Filed January 7, 2010

In re James H. Himmel
Respondent-Appellee

Commission No. 08 CH 17

Synopsis of Review Board Report and Recommendation
(January 2010)

The Administrator-Appellant filed a one-count complaint against the Respondent-Appellee James M. Himmel, charging him with misconduct related to his neglect of a civil case and misrepresentations to his client concerning it. The complaint alleged that Respondent failed to provide competent representation in representing a client, in violation of Rule 1.1 of the Illinois Rules of Professional Conduct; failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3; failed to keep a client reasonably informed as to the status of a matter, in violation of Rule 1.4(a); engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaged in conduct that tended to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.

The Respondent admitted most of the factual allegations of the complaint but denied some of them. He denied all of the allegations of misconduct.

The Hearing Board found that there was clear and convincing evidence that the Respondent committed all of the charged misconduct, except that he did not fail to provide competent representation and did not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. It recommended that the Respondent be censured.

The case was before the Review Board on the exceptions of the Administrator. He objected to the Hearing Board's finding that a violation of Rule 8.4(a)(4) had not been not sufficiently proved, and to its recommended sanction, arguing that the Respondent should be suspended for thirty days. The Respondent did not appear in these proceedings.

The Review Board affirmed the Hearing Board's findings of misconduct and concluded that in addition, the Respondent had engaged in dishonest conduct, in violation of Rule 8.4(a)(4). It recommended that the Respondent be suspended for thirty days.

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

In the Matter of:

JAMES H. HIMMEL,

Respondent-Appellee,

No. 1219979.

Commission No. 08 CH 17

REPORT AND RECOMMENDATION OF THE REVIEW BOARD

The Administrator-Appellant filed a one-count complaint against the Respondent-Appellee James M. Himmel, charging him with misconduct related to his neglect of a civil case and misrepresentations to his client concerning it. The complaint alleged that the Respondent failed to provide competent representation in representing a client, in violation of Rule 1.1 of the Illinois Rules of Professional Conduct; failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3; failed to keep a client reasonably informed as to the status of a matter, in violation of Rule 1.4(a); engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4); engaged in conduct prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and engaged in conduct tending to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. The Respondent admitted most of the factual allegations of the complaint, but denied some of them. He denied all of the allegations of misconduct.

The Hearing Board found that the Administrator had proved by clear and convincing evidence that the Respondent committed all of the charged misconduct, except that he did not fail to provide competent representation and did not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. After consideration of all the circumstances,

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including the Respondent's prior discipline, the Hearing Board recommended that he be censured.

The case is now before the Review Board on exceptions filed by the Administrator, who argues that the Hearing Board erred in failing to find that the Respondent violated Rule 8.4(a)(4). The Administrator also objects to the Hearing Board's recommended sanction, arguing that the Respondent should be suspended for thirty days instead. The Respondent has not filed a brief on review.

FACTS

In April 2003, the Respondent agreed to represent Charles Mager and his wife, who had issues with the builder of their home, David Saenz, regarding certain deficiencies in the home's construction. The Respondent wrote Saenz a letter on April 23, 2003, advising him that if the problems were not corrected in the next seven days, the Respondent was authorized to begin legal proceedings against him for breach of warranty.

The Respondent's letter elicited no response. The Respondent told Mager it was his opinion that the only way to "get Saenz's attention" would be to file the lawsuit. He and Mager agreed to a fee of $1,500, plus $200 per hour for litigation. On or about June 9, 2003, Mager sent the Respondent a check for $1,500.

The Respondent never filed the complaint.

On October 24, 2004, Mager wrote the Respondent a letter asking about the status of the proceedings against Saenz. He had not communicated with the Respondent since June of 2003 because he was busy with his new home. He assumed that "when you hire an attorney, he will do what you hire him to do." The Respondent received the letter but did not respond to

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Mager's request for information. Mager therefore telephoned the Respondent the following month.

According to Mager, the Respondent informed him that the Will County Sheriff had not done his job, because he either could not or would not serve Saenz. Mager testified that the Respondent confirmed that Mager had given him the correct address for service and advised his client to be patient, saying something to the effect that "the wheels of justice turn slowly." Mager assumed that the lawsuit against Saenz had been filed.

The Respondent acknowledged that Mager had called him about the status of the case, but he denied making either statement.

On or about March 15, 2006, Mager telephoned the Respondent again to request an update on the status of the case. The Respondent advised him that he had taken no action concerning the matter. According to Mager, the Respondent explained that he had been waiting for Mager to provide him with information. Mager did not remember being asked for any further information.

The Respondent agreed to check his file and get back to his client. When Mager did not hear from him by the next day, he wrote the Respondent a letter outlining the conversations the two of them had had since June 2003 and providing an update on the condition of the house. The letter made reference to the Respondent's comments in 2004 about the Sheriff's failure to serve Saenz, and the slow-turning wheels of justice.

When the Respondent did not respond to Mager's letter, Mager wrote him again on March 31, 2006, enclosing estimates for one of the repairs that still needed to be done. Mager wrote again on August 15, 2006, enclosing receipts for work that had been completed. He wrote the Respondent on November 18, 2006, March 14, 2007, June 29, 2007 and August 20,

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2007. All of his letters requested an update on the breach of warranty case. The Respondent admitted that he received the letters, but he did not respond to any of Mager's requests for information. The Respondent admitted that "[a] lot of his letters, [the Respondent] never even opened." The Respondent thought that he probably threw them on his desk, where they got covered by other papers.

On September 25, 2007, Mager wrote the ARDC. He learned from counsel for the Administrator that the lawsuit had never been filed.

The Magers purchased their home on October 5, 2000. 735 ILCS 13-214 provides that a lawsuit for damages resulting from construction defects must be filed within four years from the date that the cause of action accrued or was discovered. Therefore, the Magers' claim for damages against Saenz became time-barred on October 5, 2004.

ANALYSIS

The Hearing Board determined that there was not sufficient evidence that the Respondent engaged in misrepresentation because there was no proof that Respondent told Mager that he filed the complaint and because even if the Respondent made the alleged statements, there was no evidence that Mager believed the complaint was filed because of the alleged statements. The Administrator first argues that the Hearing Board's finding that there was not sufficient proof that the Respondent violated Rule 8.4(a)(4) was against the manifest weight of the evidence and contrary to law.

Our review focuses on the latter argument. We review the Hearing Board's legal conclusions de novo. In re Discipio, 163 Ill.2d 515, 527, 645 N.E.2d 906, 206 Ill. Dec. 654 (1994).

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Mager's breach of warranty action became time-barred on October 5, 2004. Despite having spoken to his client at least once after that date, the Respondent did not inform Mager until March 2006 that he had taken no action concerning his case. The Respondent never informed his client that he lost his cause of action as a result. Mager did not become aware of the consequences of the Respondent's neglect until counsel for the Administrator told him in September 2007.

Failure to keep a client informed of such an important matter has been found to be dishonest conduct by omission. In In re Ring, 141 Ill.2d 128, 565 N.E.2d 983, 152 Ill. Dec. 301 (1990), the respondent agreed to represent John Boyce on appeal, after Boyce was convicted of criminal charges related to disposal of hazardous waste and sentenced to three years imprisonment. He never filed an appellate brief and the case was dismissed on April 2, 1987. Ring met with his client nineteen days later. Although Boyce previously had made several inquiries about the status of his case, Ring did not inform him that the appeal had been dismissed. Boyce learned of the dismissal two months later, when a friend called the appellate court.

Noting that Boyce understandably believed that his appeal was still pending, due to the respondent's silence on this issue at the time of their meeting, the court commented that:

characterizing respondent's conduct in these respects as a simple failure to properly communicate with a client belittles the importance of effective communication between an attorney and his client. When a client places his or her trust in an attorney to pursue a legal matter on the client's behalf, it is essential that the attorney keep the client reasonably informed about the progress and status of the matter. In this way, the client can make an intelligent decision to proceed further with the matter, to terminate pursuit of the matter, or to exercise some other option such as seeking the advice of other counsel.

Id., 141 Ill.2d at 141, 565 N.E.2d 983, 152 Ill. Dec. 301.

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As to the charge that Ring had engaged in conduct involving dishonesty, deceit or misrepresentation, the court found that he had, in that:

respondent's lack of candor with Boyce, particularly with respect to respondent's admitted failure to inform Boyce that respondent was not going to file a brief on Boyce's behalf, and respondent's admitted failure to disclose to Boyce at the April 21 meeting that the appeal had been dismissed, when respondent was admittedly aware, at that time,that the appeal had been dismissed or soon would be dismissed, amounted to conduct involving dishonesty, deceit or misrepresentation.

Id., 141 Ill.2d at 143, 565 N.E.2d 983, 152 Ill. Dec. 301.

More recently, in In re Ducey, 03 SH 123 (Review Board, January 21, 2009), approved and confirmed, No. M.R. 23053 (May 18, 2009), the respondent was charged with misconduct which related in part to his representation of Gerard Nestor, conservator of the estate of Tammy Porter. Nestor was one of many plaintiffs in a complaint Ducey filed in Cook County against several individuals who had absconded with structured settlement funds, including Porter's. On January 10, 2002, after Nestor learned that Ducey had previously represented the main defendant, he wrote a letter discharging him.

The father of a second plaintiff in the Cook County litigation, Melanie Cullen, also discharged the respondent on or about March 5, 2002. The lawyer hired to replace him sent Ducey a letter a week later, asking for the case file.

Ducey did not withdraw as the attorney for either client, and did not respond to the letter from Cullen's new attorney. In April 2002, he filed an amended complaint in the Cook County case that named both Nestor and Cullen as plaintiffs. Two months later, he filed a second lawsuit pertaining to the structured settlement funds in Madison County, which also included Nestor and Cullen as plaintiffs.

Ducey did not inform either of his former clients of either complaint. The Hearing Board found that his failure to do so was dishonest and deceitful. In addressing the

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respondent's objection to that finding as to Nestor, the Review Board cited Ring, supra, in concluding that "an attorney has an obligation not only to respond truthfully to a client's inquiries, but to disclose information about the status of the case." In re Ducey, id., 03 SH 123 (Review Board, January 21, 2009), approved and confirmed, No. M.R. 23053 (May 18, 2009) at 17. In keeping from his client the fact that he had filed complaints on behalf of Porter's estate after he had been discharged, Ducey acted dishonestly.

Similarly, the Respondent in this case had an obligation not only to respond to Mager's requests for information, but an additional obligation to disclose that the time during which he could pursue his claim against Saenz had expired without the case being filed. We conclude, on the basis of Ring and Ducey, supra, that the Respondent's failure to do so was dishonest by omission and violated Rule 8.4(a)(4).

SANCTION

Concerning the appropriate sanction, the Hearing Board has recommended that the Respondent be censured; but that recommendation is advisory only. In re Hopper, 85 Ill.2d 318, 325, 423 N.E.2d 900, 53 Ill. Dec. 231 (1981). The Review Board must consider the case based on its own particular facts and circumstances; and consider that the purpose of discipline is not to punish the individual respondent, but to protect the public and to maintain the integrity of the profession. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993).

Aggravating and mitigating factors are also relevant. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991). The Respondent presented significant mitigation in this case.

Since approximately 1982, the Respondent has been involved with the Park Lawn Association, which provides housing, education, workshops and supportive employment for

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developmentally disabled individuals. He has served on their Human Rights Committee since that time and since 1992, has been on the board of their association. At the time of the hearing, he was president of the corporation and president of the school board that ran its programs. The Respondent has also served on the Flossmoor Library Board for twelve years. He served as president for the last five of those years. He is past president and current financial secretary of the Beverly Lions Club, has served on the board of his temple and was a scout leader and little league coach when his children were younger.

The Respondent admitted that he had neglected Mager's case and expressed remorse. While he had no explanation for his neglect, he has taken steps to insure that it would not happen again. His efforts to correct his earlier problems are a positive factor. In re Kink, 92 Ill.2d 293, 442 N.E.2d 206, 65 Ill. Dec. 895 (1982).

An attorney who has known the Respondent since 1978 testified to his honesty and reputation. The Respondent was a member of several bar associations at one time and a few days after his hearing, was scheduled to participate in a seminar for the Chicago Bar Association concerning his prior disciplinary case.

The Hearing Board found in aggravation that as a result of the Respondent's misconduct, his client's cause of action became time-barred. In addition to financial harm, Mager also testified to a distrust of the legal profession. We also consider the needless anxiety Mager suffered when he was unable to obtain information from the Respondent about the status of his case, as well as the Respondent's cavalier treatment of Mr. Mager's many attempts to learn that status, to be serious aggravating factors.

The Respondent has one instance of prior misconduct. In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790, 127 Ill. Dec. 708 (1988). Prior discipline is usually considered to be a

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factor in aggravation and typically results in a more severe sanction than might otherwise be imposed. See In re Blank, 145 Ill. 2d 534, 554-55, 585 N.E.2d 105, 165 Ill. Dec. 709 (1991). The similarity of the prior misconduct and the period of time between it and the current misconduct are important elements in determining the weight it should be given, however. In re Levin, 101 Ill.2d 535, 463 N.E.2d 715, 79 Ill. Dec. 161 (1984); In re Weitzman, 93 CH 511, (Review Board, October 13, 1995), approved and confirmed, No. M.R. 12217 (March 26, 1996). The Review Board has concluded on previous occasions that dissimilarity of circumstances and a lengthy period of time since the first incident occurred diminish the prior misconduct's relevance as aggravation. E.g., In re Marsh, 96 CH 632 (Review Board, October 29, 1998), Administrator's petition for leave to file exceptions denied; Review Board approved and confirmed, No. M.R. 15445 (February 1, 1999); In re Hays, 05 SH 3, (Review Board, June 6, 2006), Administrator's petition for leave to file exceptions denied, No. M.R. 21050 (September 21, 2006). The Respondent's prior misconduct occurred twenty-two years ago and involved very different circumstances. Therefore, we give it minimal consideration as an aggravating factor.

We have examined the cases cited by the Hearing Board and by the Administrator, and find one in particular that provides guidance. In In re Isaacson, 07 CH 48, petition for discipline on consent allowed, No. M.R. 22090 (January 23, 2008), the respondent failed to file a complaint in a personal injury case and his client's claim became time-barred. Over a thirteen-month period, he failed to return numerous calls from his client, requesting information as to the status of his case. The respondent's consent petition suggested no mitigation except his lack of prior discipline in eighteen years of practice. In aggravation, it noted that he had not participated in his disciplinary case until after the allegations of the complaint had been deemed admitted, due to his failure to file an answer to the complaint or a

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list or witnesses, or to respond to the Administrator's request for documents. Isaacson was suspended for thirty days.

We have also considered the cases of In re Moran, 03 CH 9 (Review Board, April 6, 2005), approved and confirmed, No. M.R. 20242 (September 26, 2005), and In re Schildman, 97 SH 117, petition for discipline on consent allowed, No. M.R. 15013 (September 25, 1998). In the former, Moran was assigned by his law firm to represent a client in connection with potential claims arising out of the refinancing of the client's mortgage. When attempts to resolve the matter without litigation were unsuccessful, he advised his client that he would file a lawsuit on his client's behalf. Moran began drafting a complaint, but took no further action concerning the case. Moran made several misrepresentations to his client concerning the matter, including that an order of default had been obtained. He also prepared a false complaint and default order with a fictitious case number and forged file-stamps on them, which he placed in the firm's file. There were several mitigating factors, including that Moran was a young and inexperienced attorney. He was suspended for thirty days and until he completed a professional responsibility seminar.

In In re Schildman, id., the respondent agreed to represent a client in a malpractice action against her dentist. Although he had his client sign the complaint, Schildman never filed it, and her cause of action became time barred. On at least one occasion, he told his client that her case was in the process of being settled, although no settlement negotiations ever took place. Schildman had been in practice for almost thirty years and had no prior misconduct. He was suspended for thirty days.

Finally, in reaching our recommendation, we have also taken into account that it is important to recognize the deterrent value of a sanction and the need to impress upon others

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the seriousness of the misconduct at issue. In re Imming, 131 Ill.2d 239, 261, 545 N.E.2d 715, 137 Ill. Dec. 62 (1989). We wish to make it clear that neglecting a case to the point that the statute of limitations expires, and then failing to disclose to the client that his claim has become time-barred, is conduct that is not mere negligence and such conduct is a deceitful omission. In re Ring, supra, 141 Ill.2d at 143, 565 N.E.2d 983, 152 Ill. Dec. 301

After consideration of all the circumstances, we affirm the Hearing Board's findings of misconduct and additionally conclude that the Respondent engaged in conduct involving dishonesty and misrepresentation, in violation of Rule 8.4(a)(4). We recommend that the Respondent, James M. Himmel, be suspended from the practice of law for thirty days.

Date Entered: 7 January 2010

Respectfully Submitted,

Bruce J. Meachum
David F. Rolewick
Thomas A. Zimmerman, Jr.