoski informed about the status of his immigration matter caused his client serious harm. Mr. Muratoski was unaware that he was required to appear for a hearing in Chicago and when he did not appear, the Immigration Court ordered that Mr. Muratoski be removed from the United States. Respondent was aware of the serious consequences Mr. Muratoski would face if he did not appear for his hearing in Chicago, yet he did absolutely nothing to protect his client.

Respondent's argument that he did not know he was the attorney of record in Mr. Muratoski's immigration matter was not credible. Respondent received numerous documents from the Immigration Court in Boston, the Immigration Court in Chicago and opposing counsel, which all indicated that he was the attorney of record in Mr. Muratoski's immigration matter. Respondent's contention that he thought his appearance in Mr. Muratoski's immigration matter was denied because both motions to change venue he filed on behalf of Mr. Muratoski were denied has no merit.

We find Respondent did not engage in the following misconduct:

  1. withdrawing from employment in a proceeding before a tribunal without permission of the tribunal, in violation of Rule 1.16(c) of the Illinois Rules of Professional Conduct; and

  2. withdrawing from employment prior to taking reasonable steps to avoid foreseeable prejudice to the rights of the client, in violation of Rule 1.16(d) of the Illinois Rules of Professional Conduct.

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Respondent did not even attempt to withdraw from Mr. Muratoski's immigration case. Therefore we do not find that he withdrew from the case incorrectly.

RECOMMENDATION

The purpose of this disciplinary system is to protect the public, maintain the integrity of the legal system, and safeguard the administration of justice. In re Gorecki, 208 Ill.2d 350, 360, 802 N.E.2d 1194 (2003); see also In re Howard, 188 Ill.2d 423, 434, 721 N.E.2d 1126 (1999). The goal is not to punish the attorney. In re Smith, 168 Ill.2d 269, 295, 659 N.E.2d 896 (1995). In determining the proper sanction, we consider the misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526 (1991).

Respondent's misconduct is mitigated by the fact that he has not been previously disciplined. See In re Lenz, 108 Ill.2d 445, 453-4, 484 N.E.2d 1093 (1985) (lack of prior discipline is a mitigating factor). Respondent did not present any character witnesses or any evidence about any community service or pro bono work he is engaged in.

Respondent's misconduct is aggravated by the harm he caused to Jeffery Carpenter and Mr. Muratoski. See In re Samuels, 126 Ill.2d 509, 529-30, 535 N.E.2d 808, 817 (1989). Jeffery was unaware of the default proceedings in his divorce case and lost his opportunity to have his day in court and negotiate more favorable terms once the judgment for dissolution was entered. Jeffery also had to hire another attorney to attempt to vacate the judgment, which was not successful. Mr. Muratoski is still in the process of appealing his removal which has cost him additional funds and he may have lost his ability to stay in the United States.

Respondent's lack of remorse for and understanding of the wrongfulness of his actions are also significant aggravating factors. In re Lewis, 138 Ill.2d 310, 347-8, 562 N.E.2d 198 (1990). Respondent attempted to rationalize and excuse his neglect of both cases and did not

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take any responsibility for the harm he caused Jeffery and Mr. Muratoski by failing to withdraw from their matters. Respondent blamed his clients for not communicating with him and not being aware of how their cases were proceeding instead of recognizing that he had a duty to keep his clients informed about their cases while he was the attorney of record.

Having considered the aggravating and mitigating factors, we now must recommend an appropriate sanction. The Administrator recommends Respondent be suspended for three months. The Administrator cited the following cases in support of his RECOMMENDATION: In re Berkos, 93 Ill.2d 408, 444 N.E.2d 150 (1982); In re Ring, 141 Ill.2d 128, 565 N.E.2d 983 (1990); In re Bertuca, 98 CH 120, M.R. 17200 (January 19, 2001); In re Levin, 77 Ill.2d 205, 395 N.E.2d 1374 (1979); In re Harth, 135 Ill.2d 281, 531 N.E.2d 361 (1988); In re Thoren, 05 CH 33, M.R. 2199 (January 12, 2007). Respondent recommends a finding of no misconduct based on his argument that the Administrator did not meet his burden of proving the alleged misconduct by clear and convincing evidence.

We agree with the Administrator that Respondent's misconduct warrants a three month suspension and additionally conclude Respondent should be required to attend the ARDC Professional Responsibility Institute. We find the following cases instructive in determining the proper recommendation for discipline in this case.

The attorney in In re Bertuca, 98 CH 120, neglected two separate client matters and made misrepresentations to both clients about the status of their matters. Both clients' claims were time-barred because of the attorney's failure to file the appropriate pleadings. Similarly to Respondent, the attorney in Bertuca did not display any recognition for the wrongfulness of his conduct and attempted to shift the blame to others. Additionally, the attorney in Bertuca, like Respondent, failed to provide any real mitigating evidence. The Review Board stated that,

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"while he has not been disciplined previously and was not uncooperative in the disciplinary proceedings, Bertuca did not present any character testimony or any evidence of pro bono legal work or charitable activities." (Review Bd. Dec. at 6). The Supreme Court approved the ninety day suspension recommended by the Hearing Board and Review Board in Bertuca.

The attorney in In re Berkos, 93 Ill.2d 408, was suspended for three months for failing to withdraw from a criminal appeal, which resulted in the dismissal of the appeal for want of prosecution. The misconduct of the attorney in Berkos is similar to Respondent's failure to withdraw from Jeffery and Mr. Muratoski's matters which resulted in Jeffery's divorce case proceeding by default and Mr. Muratoski being ordered removed from the United States. Typically the neglect of a criminal case warrants a more severe sanction than neglect of a civil case, but the attorney in Berkos had significant evidence in mitigation, which is not present in this case. See In re Weinberg, 119 Ill.2d 309, 315, 518 N.E.2d 1037 (1988). Additionally, Respondent failed to withdraw from two separate client matters whereas the attorney in Berkos only failed to withdraw from one client matter.

The attorney in In re Cohen was suspended for 90 days for neglecting the cases of two clients, one criminal matter and one immigration matter, failing to return unearned fees to his clients and failing to respond to the ARDC's request for information. Similarly to Respondent, the attorney in Cohen failed to present any significant evidence in mitigation and his misconduct was aggravated by the harm he caused to his clients including the deportation of the client whose immigration matter he was handling. The Hearing Board stated that the attorney's misconduct showed "an unwillingness to meet the high standards of the legal profession." (Hearing Bd. Dec at 13).

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Respondent neglected two client matters by failing to withdraw from his clients cases, caused harm to his clients, blamed his clients for not communicating with him and failed to demonstrate any remorse or understanding of the gravity of his actions. Respondent did not present any significant mitigating evidence. Respondent also characterized his actions as the mere errors of an inexperienced attorney when in fact he had been practicing for 10 years at the time the misconduct took place. In sum, Respondent failed to show the panel that he understands his duties and responsibilities under the Illinois Rules of Professional Conduct.

Considering the nature of the Respondent's misconduct, the evidence in aggravation and the lack of any significant evidence in mitigation, this Panel recommends Respondent be suspended for three months and until he completes the ARDC Professional Responsibility Institute.

Date Entered: January 9, 2009

Mary Pat Benz, Chair, with Tiffany M. Ferguson and Cheryl M. Kneubuehl concurring.