Filed September 1, 2010
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
ERNEST THOMAS ROSSIELLO,
Commission No. 08 CH 112
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on December 17, 2009, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Hearing Board Panel consisting of Debra J. Braselton, Chair, Donna L. Otis formerly Moore, and Cheryl M. Kneubuehl. Tracy L. Kepler appeared on behalf of the Administrator of the ARDC. Respondent appeared and was represented by George B. Collins and Theresa M. Gronkiewicz.
On November 5, 2008, the Administrator filed a one-count Complaint pursuant to Supreme Court Rule 753(b). The Administrator alleged Respondent engaged in the unauthorized practice of law by practicing law while his license was suspended based on a prior disciplinary action. Respondent filed an Answer to the Complaint, admitting most of the factual allegations, denying some of the factual allegations, and denying all allegations of misconduct.
The Administrator presented the testimony of two witnesses, including Respondent, and Administrator's exhibits 1 through 9 were admitted into evidence. Respondent testified on his
own behalf, presented two witnesses, and Respondent's exhibits 1 through 5, which were admitted into evidence.
On January 23, 2008, in the matter entitled In re Ernest Thomas Rossiello, 03 CH 33, M.R. 21894, the Illinois Supreme Court entered an order suspending Respondent from the practice of law for four months, effective February 13, 2008. (Adm. Ex. 1). Respondent became aware of the Court's order shortly after it was entered. In January 2008, Respondent hired Erica Longfield as an associate to assist him in handling the day to day operations of his law practice during his suspension. Her duties included making court appearances, communicating with clients and opposing counsel, and drafting and filing pleadings. Longfield was 27 year old, graduated from John Marshall Law School in 2007, and was admitted to practice law in November 2007. Between February 13, 2008, and April 10, 2008, Longfield was the only licensed attorney employed by Respondent's law firm.
Also between February 13, 2008 and April 10, 2008, Respondent had daily contact with Longfield and his secretary, Sara Marudecki, by telephone, facsimile and e-mail. During these communications, Respondent requested information from and directed Longfield and Marudecki to take action on various client matters. These requests and directions included, but were not limited to, a daily report on each client matter, arguments to be made and orders to be requested by Longfield in court hearings, directing language to be used and statements to be made by Longfield in oral and written communications with clients and opposing counsel, and status reports on discovery and hearings in pending cases.
During this period of time, to varying degrees, Respondent was involved in 11 client matters. His involvement included drafting pleadings, and reviewing and revising Longfield's
drafts of pleadings, discovery and letters to opposing counsel and clients. Based on Respondent's instructions, Longfield incorporated Respondent's revisions into her drafts of pleadings, discovery and letters to opposing counsel and clients. Also based on Respondent's instructions, Longfield and Marudecki filed pleadings, sent letters drafted by Respondent, and sent letters drafted by Longfield and revised by Respondent. The client matters were pending in Cook and Will Counties.
Testimony of Erica Longfield
Erica Longfield is an attorney who worked for Respondent from January 2008 through April 2008. She graduated from John Marshall Law School in May 2007, and was licensed to practice law on November 8, 2007. (Tr. 18-20). Longfield had no experience in employment law, but was interested in litigation. (Tr. 21-22; Adm. Ex. 2). During the interview for the position, Respondent did not inform Longfield he had a pending disciplinary matter. (Tr. 24). On January 15, 2008, Longfield began working for Respondent. (Tr. 25-27, 70-71). Two weeks later, Longfield discovered Respondent would be suspended from the practice of law beginning in February 2008, and asked him about it. (Tr. 27-28). Respondent explained the reason for the suspension, and assured her the office would continue to operate during his suspension. (Tr. 28-29). Respondent told Longfield he would transfer shares of the firm to another attorney, Steve McMullen, and she could ask him questions in Respondent's absence. He also told Longfield she could talk to William Harte and attorneys at another law firm in Respondent's building. She never asked any of those attorneys for assistance. (Tr. 29-31).
During Respondent's suspension, Longfield filed motions to continue pending cases until Respondent returned from the suspension, and appeared in court on the motions. Some motions were allowed and some were not allowed. (Tr. 32-33). Respondent instructed Longfield not to
tell clients he was suspended, but was "unavailable," and if they needed assistance, she would assist them. (Tr. 33). If new clients called the office, Longfield or the paralegal would talk to the client, relate the facts of the case to Respondent, and Respondent would tell them if he would accept the case. (Tr. 34).
Respondent was never present at the office during his suspension. He called Longfield on the telephone approximately 20 times per day. During the conversations, they would discuss everything that went on in the office, including the status of cases. Respondent also assisted Longfield formulate questions for depositions. (Tr. 35-36; Adm. Exs. 4, 8, 9). Respondent met with Longfield on three or four occasions. At one of the meetings, Respondent helped Longfield prepare for a hearing on a pending motion. At another meeting, she brought Respondent the office mail. On one occasion, Respondent drove Longfield to court in Will County. (Tr. 37, 54). Prior to a court appearance, Respondent would instruct Longfield on what to say, and would ask her about what happened after the appearances. (Tr. 39-40, 53). Respondent drafted or dictated letters for Longfield to send to opposing counsel. (Tr. 40; Adm. Ex. 4). In one of the letters, Respondent responded to a settlement demand. (Tr. 41). Longfield estimated that 95 per cent of the court filings and letters she sent were reviewed by Respondent. (Tr. 41-42). Respondent and Longfield sent e-mails on a daily basis regarding pending cases. (Tr. 37-38; Adm. Ex. 4).
Respondent had access to the law firm's computer from home and would review the firm's calendar. (Tr. 42-43). Although Longfield did not observe Respondent meet with clients, he told her he met with a client during his suspension. She also saw e-mails send directly between Respondent and a client. (Tr. 43, 57-58, 65-66; Adm. Ex. 4). On several occasions, Longfield drafted legal documents, and on Respondent's instruction, she would send them to Respondent, he would edit them, and send her the revised documents. (Tr. 44-46; Adm. Exs. 5,
7). Respondent also drafted legal documents without Longfield's assistance, sent them to Longfield, and instructed her to file them. (Tr. 45-46; Adm. Exs. 5, 6).
In early April 2008, Longfield decided to quit working for Respondent. She became increasingly uncomfortable working for him while he was suspended. After filing the document Respondent drafted, Longfield called the ARDC and discussed her situation. Later that day, an ARDC employee went to her office and obtained copies of documents and records. (T. 46-48). On April 10, 2008, after speaking with the ARDC, Longfield resigned from her position. (Tr. 54-55). During a deposition, Longfield stated she did not recall what Respondent wanted her to tell clients about his suspension. (Tr. 50).
Testimony of Sara Marudecki
Sara Marudecki is a paralegal who worked for Respondent from May 2007 to July 2008. She initially performed secretarial and receptionist work at Respondent's office, however during his period of suspension, she performed paralegal duties as well. (Tr. 73, 75-76, 86). Another employee told Marudecki about Respondent's suspension, and she was afraid she would lose her job. Later, Respondent told her she could continue to work during his suspension. (Tr. 76-80, 92). During his suspension, Respondent communicated with Marudecki by telephone and e-mail. (Tr. 81-83). On one occasion, Respondent instructed Marudecki to inform a prospective client he was suspended and could not accept his case. (Tr. 102-105; Resp. Ex. 5). She resigned on July 2, 2008, after Respondent returned from his suspension, and had no animosity toward Respondent. (Tr. 96-102; Resp. Exs. 3, 4).
Testimony of Respondent
Respondent has been licensed to practice law since 1971. After working for a law firm for a short period of time, Respondent started his own firm. Respondent's practice focuses on
employment law, with an emphasis on sexual harassment and gender discrimination cases. His firm has always been small, consisting of himself and as many as three associates. Respondent usually hires recent law school graduates as associates. (Tr. 132-37).
On January 23, 2008, Respondent learned he would be suspended from the practice of law for four months from February 13 to June 13, 2008. He informed his staff about his disciplinary proceeding in November 2007. Shortly thereafter, the associate working for Respondent resigned due to a family tragedy. On January 15, 2008, Respondent hired Longfield. He knew she was a recent law school graduate and had very little experience. (Tr. 138-44; 177-78). After the Supreme Court entered the final order in his disciplinary case, Respondent informed Longfield of his suspension. (Tr. 144-45, 174-75). Respondent and Longfield met with William Harte, Respondent's attorney, and Harte told Longfield if she needed any help she could call his office. (Tr. 146). Respondent thought Longfield and Marudecki could run the office during his suspension. He also believed he could call his office and give his employees instructions. (Tr. 146-47).
During the suspension, Respondent was never physically present in his office. He had contact with two clients, Marteen Lopez and Dr. Courtney Herbert. Lopez also was Respondent's landscaper for 13 years, and Dr. Herbert was a friend. He discussed the status of a pending case with Lopez and Dr. Herbert. (Tr. 148-49, 183-84, 190; Resp. Ex. 1). Respondent also admitted during the first part of the suspension, he called and e-mailed his office, made revisions to documents, performed legal research and drafted briefs. (Tr. 150-54). He did not think he was doing anything wrong, and thought he was protecting his clients' interests. In one instance, a brief was due in the appellate court, and Respondent could not get an extension of time. He asked his attorney for advice, and was told to explain the contents of the brief to
Longfield, and have her sign and file it. Respondent applied that advice to other cases. (Tr. 154-56).
After Longfield contacted the ARDC, Respondent learned the ARDC was investigating him, and on April 10, 2008, he received a subpoena. After that date, he stopped performing all legal work. Respondent enjoys practicing law and, although he is 66, has no plans to retire. Respondent is sorry for and embarrassed by his conduct, and will not repeat it. He had trouble letting go of his law practice, but he has learned from this experience. (Tr. 172-76, 196). He did not intend to practice law during the suspension, and now understands that he acted improperly. (Tr. 167-68, 197).
In his career, Respondent represented clients in two legally significant cases. One of the cases was decided by the U.S. Supreme Court, and one by the Seventh Circuit Court of Appeals. (Tr. 156-61). Respondent represents clients on a contingent fee basis, which is unusual of lawyers practicing in that area of law. He does this because most of his clients cannot afford to pay a retainer, and would otherwise not be able to pursue their cases. (Tr. 161-64).
Respondent donates time and money to the Shrine of Our Lady of Pompeii. The church was closed in 1990 or 1991. In 1993, a neighborhood group was formed to re-open the church. Respondent was on the founding board. He donates money, time and religious items to the church on a regular basis. (Tr. 168-69, 170-71). He also has donated money to Holy Name Cathedral, the National Shrine of the Immaculate Conception, and the order of St. John Bosco. He gave two scholarships to the National Italian American Foundation, and donated to the scholarships given by the Order of Sons of Italy. He has also donated money to the Columbian Club, and the Chicago Lyric Opera. (Tr. 169-70). Respondent has performed some pro bono legal work at the request of priests. (Tr. 186-87).
Testimony of Father Nicholas Fragomeni
Father Nicholas Fragomeni is a Roman Catholic priest and lives in Albany, New York. (Tr. 107-108). Father Fragomeni met Respondent 12 years ago when he was the vice rector of the Shrine of Our Lady of Pompeii. The Shrine is a former Italian-American parish that is preserved as a historic site. Respondent was on the founding board of the Shrine and has donated time, money, food and religious objects. Respondent has received a benefactor award for his service. (Tr. 109-11). Father Fragomeni opined that Respondent has a good reputation for being truthful, honorable, and charitable. (Tr. 113-14).
Testimony of Steven Platt
Steven Platt is an attorney practicing in the area of labor and employment law. (Tr. 116-18). Platt has known Respondent for 31 years and has worked on cases with and against him. (Tr. 118-19). Respondent was involved in an important civil rights case, decided by the U.S. Supreme Court, that reaffirmed a woman's right to pursue a sexual harassment case based on a hostile work environment. (Tr. 120-21). Respondent also successfully argued another matter in the Seventh Circuit involving a woman's right to promotions. (Tr. 125-26). Platt opined that Respondent has a very good reputation for truthfulness in the legal community. (Tr. 127-28).
As noted, Respondent received a prior discipline based on misconduct involving one client matter. In that matter, Respondent rejected a settlement offer without informing his client of the offer. He was suspended from the practice of law for four months, from February 13, 2008 to June 13, 2008. In re Ernest Thomas Rossiello, 03 CH 33, M.R. 21894 (Jan. 23, 2008).
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 Cutright, 233 Ill. 2d 474, 910 N.E.2d 581 (2009). 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. "Clear and convincing evidence has been defined as evidence producing a firm belief or conviction as to the truth of the proposition." Cleary and Graham, Handbook of Illinois Evidence, sec. 301.6 (8th ed. 2004). 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. at 12). Suspicious circumstances are insufficient to warrant discipline. In re Lane, 127 Ill. 2d 90, 111, 535 N.E.2d 866 (1989).
In this case, based on the admitted facts and the evidence and testimony presented at the hearing, we find Respondent engaged in all of the misconduct alleged in the Complaint. Specifically, we find Respondent: 1) practiced law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; 2) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; 3) engaged in conduct that is prejudicial to the administration of justice; and 4) engaged in conduct that tends to defeat the administration of justice or brings the courts or legal profession into disrepute in violation of Rules 5.5, 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.
Respondent admitted he engaged in the unauthorized practice of law, and there is little question he did so. The Illinois Supreme Court has found that a "[d]efinition of the term
‘practice of law' defies mechanistic formulation." In re Discipio, 163 Ill. 2d 515, 523, 645 N.E.2d 906 (1994). Instead, in determining whether conduct amounts to the practice of law, the Court has examined the character of the conduct. Id. at 523. It is well established that a person engages in the practice of law when he gives advice or renders services that requires the use of legal knowledge or the skill to apply legal principles. In re Howard, 188 Ill. 2d 423, 438, 721 N.E.2d 1126 (1999); Discipio, 163 Ill. 2d at 523. The Court has articulated examples of conduct constituting the practice of law including, preparing or explaining legal instruments, preparing pleadings and other papers incident to actions, giving advice on questions of law, and giving an opinion regarding the right to maintain an action. In re Nash, 03 CH 128, M.R. 20418 (Nov. 22, 2005) (Hearing Bd. Rpt. at 26); Discipio, 163 Ill. 2d at 525.
Respondent was suspended from the practice of law from February 13, 2008, to June 13, 2008. In anticipation of his suspension, in January 2008, Respondent hired Longfield as an associate to work in his law office. Longfield was a recent law school graduate, and had been licensed to practice law for three months. Respondent knew Longfield was too inexperienced to assume full responsibility for his office.
During his suspension, Respondent essentially performed all the legal activities he would have performed if he had not been suspended, except having regular client contact and appearing in court. He was in constant contact with his office by telephone, e-mail and facsimile. He told Longfield and Marudecki exactly what action to take on specific client matters. He received a daily report on each client matter and instructed Longfield how to handle every aspect of each case. Longfield did nothing without Respondent's approval. Respondent told her the arguments to make and the orders to request in court hearings. He dictated the language to be used and statements to be made in oral and written communications with clients and opposing counsel.
Respondent also drafted pleadings, discovery and letters to opposing counsel and clients, and reviewed and edited Longfield's drafts of pleadings, discovery and letters. In effect, Respondent ran his law practice from his home and strictly supervised every aspect of Longfield's work during his suspension. There can be no question Respondent engaged in the unauthorized practice of law.
We also find the Administrator proved Respondent engaged in conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice and brings the courts or the legal profession into disrepute. By practicing law while his law license was suspended, Respondent violated an Illinois Supreme Court order. By violating the Court's order, Respondent defeated the administration of justice and brought, not only attorneys, but the Court into disrepute. Respondent's conduct demonstrated his lack of respect for the Court's authority, and diminished the Court's authority to the public.
We further find the Administrator proved Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. Respondent testified he did not think he was doing anything wrong, and was protecting his clients' interests. Although Respondent seemed sincere when making this statement, based on his extensive involvement in his practice during his suspension, we find that he could not reasonably believe he was complying with his suspension order. He monitored and directed everything Longfield did while she worked for him. He used her to essentially continue practicing law during his suspension. Based on these facts, it is reasonable to conclude Respondent acted dishonestly and deceptively by continuing to practice law. We acknowledge Respondent engaged in misconduct for two of his four month suspension; however, he only stopped after Longfield informed the Administrator and the Administrator began investigating Respondent's conduct.
The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. See In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003); In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999). "The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system." In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995). The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach. See In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000). In determining the appropriate sanction for an attorney's misconduct, the purpose of the disciplinary system and the facts surrounding the misconduct must be considered. See In re Chernois, 114 Ill. 2d 527, 502 N.E.2d 722 (1986). Also, "it is important to recognize the deterrent value of a sanction and the need to impress upon others the seriousness of the misconduct at issue." Twohey, 191 Ill. 2d at 85.
The discipline imposed on an attorney who has engaged in misconduct also depends on the aggravating and mitigating factors presented during that attorney's disciplinary proceedings. See Gorecki, 208 Ill. 2d at 360-61. In the present case, there are several mitigating and aggravating factors.
Respondent's conduct is mitigated by the fact that his clients were not harmed by his misconduct. Although Respondent practice law while suspended, ultimately all of his clients were represented by Longfield, a licensed attorney. There is no evidence suggesting any client suffered adverse consequences based on Respondent's misconduct. Although Respondent talked
with two of his clients, the evidence shows he did not give them legal advice, but told them the status of their cases.
Respondent's misconduct is also mitigated by his charitable activities. Respondent donates time and money to several religious organizations including the Shrine of Pompeii, Holy Name Cathedral, the National Shrine of the Immaculate Conception and the order of St. John Bosco. He was instrumental in re-opening the Shrine of Pompeii, and has donated money, time and religious items to this Church on a regular basis. He also gave two scholarships to the National Italian American Foundation, and donated to the scholarships given by the Order of Sons of Italy. He has donated money to the Columbian Club and the Chicago Lyric Opera. Respondent has also performed some pro bono legal work.
Respondent's misconduct is further mitigated because he acknowledged his misconduct and is remorseful. After observing Respondent testify we are convinced that he fully understands what he did wrong and is genuinely remorseful for his actions. This is a significant mitigating factor because it demonstrates that Respondent has learned a valuable lesson from this case and is unlikely to engage in similar misconduct in the future. See In re Merriwether, 138 Ill. 2d 191, 561 N.E.2d 662 (1990).
Respondent's misconduct is further mitigated by his good character. Respondent presented two character witnesses who testified that he has a good reputation for honesty and integrity. We consider this testimony a mitigating factor. See In re Lenz, 108 Ill. 2d 445, 484 N.E.2d 1093 (1985). We also acknowledge the evidence showing Respondent is a zealous advocate for his clients, and has represented clients in two legally significant cases, one of which was decided by the U.S. Supreme Court.
Respondent's conduct is aggravated by the fact that he received a prior discipline. Generally, prior discipline is a serious aggravating factor, and requires a more severe sanction than might otherwise be imposed. In re Blank, 145 Ill. 2d 534, 585 N.E.2d 105 (1991). The nature of the prior misconduct and the period of time between the prior misconduct and the current misconduct are important elements to consider when determining the weight to be given to this aggravating factor. See In re Levin, 101 Ill. 2d 535, 463 N.E.2d 715 (1984); In re Weitzman, 93 CH 551, M.R. 12217 (Mar. 26, 1996). In the present case, Respondent was suspended from the practice of law in 2008 for four months for rejecting a settlement offer without informing his client of the offer. Although Respondent's prior discipline is recent, the nature of his current misconduct is substantially different from his prior misconduct. Therefore, we do not give this aggravating factor significant weight.
Respondent argued he mistakenly thought he could review Longfield's work and discuss cases with her as long as he was not present at his law office. Although Respondent appeared sincere when making this statement, the Supreme Court has made it clear that ignorance of ethical obligations does not excuse attorney misconduct. Howard, 188 Ill. 2d 423. Further, it is difficult to understand how an experienced attorney such as Respondent could honestly believe he could engage in such extensive legal activity while suspended. Therefore, we do not consider this a mitigating factor.
Having considered the mitigating and aggravating factors, we must now recommend the appropriate sanction. The Administrator recommends Respondent be suspended for two years, and bases this recommendation on several cases where an attorney practiced law while suspended including: Howard, 188 Ill 2d 423 (two year suspension); Discipio, 163 Ill. 2d 515 (two years suspension); In re Bodkin, 21 Ill. 2d 458, 173 N.E.2d 440 (1961) (three year
suspension); In re Mays, 01 SH 80, M.R. 18853 (Sept. 25, 2003) (two year suspension and until further order of the court); In re Martin, 99 CH 19, M.R. 17574 (Sept. 20, 2001) (36 month suspension and until further order of the court). Respondent admits that a short suspension is warranted, and suggests a four month suspension citing several cases including: In re Stephens, 08 SH 104, M.R. 23258 (Sept. 22, 2009) (sixty day suspension); In re Gabe 04 CH 8, M.R. 21734 (Sept. 18, 2007) (six month suspension); In re Van Hooreweghe, 03 SH 6, M.R. 19989 (May 19, 2005) (60 day suspension).
After reviewing the cases cited by the parties, and other relevant cases, we believe that a suspension from the practice of law for nine months is appropriate in this matter. We find the cases cited by the parties distinguishable from the present case because they either involve more or less egregious misconduct, or misconduct that is not analogous to the misconduct in the present case.
In Howard, the attorney engaged in five separate instances of misconduct including failing to disclose a prior suspension on a pro hac vice petition, neglecting a criminal appeal, failing to return a $25,000 unearned fee, and practicing law while his license was suspended in three separate criminal matters. In the three criminal matters, Howard gave legal advice to clients and accepted legal fees. He had been disciplined on two prior occasions for neglecting client matters, failing to refund unearned fees, and converting client funds. Howard, 188 Ill. 2d 423.
In Discipio, the attorney aided a disbarred attorney engage in the practice of law and split legal fees with him. During a 13 year period, the disbarred attorney referred 200 cases to Discipio, and Discipio paid him approximately $170,000 in fees. Discipio, 163, Ill. 2d 515. In Bodkin, while suspended from the practice of law, the attorney negotiated a settlement in one
case, took his fee from the proceeds, and converted a portion of the proceeds owed to a medical provider. Bodkin, 21 Ill. 2d 455.
In Mays, the attorney practiced law while his license was suspended and assisted a non-lawyer in the unauthorized practice of law. While suspended, Mays gave a non-attorney advice on numerous occasions and prepared answers for the non-attorney to file in pending cases. He also provided non-attorneys with blank forms, allowed them to place his name on the forms, and submit the forms to the court without his review. Mays received a prior discipline for making misrepresentations to a process server and magistrate judge, and notarizing a forged signature on a deed. Mays, 01 SH 80.
In Martin, the attorney engaged in the practice of law while suspended in six separate cases. In these cases, Martin discussed the matters with his clients and appeared in court. Some of the court appearances involved procedural matters, but other involved substantive legal matters. For example, he participated in a prove-up in a divorce case, and was involved in entering an order of withholding for child support. When he appeared in court, he did not disclose his suspension to opposing counsel or the judges. Martin had received two prior disciplines for neglecting client matters and failing to refund unearned fees. Martin, 99 CH 19.
In Stephens, the attorney practiced law for several months in two separate years without paying his annual registration fees, and failed to respond to the ARDC's request for information. During these months, Stephens met with clients, prepared pleadings, and appeared in court. Stephens' conduct amounted to the unauthorized practice of law. He had received a prior discipline for dissimilar conduct. Stephens, 08 CH 104.
In Gabe, the attorney engaged in misconduct in relation to her handling of her law practice during her suspension. Although Gabe did not practice law during her suspension, she
failed to comply with the appropriate Supreme Court Rules regarding notifying clients, withdrawing from cases, collecting fees, and maintaining financial records. She presented significant mitigating evidence. Gabe, 04 CH 8.
In Van Hooreweghe, the attorney filed three legal actions in Iowa, using an Iowa attorney's name, without the knowledge or consent of that attorney. In one case, Van Hooreweghe forged the Iowa attorney's signature on a certificate of service and had it notarized. Van Hoorweghe had no prior discipline and presented substantial mitigating evidence. Van Hooreweghe, 03 SH 6.
None of the cases cited by the parties is sufficiently similar to the present case. In the cases cited by the Administrator, the attorney engaged in more egregious conduct by directly practicing law while suspended or aiding a non-lawyer in the practice of law. Where the attorneys continued to practice law, they met with clients, accepted attorney's fees, drafted documents and signed them, and/or appeared in court. In the cases cited by Respondent, the attorney engaged in less egregious conduct by practicing law without paying his registration fees, filing lawsuits in another State without being licensed to practice law in that State, or mishandling a law practice while suspended, but not practicing law.
In the present case, Respondent did not meet with clients, file documents with the courts, improperly accept fees or assist a non-lawyer in the practice of law. Instead, he practiced law through a licensed attorney. By having Longfield enter her appearance in the pending cases, file all documents with the courts, and perform all the activities necessary to represent the law firm's clients, Respondent ensured his clients would not be harmed and he would not openly disregard the order of suspension. These are important distinctions, but they only distinguish other disciplinary cases and do not minimize Respondent's misconduct. Accordingly, we find the
appropriate sanction in this case should be a suspension that is shorter than the one suggested by the Administrator and longer than the one suggested by Respondent. Because there are no cases with facts sufficiently analogous this case, we must make our own determination of the appropriate sanction. In making this determination, we have fully considered the evidence and given considerable weight to Respondent's mitigating evidence.
Therefore, in light of Respondent's misconduct, and after considering the aggravating and mitigating factors and relevant case law, we recommend that Respondent be suspended from the practice of law for a period of nine months.
Date Entered: September 1, 2010
|Debra J. Braselton, Chair, Donna L. Otis, and Cheryl M. Kneubuehl, Hearing Panel Members.|