Filed January 4, 2012
In re Michael A. Hall
Commission No. 09 SH 23
Synopsis of Review Board Report and Recommendation
Respondent-Appellee Michael A. Hall was charged with misconduct in a three-count complaint. Specifically, all three counts alleged that he engaged in conversion, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct, and engaged in conduct tending to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770. Count I charged in addition that Respondent failed to promptly deliver funds to his client that he was entitled to receive, in violation of Rule 1.15(b), while Count II also charged that Respondent breached his fiduciary duty to his law firm. Count III further alleged that Respondent failed to keep complete records of account funds, in violation of Rule 1.15(a) and failed to promptly pay or deliver funds to a client that it was entitled to receive, in violation of Rule 1.15(b).
Respondent admitted most of the factual allegations of the complaint and denied some of them. He denied all of the allegations of misconduct.
The Hearing Board found that the Administrator proved all of the allegations of the complaint by clear and convincing evidence, except that there was not sufficient proof that Respondent failed to promptly pay or deliver funds to his client in Count I, or that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in Count III. It recommended that Respondent be suspended for three years, stayed after five months by a two-year period of probation subject to several conditions.
The case was before the Review Board on the exceptions of the Administrator, who objected to the Hearing Board's recommended sanction and argued that Respondent should be suspended for three years. Respondent argued that he had been denied a fair hearing, objected to some of the Hearing Board's evidentiary rulings, and if it affirmed the Hearing Board's findings, Respondent urged the Review Board to censure him or to suspend him for no more than five months, stayed at least in part by probation.
The Review Board affirmed the Hearing Board's findings of fact and the findings of misconduct. It recommended that Respondent be suspended for two years, stayed after one year by a two-year period of probation, subject to the conditions recommended by the Hearing Board.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
MICHAEL A. HALL,
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Hearing Board found that Respondent-Appellee Michael A. Hall engaged in a "pattern of misconduct" much of which was "extremely serious" over a number of years: converting funds from two clients and from the law firm in which he was a partner and using all the funds for his own purposes; engaging in other related dishonest and deceitful conduct as well as negligent conversion; and giving untruthful testimony before the Hearing Board. Concluding that Hall "now understands the importance of not engaging in further misconduct, and that further misconduct would likely end his career" and that "some of his misconduct involved an overall failure to understand and focus on the financial aspects of his practice," the Hearing Board recommended that he be suspended for a period of three years, stayed after five months by a two-year period of probation. What the Hearing Board failed to mention (or presumably to consider) was that throughout most of the years that Hall engaged in this misconduct he also sat as a member of that Hearing Board and ruled on a number of matters including a case involving conversion. The Hearing Board also failed to note that Hall's conversions occurred at times when he was in difficult financial straits.
Upon review, Hall argues that he was denied a fair hearing because of the alleged bias of the Chairman of the Hearing Board. Conversely, he argues that the death of that Chairman before the Hearing Board's Report and Recommendation was issued requires a retrial. He also challenges some evidentiary rulings. The Administrator argues that Respondent should be suspended for three years. Respondent seeks a censure or a suspension for no more than five months stayed in part by probation. We conclude that Respondent's claim of denial of a fair hearing is unsupported in fact or law, that the Hearing Board's evidentiary rulings were either not an abuse of discretion or did not affect the outcome of the trial, and that the Hearing Board's report was issued according to accepted ARDC procedure.
Considering Respondent's considerable pro bono and civic work, the severity and length of his misconduct, Respondent's lack of candor and complete failure to accept genuine responsibility for his acts, and importantly in this particular case, the goal of maintaining public confidence in the legal profession and in its disciplinary system, we recommend that Respondent be suspended for a period of two years stayed after one year by an additional two year period of probation with conditions.
I. EVIDENCE & HEARING BOARD FINDINGS
The Hearing Board found that the Administrator had proved by clear and convincing evidence that Respondent engaged in conversion and in conduct tending to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770, in all three counts of the complaint. It also found sufficient proof that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct in Count I and Count II, breached his fiduciary duty to his law firm in Count II and failed to keep complete records of account
funds and failed to promptly pay or deliver funds to a client that it was entitled to receive, in violation of Rules 1.15(a) and 1.15(b), respectively, in Count III.
A. Count I - Conversion and Dishonest Conduct Regarding Becky Wood
On December 10, 2001 Respondent's cousin, Becky Wood, and her mother, Patsy Russell, sold the Russell family home. Sometime between December 10, 2001 and March 29, 2002, Respondent agreed to hold the $35,409.39 received as proceeds from the sale, subject to further direction from Russell or Wood. Wood asked Respondent to hold the money exclusively for Russell's benefit, and so that Russell would not give the money to other family members. (Russell and Wood will hereinafter be referred to collectively as "Wood.")
On March 29, 2002, Respondent, or someone acting at his direction, deposited the $35,409.39 into the attorney trust account belonging to Johnson, Bunce & Noble, where Respondent was a partner.
By November 4, 2004, Respondent had started his own firm and was no longer a partner at Johnson, Bunce & Noble. Wood asked that the sale proceeds be transferred to his office. Respondent agreed to hold the funds. He received a check from that firm in the amount of $35,409.39 and deposited the Wood funds into his IOLTA account.
Almost immediately he began using the Wood funds for his own purposes. On various occasions between November 8, 2004 and February 28, 2006 Respondent drew checks on his IOLTA account to pay off credit card bills incurred for his personal use and drew checks to himself, thus causing the balance in the account to fall below the $35,409.39 that he was holding on Wood's behalf. By February 28, 2006, the balance in the IOLTA account fell to zero. Respondent admitted that he used all of the funds for his own purposes, that he was "holding"
the funds for Wood, that Wood did not expressly authorize his use of the funds and he did not ask her permission to use them. He testified that he had not committed conversion.
We take judicial notice of the fact that on January 22, 2004, Respondent heard the case of In re Handy (together with Chairman Jack Asher who was also Chair of the Hall panel). The case involved, inter alia, conversion and use of client's funds for the attorney's own purposes. The opinion was issued on September 29, 2004, barely over a month before Hall began using Wood's funds for his own purposes. See, In re Handy, 03 SH 118 (Hearing Bd., Sept. 29, 2004), Administrator's motion to approve and confirm allowed, M.R. 19825 (Jan. 14, 2005). The Review Board may take judicial notice of the public records of the Commission. See, In re Laz, 05 CH 114 (Review Bd., May 9, 2008), Administrator's petition for leave to file exceptions denied, M.R. 22484 (Sept. 17, 2008); In re Berger, 90 CH 236 (Review Bd., Oct. 8, 1993), complaint dismissed.
In January 2007, Wood asked Respondent for $227 from the sale proceeds to purchase renter's insurance for her mother. Respondent gave her a check drawn on the firm's cost account, which was used by Respondent to pay costs associated with his clients' collection matters. Respondent admitted that he caused the notation "Joe Kem," the name of a client of the firm, to be placed on the memo portion of the check and in the office's internal bookkeeping system. Respondent testified that he had "Kem's" name put on the check because it was the "quickest" way to get a check to Wood and he could not notate Wood or her mother because there was no case pertaining to them. Respondent opined that he had not engaged in any professional misconduct involving dishonesty or fraud. The Hearing Board found that Respondent dishonestly and deceitfully provided false information to his bookkeeper and
directed her to place false information on the check in order to deceive her and his wife/law partner as to the check's real purpose.
The Hearing Board also rejected Respondent's claim that he was not acting as an attorney in holding the funds. Wood testified that she gave them to Respondent because he was her cousin and because he was the attorney. He had acted as her attorney on previous occasions. Respondent knew that Wood was acting as trustee of the funds and as such, had a duty to safeguard them.
Respondent returned all of the funds to Wood in early 2007 shortly after his wife and law partner discovered that the firm was holding them and several months after his wife and he had reported the trust account problems that are the subject of Count III. Respondent apparently did not himself have the ability to repay the funds as he borrowed the money from his mother in order to do so.
B. Count II - Conversion and Dishonest Conduct Regarding Amelia Tourtillot1
Amelia Tourtillot ("Tourtillot") was injured in an auto accident on January 29, 2001. Johnson, Bunce & Noble agreed to represent her regarding her claim of personal injury resulting from the accident, and Respondent was the attorney primarily responsible for the case.
Respondent admitted that Johnson, Bunce & Noble agreed to pay the costs associated with Tourtillot's claim, which would be reimbursed from any settlement or verdict in her favor. Nevertheless, as the Hearing Board found, in June 2001, Respondent advised Tourtillot that she needed to pay the filing fees for her case. Tourtillot did not have the money to do so. Tourtillot testified that Respondent said he would get her money from the firm.
Respondent admitted that on or about June 19, 2001, he requested that the firm issue a check to Tourtillot in the amount of $2,500. The check, drawn on Johnson, Bunce &
Noble's operating account, stated "Edna Jenkins Consultation Fee" on the memo line. Jenkins was another of Respondent's clients. Respondent acknowledged that Tourtillot's case and the Jenkins case were not related.
According to Tourtillot, Respondent gave her the $2,500 check and a deposit slip for a bank account that Respondent owned jointly with his wife. He told her to keep $250 for herself and the firm would reimburse itself from the money that she recovered. He told her to put the remainder in Respondent's joint account, and Respondent would take whatever fees were needed from there. Tourtillot testified that on June 21, 2001, she cashed the check and deposited $2,250 in Respondent's account.
Respondent admitted that at various times between June 21, 2001 and June 21, 2002, the balance in the joint account fell below $2,250. On June 21, 2002, the account was overdrawn by $330.68.
Respondent admitted he had directed the accounting department at Johnson, Bunce & Noble to prepare the check to Tourtillot, that the check had nothing to do with the Edna Jenkins matters, and that the check was not for a consultant's fee. Nonetheless, he disputed Tourtillot's testimony and testified to an alternate version of events. Respondent testified that the check to Tourtillot was payment for organizing a large box of files for one of his cases, referred to as the Northern Border Pipeline case. Tourtillot denied having performed any work for Respondent's firm. An attorney at the Johnson firm testified that expenses incurred outside the firm on the Northern Pipeline case had to be approved by the cost-conscious client in advance, that he knew of no expenses for "file reorganization" on that case, and that there were massive amounts of documents in the case. He concluded that it was highly unlikely a box of documents would be allowed to leave the firm as Respondent had testified. For his part,
Respondent could not say what Tourtillot's hourly rate was, how many hours she had worked or even whether she had sent a bill.
The Hearing Board found that Tourtillot's testimony was truthful and accurate and Respondent's testimony was unbelievable and false. It found that Respondent took $2,500 from his firm by the use of deceit and in breach of his fiduciary duty. He converted those funds by having them deposited to his own account and using them for his own purposes and depleting his account.
C. Count III - Conversion and Failure to Maintain Records
On March 4, 2005, Respondent purchased all of the shares of Becker & Litterst, Ltd., a law firm that represented clients with several thousand collection matters. Respondent merged the firm with his own, and named the new firm The Hall Law Group, Ltd. ("Hall Group").
The Hall Group assumed responsibility for three bank accounts that had formerly been maintained by Becker & Litterst. They consisted of an operating account for payment of payroll, daily expenses and other firm expenses; a cost account, for costs expended or advanced on behalf of the firm's client collection matters; and a trust account, to hold funds remitted from collection cases and owed to the firm's various clients.
Between January 18, 2005 and October 2, 2006, Respondent used $57,500 in funds belonging to clients to pay business and personal bills (such as a trip to Las Vegas with friends). The balance in the firm's trust account on October 12, 2006 was $17,263.25. Respondent testified that he did not know the funds were clients' funds, but admitted he should have known. He testified that his problems with the account resulted from his belief in representations made to him by the previous owner of the firm, that there were firm funds as well
as client funds in the trust account—an explanation that the Hearing Board did not accept. The Hearing Board found that Respondent did not review, and in fact did not even ask for records concerning the account when he took it over, and kept no records of the amount he transferred out of the account.
As early as March 2005 the accountant for the Hall Group (and for its predecessor firm) wrote to Respondent stating, inter alia, his concern about the trust account. Respondent never contacted him about the letter. By the summer of 2006 the accountant, Mr. Schmitt, "began to be suspicious" that Hall had taken money out of the account for which he was responsible to clients. The bookkeeper for the Hall Group had informed Schmitt that checks were being written on the trust account that were not based on fees earned.
The Hearing Board stated that the accountant's March 2005 letter "should have put Respondent, or any attorney acting in good faith" on notice that there were issues about the trust account. The Hearing Board concluded that Respondent "did not and does not understand how client and third party funds need to be protected." It rejected Respondent's contention that he had only committed a "technical" conversion. It found that he had been careless and negligent, but without dishonest intent. It also found that he negligently failed to promptly deliver funds to one client.
II. ANALYSIS OF ISSUES ON APPEAL
A. Denial of a Fair Hearing Because of the Bias and Hostility of the Chairman
Fundamental fairness requires that a disciplinary hearing be conducted before a fair and impartial tribunal. In re Betts, 109 Ill. 2d 154, 168, 485 N.E.2d 1081, 92 Ill. Dec. 838 (1985). Objecting to several rulings and comments by the Chairman of the Hearing Board, Respondent argues that they show that he was denied a fair hearing due to the Chairman's bias
and hostility. Because of the alleged "hostile trial environment" Respondent claims he is entitled to a new hearing.
Initially, we observe that Commission Rules 302(f)(6) and (9) provide in part that an appellee's brief shall include "argument, which shall contain the contentions of the parties and the reasons therefore, with citation of the authorities….relied on." Respondent makes numerous objections without citing any authority to support them except for two general propositions. Perhaps most revealing, Respondent could not point to a single fact, either in his brief or during oral argument, that would support or explain the basis or reason for the bias and hostility that he alleges.
Parties filing briefs before the Review Board are expected to comply with the Commission Rules. In re Morton, 98 CH 24 (Review Bd., Oct. 30, 2000), Administrator's motion to approve and confirm allowed, M.R. 17272 (Mar. 22, 2001). Commission Rule 302(i) gives the Review Board the authority to strike any brief, or refuse to review any argument that does not do so. However, because of the severity of the sanction that the Administrator is requesting, we have conducted an independent review of the record and independently researched the issues raised by Respondent, and we will therefore address the more developed of his arguments. See In re Brooks, 05 CH 47 (Review Bd., Dec. 12, 2008), Administrator's petition for leave to file exceptions allowed; sanction modified, M.R. 22933 (Mar. 16, 2009).
Members of a Hearing Board panel sit in the role of a trial court, and claims of bias are assessed accordingly. In re Petrulis, 96 CH 546 (Review Bd., Dec. 9, 1999), petitions for leave to file exceptions denied; Review Board approved and confirmed, M.R. 16556 (June 30, 2000). A trier of fact is presumed to be impartial. Hartnett v. Stack, 241 Ill. App. 3d 157, 169, 607 N.E.2d 703, 180 Ill. Dec. 634 (2nd Dist. 1993), appeal denied, 151 Ill.2d 563, 616 N.E.2d
334, 186 Ill. Dec. 381 (1993). To overcome this, Respondent must demonstrate that there was "active personal animosity, hostility, ill will or distrust" toward him, which prevented or interfered with his right to a fair hearing. People v. Jackson, 250 Ill. App. 3d 192, 620 N.E.2d 1239, 189 Ill. Dec. 922 (1st Dist. 1993). We conclude that Respondent has not met his burden with any of his arguments.
1. Scheduling of the Hearing
On July 31, 2009, Chairman Jack O. Asher scheduled the hearing in this matter for December 3, 2009, despite Respondent's objection that this would not allow him enough time to prepare. Depositions were to be completed by November 13, 2009. Chairman Asher stated that if Respondent filed a motion to postpone the hearing "for valid reasons," he would certainly hear it.
On November 13, 2009, the Administrator added Carolyn Morse, Respondent's former bookkeeper, as a witness. On November 25, 2009, the Administrator added Jennifer Temur, Respondent's former wife, as a witness. The same day, Respondent filed emergency motions to extend the discovery cut-off, to continue the hearing date so that he could depose the new witnesses, and to schedule a pretrial hearing. His motions were denied.
When the parties appeared for hearing on December 3, 2009, Respondent asked the Chairman to reconsider his motion for a continuance. The hearing was continued until April 15, 2010 over the Administrator's objection. Discovery also was extended.
Arguing that the issues were fully set forth in his written motion, Respondent views the Chairman's initial denial as an indication that he did not read the motion. This is purely conjecture. There is nothing in the record to indicate that this was the case, and Respondent points to no evidence to support his argument.
We fail to see the issue here. Respondent eventually got what he wanted, as the hearing was continued and discovery was extended for an additional four months. Whether or not to grant a continuance is entrusted to the discretion of the Hearing Board. In re Smith, 75 Ill. 2d 134, 139, 387 N.E. 2d 316, 25 Ill. Dec. 660 (1979). The Chairman's rulings on Respondent's motions were not an abuse of discretion, and did not deny him a fair hearing.
2. Respondent's Offer of Proof
According to Respondent's Rule 253 Report, he intended to call multiple witnesses to testify, at least in part, to his good character. The Administrator filed a motion to limit the number of character witnesses, arguing that their testimony would be cumulative. Respondent did not reply to the motion, and the Chairman limited him to five character witnesses. Respondent made attempts to vacate/obtain reconsideration of the order, which were unsuccessful, but the Chair agreed that Respondent could make an offer of proof as to what the testimony of the remaining witnesses would be.
Respondent does not object to the refusal to allow his additional witnesses to testify, and, indeed, does not even argue that he was prejudiced by this limitation. Rather, Respondent objects to the manner in which his offer of proof concerning the fourteen character witnesses had to be made, which was after closing arguments, in the presence of only the court reporter and counsel for the Administrator.
When there is no jury involved, the primary purpose of an offer of proof is to preserve the issue. People v. Duarte, 79 Ill. App. 3d 110, 123, 398 N.E.2d 332, 34 Ill. Dec. 657 (1st Dist. 1979). The offer of proof informs the Review Board of the substance of the excluded evidence, so that it is possible to determine whether or not the exclusion was proper. In re LaVelle, 94 CH 187 (Review Bd., Nov. 3, 1995), Administrator's petition for leave to file
exceptions denied, Review Board approved and confirmed, M.R. 11951 (Mar. 26, 1996). In this case the excluded evidence has been preserved. However, because Respondent does not object on appeal to the exclusion of that evidence, the manner in which the offer of proof was made is a trivial if not frivolous issue. Even if this were not the case, Respondent suffered no prejudice.
3. Remarks by the Chairman
Respondent's next objection is, essentially, that he does not like the way he was treated by the Chairman. He argues that the Chairman's rulings on his motions and objections were the result of his "hostility" toward Respondent, but provides no authority that the rulings were incorrect. First, Respondent argues that the Chairman's expression of sympathy to Respondent's wife and cousin, recognizing the difficulty of being called to testify by the Administrator, was prejudicial. Secondly, Respondent's counsel asked to have Matthew Jones, an attorney from Johnson, Bunce & Noble, admonished not to discuss his testimony. The Chairman agreed to do so. On appeal, Respondent objects to the manner in which the admonition was given. Finally, Respondent objects to the Chairman's "hostile" attitude toward his attorney.
Respondent does not indicate who was prejudicially influenced by the Chairman's remarks. As the Chairman observed, the panel members were "all professionals here." A trier of fact is allowed greater latitude in his remarks when there is no jury present. Berg & Associates, Inc. v. Nelsen Steel & Wire Co., 221 Ill. App. 3d 526, 542-43, 580 N.E.2d 1198, 162 Ill. Dec. 779 (1st Dist. 1991). Additionally, triers of fact are presumed to ignore improper remarks. In re Lasica, 07 CH 125 (Review Bd., Jan. 22, 2010), Respondent's petition for leave to file exceptions denied, M.R. 23734 (May 18, 2010).
The fact that the Chairman displayed displeasure or irritation with an attorney's behavior is not necessarily evidence of bias toward the attorney, or his client. People v. Urdiales, 225 Ill.2d 354, 871 N.E.2d 669, 312 Ill. Dec. 876 (2007). In fact, "judicial remarks during the course of trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). As the Review Board noted in addressing a similar objection to the Chairman's comments in In re Petrulis, supra, 96 CH 546, (Review Bd., Dec. 9, 1999), petitions for leave to file exceptions denied; Review Board approved and confirmed, M.R. 16556 (June 30, 2000), while some of the comments might have been intemperate, they "simply represent[ed] the chairman's perspective on the conduct of the case before him," which was "a fair subject of comment."
To establish reversible error, the errors complained of must be substantially prejudicial and thereby unduly influence the outcome of the matter. Schaffner v. Chicago & North Western Transportation Co., 161 Ill. App. 3d 742, 515 N.E.2d 298, 305, 113 Ill. Dec. 489 (1st Dist. 1987), aff'd, 129 Ill.2d 1, 541 N.E.2d 643, 133 Ill. Dec. 432 (1989). In arguing that he was denied a fair trial, Respondent asserts prejudice but makes no suggestion that a different outcome would have resulted if the alleged errors had not occurred. He does not argue that the Hearing Board's findings were against the manifest weight of the evidence. We conclude that Respondent's complaints are meritless and turn to the other issues raised before us.
B. Admission of Respondent's Bank Account Records
Respondent objects to the admission of his joint bank account records, which showed that a $2,250 deposit was made to his account on June 21, 2001, the day upon which Tourtillot testified that she deposited $2,250 from the Johnson, Bunce & Noble check into that
account. We conclude there was no error and even if there had been, any such error would be harmless.
Because the Commerce Bank had initially responded that it had no documents responsive to Administrator's subpoena, Respondent's former wife, Jennifer Temur ("Temur"), requested Clay Unes ("Unes"), the manager of the local Peoria branch of the Commerce Bank to try to obtain their joint account records covering the relevant period. Unes requested the bank's research and records department to retrieve the archived records. He received those records and had them sent to Temur. He testified the bank statements were created in the ordinary course of the bank's business and that it is the regular practice of the bank to provide such statements to their customers. Temur testified that on the same day she received the records, she mailed them to the Administrator without altering them in any way.
Both Unes and Temur testified that they believed that the bank records admitted into evidence were the records that they received but acknowledged that they could not know that for certain. Respondent offered no evidence of alteration. The bank statements were admitted as a business record exception to the hearsay rule over Respondent's objection.
The rationale for that exception is that business records would be useless if they were not accurate, so that the motive to falsify them would be non-existent. Troyan v. Reyes, 367 Ill. App. 3d 729, 734, 855 N.E.2d 967, 305 Ill. Dec. 451 (3rd Dist. 2006). Any person familiar with the business and its mode of operation can provide the foundational requirements necessary for the admission of the records. In re Marriage of Fields, 283 Ill. App. 3d 894, 905, 671 N.E.2d 85, 219 Ill. Dec. 420 (4th Dist. 1996). We conclude sufficient foundational requirements were met and that the Respondent's objections properly address the "weight" to be given the evidence rather than its admissibility. See, e.g., Troyan v.Reyes, supra, 367 Ill.App.3d
at 733, 855 N.E.2d 967, 305 Ill. Dec. 451, ("[t]hat the author of a record does not testify affects only the weight, not admissibility of the evidence.")
Moreover, the admission of improper evidence is harmless where, as here, there is other evidence to support the outcome. Kim v. Nazarian, 216 Ill. App. 3d 818, 828-29, 576 N.E.2d 427, 159 Ill. Dec. 758 (2nd Dist. 1991). Evidence of the deposit shown by the bank records was provided by Tourtillot, a witness that the Hearing Board found to be truthful and accurate. We conclude that the bank records provided support for Tourtillot's testimony, but that the Hearing Board would have reached the same result without them. Indeed, the Board did not refer to those records in its findings on Count II. We conclude that the admission of the records, even if erroneous, would have been harmless error.
C. Administrator's Motion in Limine
On September 10, 2009, the Administrator filed a motion in limine to exclude evidence Respondent intended to present concerning what the Administrator viewed as collateral issues. Respondent filed no response and on September 25, 2009, the motion was granted. Respondent then filed a motion to vacate the order claiming that he did not respond to the motion because he was waiting for the chair to set a briefing schedule. The chair denied the motion to vacate, as well as Respondent's subsequent attempts to have him reconsider the ruling. Respondent argues on appeal that his inability to pursue two lines of questioning contributed to his lack of a fair trial on Count II.
The Hearing Board's decisions regarding the admissibility of evidence are reviewed under an abuse of discretion standard. In re Blank, 145 Ill.2d 534, 554, 585 N.E.2d 105, 165 Ill. Dec. 709 (1991). An abuse of discretion occurs where no reasonable person would agree with the position adopted by the Hearing Board. In re Myers, 99 SH 88 (Review Bd., Aug.
31, 2001), Administrator's petition for leave to file exceptions denied, M.R. 17766 (Jan. 28, 2002).
Respondent points out that Tourtillot acknowledged on cross-examination that she and Temur, Respondent's ex-wife, were best friends, that Temur was the first person she told about the $2,500 check and, although she and Temur saw each other several times each week between 2001 and 2005, Tourtillot never mentioned the check until January 2007.
Respondent objects to the Chairman's refusal to allow him to elicit from Tourtillot that the January 2007 conversation took place shortly after a court had ruled against Temur in a very contentious proceeding in which Temur sought to remove the minor children from the state. Respondent's theory apparently was that Tourtillot was biased against him because he prevailed over her best friend in the custody matter. Also, according to Respondent's offer of proof, Tourtillot became upset when she learned that Temur told her attorney in the custody dispute about the check. Respondent views this as evidence that Tourtillot made up the story, but could not take it back once a request for investigation had been filed with the ARDC by Temur's attorney. The Chairman ruled these statements made several years beforehand, about an incident that occurred years earlier, were too remote in time and not of sufficient probative value.
As we previously held in In re Ducey, 01 SH 118 (Review Bd., Sept. 8, 2006), Administrator's petition for leave to file exceptions allowed; sanction modified, M.R. 21234 (Sept. 18, 2007),
It is beyond dispute that a respondent is entitled to explore a witness's potential bias against him. Stenger v. Germanos, 265 Ill. App. 3d 942, 948, 639 N.E.2d 179, 203 Ill. Dec. 140 (1st Dist. 1994). However, evidence indicating ill feeling on the part of a witness must be "direct and positive, rather than remote and
uncertain." Healy v. Bearco Management, Inc., 216 Ill. App. 3d 945, 958, 576 N.E.2d 1195, 160 Ill. Dec. 241 (2nd Dist. 1991).
We conclude that Respondent's theory as to Tourtillot's possible bias against him was speculative at best. The Hearing Board's refusal to admit this evidence was not an abuse of discretion.
At the time of the misconduct complained of in Count II, Respondent was engaged in a campaign for Circuit Court judge. Respondent's final argument is that the testimony of his campaign manager as to the "intense scrutiny" that he was under because of the campaign would somehow have been relevant to show that he would not have converted funds from his law firm at that time.
Relevant evidence is any evidence having a tendency "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In re Elias, 114 Ill.2d 321, 334, 499 N.E.2d 1327, 102 Ill. Dec. 314 (1986). It simply does not follow that the possibility of scrutiny would have made him adhere to the rules of professional responsibility. The exclusion of this evidence was not an abuse of discretion.
D. Death of Chairman Asher
Finally, Respondent claims that a new trial is required due to the death of Chairman Asher after he had presided over the pretrial matters and two-day hearing, but before the Hearing Board's Report and Recommendation was issued. Respondent contends that "no rule of the Commission or of the Supreme Court authorizes issuance of a Hearing Board's Report and Recommendation without participation or approval (or dissent) from a Hearing Board Panel member who attended the trial."
As the Hearing Board's Report and Recommendation makes clear, those were not the circumstances of this case. The Report, signed by the remaining panel members, notes: "Jack O. Asher served as Chair of the Hearing Panel through the deliberations of this case, and concurred in the findings of misconduct and the recommended sanction. However, Mr. Asher died before the Report and Recommendation was prepared." This same procedure was previously followed by the Review Board upon the death of its chairman. See, In re Mann, 06 CH 38 (Review Board, Mar. 29, 2010), Respondent's petition for leave to file exceptions denied, M.R. 23935 (Sept. 20, 2010). Respondent's argument that Chairman Asher might have subsequently changed his mind, and persuaded another panel member to do so as well, is complete conjecture.
Respondent's argument is also incorrect. Commission Rule 753(c)(2) provides in part that the Hearing Board "may act in panels of not less than three members each, as designated by the Commission….The majority of a panel shall consist of a quorum and the concurrence of a majority shall be necessary to a decision." The report in In re Smith, 04 CH 64 (Review Bd., Sept. 14, 2006), Administrator's petition for leave to file exceptions allowed; sanction modified, M.R. 21240 (Jan. 12, 2007), was issued under authority of Commission Rule 753(d)(1), a provision similar to Rule 753(c)(2). In that case, former Review Board member Cheryl I. Niro participated in the oral argument, but resigned from the board after she was appointed to another position by the Supreme Court. Smith was issued with the concurrence and under the signature of the remaining panel members.
We conclude the Report of the Hearing Board was properly issued.
Finally, we consider the appropriate sanction. The Hearing Board recommended that the Respondent be suspended for three years, stayed after five months by two years of probation subject to certain conditions. That recommendation is advisory only. In re Hopper, 85 Ill.2d 318, 325, 423 N.E.2d 900, 53 Ill. Dec. 231 (1981). In making its own recommendation, the Review Board must consider the case based on its own particular facts and circumstances, yet 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 Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300, 191 Ill. Dec. 55 (1993). Mitigating and aggravating factors are also relevant. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526, 164 Ill. Dec. 610 (1991).
Respondent's misconduct is extremely serious. As described in detail above, from 2004-2007 he converted $35,409.39 that he had agreed to hold in his trust account for Wood and engaged in fraud and deceit to do so (Count I); in 2001 he knowingly converted $2,500 from the law firm in which he was a partner and again used deceitful means to do so (Count II); and between 2005 and October 2006 (when much of his misconduct came to light) he negligently converted $57,500 belonging to numerous clients while falsely claiming that he was told that the trust account held firm funds as well as client funds. In all of the foregoing instances he used the converted funds for his own purposes.
Moreover, although the Hearing Board made no finding in this regard, it seems clear that Respondent was in difficult and stressed financial straits at the time of the conversions. Respondent wrote a series of Wood trust account checks to himself and to credit card companies from November 2004 through August 2005 until the funds were depleted. After his wife/partner
discovered this trust account discrepancy, Respondent repaid Wood the $35,409 with two checks written on the account of Respondent's mother from whom he had to borrow the funds. Between March 2005 and October 2006 Respondent also converted $57,500 of collection clients' funds to pay his business and personal bills. He lost "one big client" and was unable to pay his debt to the former owner of the collection business. The bookkeeper testified that there were times if they "didn't have enough money in the operating account for payroll, he would ask me to transfer money from the trust account to the operating account." By October 2006, when Respondent's wife learned of these problems after discussions with the accountant, the trust account had dropped to $17,000. Respondent's wife/law partner arranged for $30,000 to be deposited into the trust account by borrowing on a line of credit.
A. Evidence in Mitigation
Respondent presented considerable evidence of civic and pro bono work. The Hearing Board concluded that he had provided extensive service to the legal profession. He has been very active in the Illinois State Bar Association and the Peoria County Bar Association. Respondent has performed pro bono work in divorce matters for Prairie State Legal Services since 1992. He was a volunteer judge in the Illinois State University mock trial competition, taught trial advocacy there and coached the mock trial teams. He has done pro bono legal work for the Peoria Chamber of Commerce and chaired the Rotary committee's program to tutor children in reading. At the end of his chairmanship, he continued as a tutor. Respondent also volunteers with Big Brothers, Big Sisters and coaches several youth sports.
Five witnesses testified as to Respondent's good reputation for truth in the Peoria business and legal community. Finally, he has not previously been disciplined in almost twenty years in practice.
B. Evidence in Aggravation
As noted above Respondent sat for a number of years as a member of the ARDC Hearing Board. Indeed, he had served alongside the Chair of the panel that heard his own disciplinary case. Not long before the conversions in Count I and Count III, Respondent was part of the panel that issued the Report and Recommendation in the case of In re Handy, supra, 03 SH 118 (Hearing Bd., Sept. 29, 2004), Administrator's motion to approve and confirm allowed, M.R. 19825 (Jan. 14, 2005), which recommended discipline for conversion and other misconduct. The panel commented that it "is well-established that funds an attorney receives on behalf of a client for a specific purpose must be held by the attorney and used only for the specific purpose." Id. at 31.
In our opinion, Respondent's years of sitting in judgment of other attorneys should have given him a heightened awareness of the need to comply with the Rules of Professional Conduct where his clients' money was concerned and to avoid dishonest behavior. Sadly, it did not. See In re Bush, 09 CH 113 (Hearing Bd., Nov. 1, 2010) ("In aggravation we also consider that during much of the time Respondent engaged in misconduct he served as assistant State's Attorney….As a public official prosecuting crimes, Respondent should have been particularly sensitive to the impropriety of his conduct, …and the potential for damage to the reputation of his public office.").
The foregoing is of concern for two reasons. First, Respondent's ability to turn a blind eye to his own conduct is troubling. The disconnect between his ARDC work and his own concurrent misdeeds, as well as his almost complete inability or unwillingness to accept responsibility for his actions or express remorse, suggests that the public may well need protection from Respondent. Throughout the hearing he denied any misconduct and offered
excuses or explanations that the Board rejected as simply not believable. When asked by his attorney at the end of his examination if Respondent had anything to tell the panel, Respondent replied only that he "deeply regretted" his self-styled "technical conversion."
Secondly, that a Hearing Board member could engage in a pattern of serious misconduct from 2004-2007 while serving on Panels must surely impact the public's confidence in the legal profession and also negatively impact the public's view of the legal disciplinary system. In re Bush, Id., 09 CH 113 (Hearing Bd., Nov. 1, 2010).
There was additional aggravation in Respondent's lack of candor and lack of remorse before the Board.
C. The Appropriate Sanction
The discipline imposed for conversion "ranges from censure for a first offense with significant mitigating circumstances….to disbarment in cases involving a number of violations and lacking mitigating circumstances." In re Merriwether, 138 Ill.2d 191, 200, 561 N.E.2d 662, 149 Ill. Dec. 292 (1990). The Administrator argues that Respondent should be suspended for three years, but that probation is not appropriate in this case. Respondent urges us to censure him or suspend him for no more than five months, stayed at least in part by probation. We conclude that a suspension of two years duration, stayed after one year by two years of probation with conditions is warranted. See, In Re Laz, supra, 05 CH 114 (Review Bd., May 9, 2008), Administrator's petition for leave to file exceptions denied, M.R. 22484 (Sept. 17, 2008), (rejecting the view that dishonest misconduct precludes probation:
"[T]he Administrator's argument that Laz's misconduct is not of a type that can be monitored or prevented seems to focus solely on the probation portion of the.…recommendation while ignoring.…that Laz's license would be suspended for a period of time before the probationary period would began We determine that a period of actual suspension followed by probation adequately addresses the severity of Laz's misconduct as well as the need for further assistance to prevent further misconduct.")
We differ with the Hearing Board in its determination that the facts of this case warrant an actual suspension of only five months. We believe the Hearing Board failed to give sufficient weight to the fact that Respondent showed no real remorse, gave false and unbelievable testimony, denied all his misconduct, used deceitful means to hide his misconduct, and took no genuine responsibility for his actions. Instead the Hearing Board came to the conclusion, unsupported by Respondent's testimony, that "Respondent now understands the importance of not engaging in further misconduct and that further misconduct would end his career."
The Hearing Board also failed to take into consideration the negative effect on the public's perception of the legal profession and its disciplinary system of giving such a relatively brief period of actual suspension to an attorney who had served on the same Hearing Board. We believe a significant period of actual suspension will serve to protect the public, give Respondent time to reflect on his misconduct and his future path, and promote public confidence in the legal profession.
The facts of this case could support a variety of sanctions that would fall within the parameters set by prior conversion cases. All the converted funds, exceeding $90,000, were used for Respondent's benefit at a time when he was in difficult financial straits and the misconduct took place over several years. Yet all clients were repaid promptly, by means of loans, save one for whom a computer error caused a delay in receipt of $1,500. Counts I and II
clearly involved purposeful conversions and deceitful conduct. Count III, the Hearing Board found, involved no "fraudulent or deceitful intent" and resulted from the fact that Respondent "does not understand how client funds need to be protected" or what records must be maintained for a trust account. The Administrator did not take exception to this finding and, although it is a close call (Respondent ignored some very red flags), we cannot say that this finding was against the manifest weight of the evidence. See, In re Mulroe, ___ Ill.2d ___, ___, 956 N.E.2d 422, 428, 353 Ill. Dec. 560 (2011), (declining "to craft a bright line rule that reckless conversion creates a presumption of dishonesty"). We also believe that Respondent's very substantial and long-standing civic and pro bono service should weigh in his favor.
As our Supreme Court stated: "We recognize that there are cases where the suspensions have been lengthier and other cases where suspensions have been shorter. Although we use those sanctions imposed in cases previously before us as a guide, we consider the unique facts and circumstances surrounding this case to make our decision." In Re Cutright, 233 Ill.2d 474, 493, 910 N.E.2d 581, 331 Ill. Dec. 172 (2009).
Under the facts of this case we conclude that the appropriate sanction should includes a significant period of probation with conditions. The many factual findings concerning Respondent's ignorance of proper record keeping requirements suggest that when Respondent resumes practice he will require supervision. Probation is a useful tool where, as here, an attorney's practice needs to be monitored or limited, in order to allow him to improve the skills necessary for a successful and ethical practice. In re Jordan, 157 Ill.2d 266, 275, 623 N.E.2d 1372, 191 Ill. Dec. 486 (1993).
After consideration of all the circumstances, we affirm the Hearing Board's factual findings and findings of misconduct and recommend that the Respondent, Michael A.
Hall, be suspended from the practice of law for a period of two years, stayed after one year by a two-year period of probation subject to the conditions recommended by the Hearing Board.
Date Entered: 4 January 2012
Chrystel L. Gavlin
1 Although known as Amelia J. Menke at the time of the hearing, the witness is referred to herein as Amelia Tourtillot, her name at the time of the misconduct.
2 Respondent's conclusion is that if the Review Board does not grant him a new hearing, it should find the Hearing Board's determination of misconduct in Counts I and II to be unsubstantiated, but he does not argue that point in his brief.
3 Panel member Thomas A. Zimmerman, Jr. participated in the deliberation and decision in this case prior to the expiration of his term as a member of the Review Board.