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

In the Matter of:

JAMES RUSSELL FENNERTY,

Attorney-Respondent,

No. 793000.

 

Commission No.  09 CH 26

FILED -  May 21, 2009

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Lea S. Black, pursuant to Supreme Court Rule 753(b), complains of Respondent, James Russell Fennerty, who was licensed to practice law in the State of Illinois on May 16, 1972, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

(Preparing an instrument giving Respondent a substantial gift from a client)

1. Beginning in about February 2001, Respondent represented Fawaz Mahamid ("Mahamid") in various legal matters. Those matters included a personal injury case in which Mahamid was the plaintiff, and a real estate transaction in which Mahamid was the seller. As a result, Respondent gained access to information about Mahamid's financial condition that would otherwise have been private and confidential.

2. In or about July 2003, Mahamid underwent surgery to remove a malignant tumor on his brain. Respondent was aware of Mahamid's health condition and that he would be undergoing surgery in July 2003.

3. In or about August 2003, Mahamid asked Respondent to prepare a last will and testament for Mahamid to execute.

4. Respondent, as a consequence of his agreement to represent Mahamid, owed Mahamid various fiduciary duties including the duties of honesty, loyalty, and fair dealing, which, among other things, precluded Respondent from drafting a will for Mahamid which named himself or his family members as beneficiaries.

5. Shortly thereafter, and pursuant to Mahamid's direction, Respondent prepared a last will and testament for Mahamid's execution. In the last will and testament, Respondent included himself and Respondent's spouse as beneficiaries of Mahamid's estate.

6. At no time did Respondent advise Mahamid to seek the advice of independent counsel, or explain to his client that the proposed gift to Respondent could affect the likelihood that Mahamid's planned distribution of his estate could be challenged after his death.

7. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. prepared an instrument giving Respondent a substantial testamentary gift from Mahamid without obtaining Mahamid's consent after disclosure, in violation of Rule 1.8(c) of the Illinois Rules of Professional Conduct;

  2. 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

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

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Lea S. Black
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Lea S. Black