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

In the Matter of:

 DONALD WAYNE GARLINGER,

Attorney-Respondent, 

No. 915521.

 

Commission No.  09 CH 29

FILED -  MAY 26, 2009

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Gina M. Abbatemarco, pursuant to Supreme Court Rule 753(b), complains of Respondent Donald Wayne Garlinger, who was licensed to practice law in Illinois on November 15, 1962, 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:

1. In 1974, Dennis J. Konicki ("Konicki") was a part owner of Oak Brook Racquet Club ("OBRC") and entered into a series of consultation agreements with OBRC in which he was to be paid for consultant services to OBRC but was prohibited from competing with OBRC in its business within ten square miles of the club. On or about December 9, 1976, Konicki filed a complaint in the Circuit Court of DuPage County seeking damages from the OBRC for an alleged breach of the non-compete consultation agreement. The matter was docketed as Konicki v. OakBrook Racquet Club, Inc, case number 76 L 1111.

2. In or about August 1978, Judge William L. Hoff referred case number 76 L 1111 to an arbitrator. On September 29, 1980, the arbitrator found in favor of OBRC and awarded damages to OBRC, offset by amounts OBRC owed Konicki under the consultation agreements, so that Konicki was ultimately awarded $38,500. In 1980, Respondent agreed to represent Konicki in matters related to an attempt to vacate or modify the September 29, 1980 decision of the arbitrator in case number 76 L 1111. Respondent and Konicki agreed that Respondent would be paid a 1/3 contingency fee and that Konicki would pay the costs of the litigation.

3. On or about December 24, 1980, Respondent filed with the court on behalf of Konicki a petition to vacate or modify the September 29, 1980 arbitration decision in case number 76 L 1111.

4. On or about January 23, 1981, OBRC moved to strike Respondent's petition because it was not timely filed. On August 6, 1981, Judge Charles R. Norgle granted OBRC's motion and struck Respondent's petition with prejudice.

5. On September 4, 1981, Respondent filed an amended petition to vacate or, in the alternative, to modify the decision of the arbitrator.

6. On or about September 8, 1981, Respondent filed a motion to reconsider, requesting that the court vacate the order of August 6, 1981, grant a rehearing on his petition to vacate the arbitration award and grant him leave to file instanter his amended petition to vacate or in the alternative, to modify the decision of the arbitrator.

7. On September 28, 1981, Judge Norgle entered an order granting Respondent leave to file an amended petition.

8. On November 30, 1981, after hearing arguments from counsel, Judge Norgle entered an order re-affirming the August 6, 1981 ruling in which he granted OBRC's motion to strike Respondent's petition to vacate an arbitrator's award and denying Respondent's motion for leave to file an amended petition to vacate.

9. On December 30, 1981, Respondent filed a notice of appeal with the Appellate Court of Illinois, Second District. The matter was docketed as Konecki, Plaintiff-Appellant v. Oak Brook Racquet Club, Inc., Defendant-Appellee, no. 82-2.

10. Respondent represented Konicki throughout the briefs and arguments of the appeal in case no. 82-2.

11. On or about November 8, 1982, the appellate court issued its opinion in case no. 82-2. The court found that the lower court's dismissal of Respondent's petition as untimely had been improper and remanded the matter for further proceedings before the lower court. Konecki, v. Oak Brook Racquet Club, Inc., 110 Ill.App.3d 217, 441 N.E. 2d 1333 (1982).

12. On or about November 8, 1982, the appellate court sent notice of its opinion to the parties. Respondent received notice of the opinion shortly after it was sent.

13. At no time after November 2, 1982, did Respondent file or re-file any motion or pleading on behalf of Konicki to reinstate the matter before the trial court for further proceedings as stated in the appellate court's opinion, or take any other steps protect Konicki's claim or to make efforts on Konicki's behalf to obtain the $38,500 awarded to him by the arbitrator on September 29, 1980.

14. Between November 8, 1982 and May 20, 2009, the date the Inquiry Board voted that a complaint be filed in this matter, Respondent advised Konicki at least on a yearly basis that the lawsuit involving his dispute with OBRC was still pending in the circuit court. Respondent also told Konicki that they had prevailed in the circuit court, OBRC had appealed and the matter was pending in the Appellate Court and ultimately, the Illinois Supreme Court. Respondent's statements to Konicki were false and Respondent knew they were false because he knew that he had done nothing to reinstate Konicki's case and that Konicki's matter was not pending in any court.

15. In September 1998, Respondent prepared what purported to be an agreed court order dated March 2, 1998 in case number 76 L 1111, in which the court found in favor of Konicki and stated that the non-compete clause in the consultation agreement was void as against public policy. The order was false and Respondent knew it was false because he knew that he had not done anything to reinstate Konicki's case after the appellate court opinion. Respondent sent the purported agreed order to Konicki in order to lead Konicki to believe that the arbitrator's decision had been vacated.

16. At no time did Respondent advise Konicki that he had not done anything to reinstate Konicki's case after the appellate court opinion.

17. By reason of the conduct outlined above which occurred before August 1, 1990, Respondent has engaged in the following misconduct:

  1. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 1-102 (a)(4) of the Code of Professional Responsibility;

  2. conduct that is prejudicial to the administration of justice, in violation of Rule 1-102 (a)(5) of the Code of Professional Responsibility;

  3. neglecting a legal matter entrusted to the lawyer in violation of Rule 6-101 of the Code of Professional Responsibility;

  4. failing to be punctual in fulfilling all professional commitments in violation of Rule 7-101(a)(1)(B) of the Code of Professional Responsibility; and

  5. prejudicing or damaging his client Konicki during the course of the professional relationship in violation of Rule 7-101(a)(3) of the Code of Professional Responsibility.

18. By reason of the conduct outlined above which occurred after August 1, 1990, Respondent has engaged in the following misconduct:

  1. failing to provide competent representation to a client in violation of Rule 1.1 of the Illinois Rules of Professional Conduct (in effect August 1, 1990);

  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 about the status of a matter in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

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

  5. 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

  6. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770 (formerly Rule 771 between August 1, 1990 and March 23, 2004 after which it was renumbered).

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.

Gina M. Abbatemarco
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, #1500
Chicago, Illinois 60601
(312) 565-2600 
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  

Gina M. Abbatemarco