Filed March 17, 2009

In re James H. Himmel
Commission No. 08 CH 17

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) failing to provide competent representation in representing a client; 2) failing to act with reasonable diligence and promptness in representing a client; 3) failing to keep a client reasonably informed as to the status of a matter; 4) engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; 5) engaging in conduct which is prejudicial to the administration of justice; and 6) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute.

RULES DISCUSSED: 1.1, 1.3, 1.4(a), 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION: Censure.

DATE OF OPINION: March 17, 2009.

HEARING PANEL: Stephen S. Mitchell, Chair, Nam H. Paik and William E. Gabbard.

RESPONDENT'S COUNSEL: Mitchell Ex.

ADMINISTRATOR'S COUNSEL: Cass R. Buscher.

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

In the Matter of:

JAMES H. HIMMEL,

Attorney-Respondent,

No. 1219979.

Commission No. 08 CH 17

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on November 10, 2008 at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC"), before a Hearing Board Panel consisting of Stephen S. Mitchell, Chair, Nam H. Paik, and William E. Gabbard. The Administrator was represented by Cass R. Buscher. Respondent appeared in person and was represented by Mitchell Ex.

PLEADINGS

On March 18, 2008, the Administrator filed a one-count complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleges that Respondent neglected a lawsuit and made misrepresentations to his client. On May 8, 2008, Respondent filed an Answer to Complaint in which Respondent admitted most of the factual allegations and denied some factual allegations. Respondent denied all allegations of misconduct.

THE EVIDENCE

The Administrator presented the testimony of Charles Mager. The Administrator submitted twelve documentary exhibits. Respondent testified on his own behalf. Respondent submitted four exhibits. Respondent presented the character witness testimony of Joseph

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Rejowski.

On October 5, 2000, Charles and Gloria Mager ("the Magers") purchased a home located at 2966 Sharon Drive, New Lenox, Illinois from Daniel Saenz ("Saenz"). Within a week of purchasing the home, the Magers noticed several defects and began contacting Saenz to correct the problems. On April 24, 2002, the Magers directed their attorney, Albin J. Sporny, III ("Sporny"), to send a detailed letter to Saenz listing the remaining defects. On April 24, 2002, Sporny sent a letter to Saenz pursuant to the Magers' request. (Adm. Ex. 2; Tr. 12-13).

On November 5, 2002, Sporny, who was unable to resolve the issue between Saenz and the Magers, referred the Magers to Respondent to represent them if litigation was necessary. In April 2003, Respondent agreed to represent the Magers in their dispute against Saenz. On April 29, 2003, Respondent wrote a letter on the Magers' behalf to Saenz regarding the house defects. On June 9, 2003, Charles Mager paid Respondent a $1,500 retainer to pursue a lawsuit against Saenz and agreed to pay Respondent an hourly fee for his services. (Adm. Ex. 1, 3; Resp. Ex. 1; Tr. 14-16).

At all relevant times, 735 ILCS 5/13-206 provided that a suit claiming damages for construction defects claims had to be initiated within four years after the cause of action accrued or was discovered. Therefore, Respondent was required to file a claim on behalf of the Magers on or before October 5, 2004. Respondent did not file a complaint on behalf of the Magers against Saenz relating to the defects in the Magers' home by October 5, 2004. As a result, the Magers' construction defect claim became time-barred. Respondent did not inform the Magers that the statute of limitations passed and that their claim had become time-barred. Mr. Mager testified that Respondent never told him that he had filed a lawsuit against Saenz. Mr. Mager also testified that Respondent never told him that he had given any papers to the sheriff. (Resp.

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Ans. p. 2; Tr. 39).

On October 24, 2004, Charles Mager sent Respondent a letter requesting the status of the lawsuit against Saenz. Respondent received the letter shortly thereafter, but did not respond to Mr. Mager request for information. In November 2004, Charles Mager telephoned Respondent regarding the status of the Magers' claim against Saenz. During that telephone conversation, Mr. Mager testified that Respondent advised Mr. Mager that "the Will County Sheriff was not doing his job and had not served Saenz." He testified further that Respondent advised Mr. Mager "to be patient because the wheels of justice turn slowly." Respondent denies that he made those statements to Mr. Mager. Respondent stated that the suit had not been filed and he had not gotten any estimates for the cost of the repairs. Respondent stated that it is his practice to draft complaints and send them to clients for their signatures. Respondent stated that he does not sign complaints on behalf of clients. (Adm. Ex. 4; Tr. 18, 54).

Between November 2004 and March 2006, Charles Mager believed that Respondent was pursuing the lawsuit against Saenz. On March 15, 2006, Mr. Mager telephoned Respondent regarding the status of the Magers' claim against Saenz. During that telephone conversation, Respondent advised Mr. Mager that he "had taken no action in the matter because he was waiting for information from Charles." Mr. Mager stated that before March 15, 2006, Respondent had not requested that the Magers provide him any information before proceeding with their claim against Saenz. (Tr. 18-19).

On March 16, 2006, Mr. Mager sent Respondent a letter memorializing their March 15, 2006 conversation as well as referencing the November 2004 telephone conversation. Respondent received the letter shortly thereafter but did not respond. Between March 31, 2006 and August 20, 2007, Mr. Mager sent Respondent six letters requesting information regarding

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the Magers' claim. Respondent received each of the letters, however, he did not respond. (Adm. Ex. 5, 6,7,8,9,10,11; Tr. 19-28).

On September 25, 2007, Mr. Mager sent a letter to the ARDC regarding Respondent's representation in his matter. Mr. Mager learned from counsel for the Administrator that Respondent did not file a lawsuit against Saenz on behalf of Mr. Mager. Mr. Mager stated that in Fall 2008, he received a refund of the $1,500 retainer fee that he paid Respondent. (Adm. Ex. 1; Tr. 29-30).

Evidence Offered in Aggravation

Charles Mager

Charles Mager stated that he had to repair the home defects himself as well as hire someone to complete the repairs. Mr. Mager stated that the repairs cost approximately $8,000. Mr. Mager stated that he attempted to contact an attorney to file suit against Respondent but has not been able to find someone. Mr. Mager stated that Respondent's conduct has tainted his faith in attorneys. (Tr. 30-32).

Prior Discipline

On September 22, 1988, the Illinois Supreme Court suspended Respondent for one year when Respondent failed to report the misconduct of another attorney. In re Himmel, 125 Ill. 2d 531, 533 N.E.2d 790 (1988).

Respondent offered testimony regarding his prior discipline. Respondent stated that he did not report the misconduct of the other attorney because at the time, the rule requiring him to report the attorney was not in existence. Respondent stated that his prior misconduct did not involve neglect. (Tr. 59-67).

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Evidence Offered in Mitigation

Respondent

Respondent was admitted to the Illinois bar in 1975. Respondent has been a solo practitioner concentrating in civil litigation. Respondent serves as an arbitrator with the Cook County Mandatory Arbitration. Respondent serves on the board of the Park Lawn Association (an association that provides housing, education, a workshop and supportive employment for individuals with developmentally disabled disabilities.) Respondent is a member of the Illinois Bar Association, the American Bar Association, the Chicago Bar Association and Commercial Law Legal America. Respondent served on the Flossmoor library board for twelve years. Respondent has served on his Temple board and Lyon's Board. Respondent has been active in little league and boys' scouts. (Tr. 48-49, 67-69).

Respondent admits that he did not perform any legal services on behalf of the Magers. Respondent admitted that he received letters from Mr. Mager which he did not open. Respondent stated that when he received notification from the ARDC, he responded to the letter and sent a check to Mr. Mager for $1,500 with a copy of his professional liability insurance. Respondent stated that he never lied to Mr. Mager. Respondent takes responsibility for his actions. Respondent stated that he now has procedures in his office to keep track of files. Respondent expressed remorse. (Resp. Ex. 2, 3; Tr. 56, 70-72, 75).

Joseph Rejowski

Joseph Rejowski is a licensed attorney since 1978. Mr. Rejowski is a sole practitioner concentrating in divorce. Mr. Rejowski has known Respondent since 1978. Respondent and Mr. Rejowski enjoy a professional relationship. Mr. Rejowski stated that he is familiar with Respondent reputation in the legal community for truthfulness and veracity. Mr. Rejowski stated

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that people in the community have a very high opinion of Respondent's honesty and his reputation. (Tr. 79-81).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must prove the alleged 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 the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh 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, 308 (1993). With the above principles in mind and after careful consideration of the testimony, exhibits and Respondent's admissions, we make the following findings:

In the Complaint, Respondent is charged with:

  1. Failure to provide competent representation in representing a client in violation of Rule 1.1 of the Illinois Rules of Professional Conduct;

  2. 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;

  3. Failure to keep a client reasonably informed as to the status of a matter in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

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

  5. Engaging in conduct which is prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

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

We find that the Administrator failed to meet his burden of proof by clear and convincing evidence that Respondent failed to provide competent representation in representing the Magers.

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However, it is clear from the evidence that Respondent neglected the Magers' case. Based on Respondent's testimony, he is an experienced and knowledgeable attorney. Further, there was no evidence presented disputing Respondent's competency. We find that Respondent failed to represent the Magers because he neglected their case and allowed the statute of limitations to expire without proper representation. We find that Respondent's neglect does not rise to the level of incompetency. We find that Respondent's failure to diligently represent the Magers was not caused by incompetency. Therefore, we find that the allegation that Respondent violated Rule 1.1 of the Illinois Rules of Professional Conduct be dismissed.

Based on the evidence and Respondent's admissions, we find by clear and convincing evidence that Respondent failed to act with reasonable diligence and promptness in representing the Magers in violation of Rule 1.3 of the Illinois Rules of Professional Conduct. Respondent admitted that he failed to perform any legal services on behalf of the Magers. Respondent failed to open and review correspondence between himself and the Magers. Respondent admitted that he failed to respond to the Magers' many requests for information. Respondent admitted that he allowed the statute of limitations pass on the Magers' claim without diligent representation. We also find by clear and convincing evidence that Respondent failed to keep the Magers reasonably informed as to the status of their matter. Therefore, we find that Respondent violated Rules 1.3 and 1.4(a) of the Illinois Rules of Professional Conduct.

We find that the Administrator failed to meet his burden of proof by clear and convincing evidence that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. The evidence shows that Mr. Mager believed that Respondent had filed a lawsuit on his behalf. We believe that Mr. Mager believed that a lawsuit was filed. Mr. Mager stated that Respondent told him that the "Will County Sheriff was not doing his job and had not

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served the defendant." He also stated that Respondent told him that he had to "be patient because the wheels of justice turn slowly." Mr. Mager did not state that he believed his complaint was filed based on these statements. Therefore, based on the way the allegation of misrepresentation is written and the evidence failing to show that Respondent actually told Mr. Mager that he filed a complaint of his behalf, we find that the evidence is insufficient to prove that Respondent engaged in misrepresentation. Further, we recommend that the allegation that Respondent violated Rule 8.4(a)(5) of the Illinois Rules of Professional Responsibility be dismissed.

Based on Respondent's admitted misconduct and the evidence adduced at Hearing, it follows that we find that by clear and convincing evidence that Respondent engaged in conduct which is prejudicial to the administration of justice and brings the legal profession into disrepute. Therefore, we find that Respondent violated Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION

The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434, 721 N.E.2d 1126 (1999). We should not recommend a sanction which will benefit neither the public nor the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991).

The Administrator recommends that Respondent be suspended from the practice of law for 30 days. In support of his recommendation, the Administrator offered the following case: In re McGinnis, 94 CH 836, M.R. 10782 (March 27, 1995), (attorney suspended for 30 days for

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neglecting one client matter and misrepresentation); In re Fawell, 06 CH 46, M.R. 21692 (September 18, 2007), (attorney suspended for 30 days for neglecting a criminal appeal and failing to inform his client of the appeal dismissal for two years) and In re Isaacson, 07 CH 48, M.R. 22090, January 23, 2008, (attorney suspended for 30 days for neglecting one client matter which became time-barred).

Respondent recommends censure. Respondent stated that a suspension would be punishing. While every case is unique, based on the proven misconduct, we find the following cases to be instructive in determining the proper recommendation for a sanction:

In In re Winn, 103 Ill. 2d 334, 469 N.E.2d 198 (1984), the attorney was negligent in representing clients in two personal injury cases, resulting in the dismissal of the cases. In addition, he made false statements to his clients about the status of the cases. In mitigation, the attorney had no corrupt motive, he had done pro bono work, and three judges testified as character witnesses on his behalf. In imposing a censure, the Supreme Court stated that the purposes of safeguarding the public and maintaining the integrity of the legal profession would not be served by suspending the attorney. Id. 103 Ill. 2d at 337-38, 469 N.E.2d at 200.

In In re Kink, 92 Ill. 2d 293, 442 N.E.2d 2006 (1982), the respondent neglected matters for three clients; he was less than candid with one client and remained inaccessible despite attempts by clients to contact him. The respondent was cooperative and candid during the disciplinary proceedings, had an outstanding record of involvement in civic and religious programs, and a number of witnesses testified as to his excellent reputation in the community. In imposing a censure, the Supreme Court stated that the Hearing Board had determined that it was unlikely that events of that kind would happen again and that neither the purpose of safeguarding the public nor the purpose of maintaining the integrity of the legal profession would be served by

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suspending the respondent. Id. 92 Ill. 2d at 302-05, 442 N.E.2d at 209-11.

Similarly, in In re Tannen, 04 CH 45, M.R. 19879 (January 14, 2005), an attorney was censured for misconduct involving the neglect of a personal injury claim and misrepresentations to the client about the matter. And in In re McConnell, 98 CH 130, M.R. 15909, (September 29, 1999), an attorney was censured for neglecting a civil case and making false representations to his client's agent concerning the status of the case.

Given the proven misconduct, we must consider any evidence offered in aggravation and mitigation. In aggravation, Mr. Mager's case was time barred and he is denied the opportunity to plead his case in a court of law. Mr. Mager also suffered financial harm as well as a newfound distrust in the legal profession. We also considered Respondent's prior discipline from 1988. While Respondent received a significant sanction for his misconduct, we note that the misconduct occurred over 20 years ago and involved very different misconduct.

In mitigation, Respondent has admitted misconduct and expressed remorse. Respondent has cooperated throughout these proceedings. Respondent offered character witness testimony as well as evidence of significant community involvement. Respondent has returned all unearned fees to the Magers. Further, Respondent has testified to his improved business practices to ensure that this incident is not repeated. Based on the foregoing, we recommend that Respondent be censured.

Date Entered: March 17, 2009

Stephen S. Mitchell, Chair, Nan Hung Paik and William E. Gabbard