Filed November 2, 2010
In re Steven Lee Popuch
Commission No. 09 CH 3
Synopsis of Review Board Report and Recommendation
The Administrator-Appellee filed a three-count complaint against the Respondent-Appellant Steven Lee Popuch, charging him with misconduct resulting from the assistance he provided to a disbarred attorney who continued to practice law, and from the Respondent's denial of any involvement in the matter. All three counts of the complaint charged that he engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct, and that he 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. In addition, Count I of the complaint alleged that he assisted a person who was not a member of the bar in the performance of activity that constituted the unauthorized practice of law, in violation of Rule 5.5(b) and that he gave assistance to another's conduct when he knew that the conduct would violate the Rules of Professional Conduct, in violation of Rule 8.4(a)(2). Both Counts II and III also charged that the Respondent made a statement of material fact in connection with a disciplinary matter that he knew to be false, and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rules 8.1(a)(1) and Rule 8.4(a)(4), respectively. Respondent admitted almost all of the factual allegations of the complaint and denied some of them. He admitted some of the allegations of misconduct and denied some of them.
The Hearing Board found that there was clear and convincing evidence that the Respondent committed all of the misconduct charged in the complaint. It recommended that Respondent be suspended from the practice of law for fifteen months.
The case was before the Review Board on the exceptions of the Respondent, who objected only to the Hearing Board's recommended sanction and asked the Review Board to recommend a shorter period of suspension. The Administrator urged the Review Board to uphold the Hearing Board's recommendation.
The Review Board affirmed the Hearing Board's findings of fact and findings of misconduct and recommended that Respondent be suspended from the practice of law for a period of nine months.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
STEVEN LEE POPUCH,
Commission No. 09 CH 3
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellee filed a complaint against the Respondent-Appellant Steven Lee Popuch, charging him with three counts of misconduct as a result of the assistance he provided to his best friend and former law partner, who continued to practice law after he had been disbarred, and from the Respondent's denial of any involvement in the matter on two occasions to the ARDC. All three counts of the complaint charged that he engaged in conduct that was prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct, and that he 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. In addition, Count I of the complaint alleged that he assisted a person who was not a member of the bar in the performance of activity that constituted the unauthorized practice of law, in violation of Rule 5.5(b) and that he gave assistance to another's conduct when he knew that the conduct would violate the Rules of Professional Conduct, in violation of Rule 8.4(a)(2). Both Counts II and III also charged that the Respondent made a statement of material fact in connection with a disciplinary matter that he knew to be false and that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rules 8.1(a)(1)
and Rule 8.4(a)(4), respectively. The Respondent admitted almost all of the factual allegations of the complaint and denied some of them. He admitted some of the allegations of misconduct and denied some of them.
The Hearing Board found that there was clear and convincing evidence that the Respondent committed all of the misconduct charged in the complaint. It recommended that the Respondent be suspended from the practice of law for fifteen months.
The case is now before the Review Board on the Respondent's exceptions. He objects to the sanction recommended by the Hearing Board, and asks the Review Board to recommend a lesser sanction. The Administrator argues that the recommendation of the Hearing Board should be affirmed.
The Respondent admitted the following facts:
In or about 2001-04, the Respondent and Marc E. Levine were partners in the practice of law, and they remained close personal friends at all times pertinent to the complaint. Levine was disbarred on January 12, 2007. In re Levine, 06 CH 24, petition for discipline on consent allowed, M.R. 21333 (January 12, 2007). The Respondent learned of Levine's disbarment shortly after the order was entered.
Levine continued to practice law after he was no longer authorized to do so. He identified himself as an attorney to other attorneys and members of the public, drafted documents related to real estate closings on the Respondent's letterhead, used the Respondent's fax machine to send and receive correspondence, appeared at real estate closings and received legal fees. Between on or about April 11, 2007 and December 12, 2007, Levine acted as the attorney for the buyer or seller in seventeen real estate transactions.
After the date that he was disbarred, Levine received mail and telephone messages at Respondent's office, which were given to him. He came to the Respondent's office, usually in the context of having lunch with the Respondent, and used the office machinery. The Respondent was aware that Levine was engaging in unauthorized practice. He allowed Levine to practice out of his office by allowing him to receive mail and telephone messages and to use the office equipment. The Respondent admitted that he assisted Levine in his unauthorized practice and in conduct that violated the Rules of Professional Conduct.
On or about January 28, 2008, the Administrator received a letter from the seller's attorney in a real estate transaction where Levine purported to represent the buyer. The attorney had received a letter from Levine proposing modifications to the real estate contract, which was written on the Respondent's letterhead, and she was concerned that the Respondent was assisting Levine in his unauthorized practice.
In response to the Administrator's request that he respond in writing to the allegations contained in the letter, the Respondent stated in part that the buyer was his client, and had been referred to him by Levine. According to the Respondent, he had a temporary secretary working for him the day the letter was written and as he was in court that morning, he had dictated the letter over the telephone and instructed her to fax it to the seller's attorney. The Respondent further stated that "unfortunately, and clearly by error, after the modification letter was prepared, the temporary secretary, seeing Mr. Levine's name on the fax, put his name on the letter…."
The Respondent later admitted that his statements to the Administrator, which resulted in the charges of Count II, were false.
The Respondent essentially repeated his false statements in his sworn statement to the Administrator. When asked why his temporary secretary would have signed Levine's name to the letter, the Respondent testified that he had asked her that question, "and she just shrugs her shoulders. She doesn't know why. And you know, I know how it looks, but you know, he's not there."
The Respondent provided additional false testimony concerning his representation of the buyer. He admitted that his testimony was false, as he never represented the buyer and never spoke to him. He admitted that the buyer retained Levine to represent him. The Respondent's false testimony at his sworn statement resulted in the charges of Count III.
As a preliminary matter, we note that the Respondent's two and one-half page brief fails to comply with Commission Rule 302 in many respects. Rule 302(e) sets forth the information that is to be contained on the cover of each brief. The Respondent's brief does not have a cover. Rule 302(f)(1) provides that the brief shall contain a "summary statement, entitled ‘Points and Authorities,' of the points argued and the authorities cited in the Argument." The Respondent's brief contains no such statement. Rule 302(f)(4) requires a "Statement of Facts, which shall contain the facts necessary to an understanding of the case….with appropriate reference to the pages of the record on appeal." The Respondent's facts provide merely a summary of the case. Finally, the Appendix to the brief does not contain the index of the record, as required by Rule 302(f)(7).
Rule 302(i) allows the Review Board to strike "any brief or portion thereof that does not conform to the Rules." While we do not condone the Respondent's failure to conform
to the Rule's requirements, we choose not to impose this sanction in this case. We have thoroughly and independently reviewed the record, and address his argument accordingly.
No objection is raised concerning the Hearing Board's factual findings or findings of misconduct. They are supported by the evidence, and they are affirmed. The Respondent objects only to the sanction recommended by the Hearing Board, and asks the Review Board to recommend a lesser sanction. The Administrator argues that the recommendation of the Hearing Board should be affirmed.
The Hearing Board's recommendation as to discipline is advisory only. In re Ingersoll, 186 Ill. 2d 163, 178, 710 N.E.2d 390, 237 Ill. Dec. 760 (1999). In making our own recommendation, we consider the case based on its own particular facts and circumstances, yet we must keep in mind that the purpose of discipline is not to punish the individual respondent, but to protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach. In re Twohey, 191 Ill.2d 75, 85, 727 N.E.2d 1028, 245 Ill. Dec. 294 (2000). Mitigating and aggravating factors are relevant. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991).
The Hearing Board found in mitigation that the Respondent had not been previously disciplined, presented evidence of his good character and his pro bono and community activities, was genuinely remorseful and understood the egregiousness of his misconduct. The Respondent did not admit the truth concerning his part in Levine's unauthorized practice until he was informed by the Administrator that his purported client in the real estate transaction denied that the Respondent represented him. The Hearing Board declined to consider the fact that he eventually told the truth as a mitigating factor, therefore, as it found that there was nothing to suggest he would have recanted if he had not been "caught in his web
of lies of denial." Because the Respondent was aware that Levine had been disbarred for conversion and that he was in desperate financial straits, the Hearing Board considered in aggravation the harm that could have resulted where he allowed Levine to handle matters involving client funds. Additionally, it found that the Respondent's misconduct was not a single, quick and unreasoned failure of judgment but rather, a deliberate course of conduct, as it was more than a year from the time that he concocted a false scenario in response to the Administrator's inquiry until he was forced to tell the truth.
We seek to recommend discipline that, while based on the particular facts and circumstances of this case, is consistent with the sanctions imposed in cases involving similar misconduct. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). Like the Hearing Board, we conclude that In re Wright, 02 CH 91, petition for discipline on consent allowed, M.R. 18833 (Sept. 19, 2003) is the case most similar to the Respondent's situation, where his assistance to a disbarred attorney is concerned. For thirteen months, Wright allowed a suspended attorney, Colin Relphorde, to use his name and law office to conceal his suspension and engage in unauthorized practice. The respondent allowed Relphorde to use his telephones and support staff. Unbeknownst to Wright, Relphorde also used his office letterhead to send correspondence and filed cases using Wright's name. Wright also allowed Relphorde to work on Wright's own cases. He had no prior misconduct and some mitigating factors, and was suspended for six months.
We conclude that the cases relied upon by the Hearing Board in recommending a sanction of an additional nine months do not provide a basis for comparison, however, as they involve considerable misconduct in addition to the false statements of the Respondent's case.
In In re Bell, 147 Ill.2d 15, 588 N.E.2d 1093, 167 Ill. Dec. 963 (1992), the respondent was found in one count of misconduct to have lied in response to the Administrator's initial inquiry, and again in his sworn statement, concerning one of the other twelve counts of misconduct he was found to have committed. Bell filed false loan applications with five different banks, which resulted in his indictment on federal charges. All five counts were charged in the complaint, as were his filing of a false affidavit with the Supreme Court of Tennessee following his convictions, in that he did not inform them that he was licensed to practice in Illinois, and his neglect of three criminal and four civil cases. Bell was disbarred.
In exchange for ten percent of the proceeds, the respondent in In re May, 93 CH 320 (Review Bd., Sept. 6, 1995), Respondent's petition for leave to file exceptions denied, Review Board approved and confirmed, M.R. 11764 (Dec. 1, 1995) allowed a non-attorney, Pryor Owens II, to use his name to practice law. May allowed Owens to print stationery with his name for Owens to use, to sign his name to documents, to place his name on the door of Owens' office and to print business cards with May's name and Owens's address. According to the findings in the case, Owens negotiated settlements in ten personal injury claims, at least two of them without the knowledge of the clients, and without any supervision from May. He paid May his share, but did not pay any of the clients the two-thirds of the settlement that they were to receive. When subpoenaed by the Administrator and when he appeared before the Inquiry Panel 27 months later, May denied being a part of Owens's operation and claimed that he was only Owens's landlord. It was not until after he agreed to cooperate with the United States Attorney's investigation into Owens's conduct that May disclosed his involvement before the Inquiry Panel. May also converted $3,378.79 from a client. He was suspended for four years and until further
order of court, with the requirement that he make restitution of the $3,378.79 he converted and the $70,450 he received from Owens's clients.
In this case, the Respondent lied in his initial response to the Administrator's inquiry, and again in his sworn statement. These are serious charges. He has no prior misconduct and has committed no misconduct unrelated to the Levine matter. Similar circumstances have resulted in suspensions of ninety days.
The respondent in In re Foster, 07 CH 21, petition for discipline on consent allowed, M.R. 21925, (Nov. 20, 2007) had represented Mark Kahler and his businesses for several years and over that time, the men developed a personal relationship. As he was experiencing financial difficulties, the respondent asked Kahler for a loan. Kahler borrowed $7,500 from a bank and gave Foster the money. The terms of their arrangement were not reduced to writing. In his initial letter to the Administrator and in three sworn statements, Foster denied that he had borrowed the money and falsely stated that the $7,500 he received from Kahler was in payment of legal fees. He was suspended for ninety days.
In In re Thomas, 05 CH 72, petition for discipline on consent allowed, M.R. 21053 (Sept. 21, 2006) the respondent forged his client's name on a bail bond refund form that allowed the bond money to be returned to him, had the signature notarized, and filed it. He lied to the Assistant State's Attorney who called him to investigate the matter, after his client denied signing the form, and made false and misleading statements regarding how his client's purported signature came to be placed on the petition in his written response to the Commission and under oath in his sworn statement. Thomas was suspended for ninety days.
In In re Verett, 07 SH 105 (Hearing Bd., June 17, 2008), Administrator's motion to approve and confirm allowed, M.R. 22567 (Sept. 17, 2008), the respondent, who represented
the husband in a dissolution proceeding pending in Madison County, Illinois, filed a motion in the Missouri Circuit Court to stay surgery scheduled for the parties' minor child. The Hearing Board found that she knowingly and deliberately failed to disclose in the Missouri proceeding that she had unsuccessfully sought an injunction in Madison County that same day, or to disclose that the wife had been granted sole decision-making authority for, and her client had been permanently enjoined from interfering with, the child's medical care. Verett also stated in a second pleading that the minor child had "no other means for relief, Madison County refused to entertain a motion to delay the surgery," when in fact, Madison County had denied the motion. In a sworn statement during the disciplinary investigation, the Respondent falsely stated that she told the Missouri judge about the Illinois proceedings. The Hearing Board found that Verett intentionally failed to disclose material facts to a tribunal and that she knowingly made a false statement to the ARDC, in an "an unacceptable attempt ‘to escape the consequences of [her] misdeeds.'" We consider Verett's misconduct to be more egregious than the Respondent's in this case, or than that of the respondents in Foster or Thomas, as she made false statements to the court as well as to the ARDC. Verett was suspended for ninety days and required to successfully complete the professionalism seminar of the Illinois Professional Responsibility Institute.
We conclude that the sanctions imposed in similar circumstances support a suspension of nine months in this case. Additionally, while we consider the Respondent's failure to tell the truth regarding a disciplinary matter, even when placed under oath, to be serious misconduct, we continue to be of the opinion that "respondents in ARDC proceedings should be encouraged to testify truthfully and to correct earlier testimony that was inaccurate or untruthful, whether the result of a deliberate lie, mistake or recklessness." In re Rossiello, 03 CH 33
(Review Bd., Aug. 13, 2007), petitions for leave to file exceptions denied, M.R. 21894 (Jan. 23, 2008).
After consideration of all the circumstances, we affirm the Hearing Board's findings of fact and findings of misconduct and recommend that the Respondent, Steven Lee Popuch, be suspended from the practice of law for nine months.
Date Entered: 2 November 2010
Bruce J. Meachum