Filed February 10, 2012
In Re David Milton Svec
Commission No. 09 CH 28
Synopsis of Review Board Report and Recommendation
This matter arises from a one-count complaint alleging that Respondent engaged in misconduct as a result of his actions in drafting wills and a trust agreement for clients John and Stephania Anderson, in which Respondent and/or Respondent's wife were named as beneficiaries. The Hearing Board found that the Administrator failed to meet his burden of proof that Respondent engaged in misconduct and recommended that the complaint against Respondent be dismissed. In so concluding, the Hearing Board applied the 2010 version of Rule 1.8(c) of the Illinois Rules of Professional Conduct to Respondent's conduct and found that because Respondent had a close, familial relationship with the clients and had detached advice from another lawyer, there was no violation of the rules. In addition, the Hearing Board found that Respondent acted in the best interest of his client.
On review, the Administrator asked this Board to find that the Hearing Board erred in its conclusions finding no misconduct. Specifically, the Administrator contended that Respondent breached his fiduciary duty and violated Rules 1.8(c), 1.7(b) and 8.4(a)(5) of the 1990 Illinois Rules of Professional Conduct, the rules in effect at the time of the Respondent's representation of the Andersons. The Administrator asked the Review Board to recommend that Respondent be censured. The Respondent asked the Review Board to approve the Hearing Board findings and recommendation of dismissal.
The Review Board found that the Hearing Board should have applied the 1990 Rules and that the Respondent clearly violated Rule 1.8(c) with respect to the drafting of one trust agreement in 2006 in which the Respondent's wife was named a beneficiary. With respect to the other alleged violations, the Review Board concluded that the Hearing Board's findings were not against the manifest weight of the evidence. In light of the substantial evidence in mitigation, including the evidence that Respondent had a close relationship with the client and was abiding by the client's wishes, the Review Board recommended that Respondent be censured.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
DAVID MILTON SVEC,
Commission No. 09 CH 28
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter arises from a one-count complaint filed against David Milton Svec, alleging that he engaged in misconduct as a result of his actions in drafting wills and trust agreements for clients John and Stephania Anderson, in which Respondent and/or Respondent's wife were named as beneficiaries. This matter was previously the subject of a petition for discipline on consent, with both parties recommending that Respondent be censured. The petition was denied by the Supreme Court and the matter was remanded for a hearing.
After a hearing which included the Respondent's testimony, the Hearing Board recommended that the allegations of the Complaint against Respondent be dismissed finding that the Administrator failed to meet his burden of proof by clear and convincing evidence. The Hearing Board found that Respondent had acted in the best interest of his clients. The Hearing Board retroactively applied the 2010 version of the Illinois Rules of Professional Conduct ("Rules") to Respondent's conduct and found that because Respondent had a close, familial relationship with the clients and had provided detached advice from another lawyer, there was no
breach of fiduciary duty or violation of Rule 1.8(c) and other rules the complaint alleged the Respondent violated.
The Administrator filed exceptions to the Hearing Board's Report, asking that this Board to find that Respondent breached his fiduciary duty and violated 1.8(c), 1.7(b) and 8.4(a)(5) of the 1990 Rules in effect at the time of the Respondent's representation of the Andersons. In his initial brief before this Board, the Administrator asked the Review Board to recommend a ninety day suspension, but in light of two cases recently decided by the Illinois Supreme Court, In re Mason, 09 CH 15, (Review Bd., Sept. 2, 2011), recommendation adopted, No. M.R. 24927 (Nov. 22, 2011) and In re Peters, 09 SH 43 (Review Board, Sept. 2, 2011), Administrator's petition for leave to file exceptions denied, No. M.R. 24928 (Nov. 22, 2011), the Administrator now asks this Board to recommend to the Court that Respondent be censured. Respondent asks this Board to approve the Hearing Board findings and recommendation of dismissal.
As explained below, we find that the Hearing Board should have applied the 1990 Rules and that the Respondent clearly violated Rule 1.8(c). With respect to the other alleged violations, we find that the Hearing Board's findings are not against the manifest weight of the evidence. We also agree with the Administrator that a censure is an appropriate sanction.
EVIDENCE AND HEARING BOARD FINDINGS
Respondent was admitted to the bar in 1980. He initially worked for his father until 1985, when he opened his own practice. He practices in Westchester, Illinois. He has a general practice in estate planning, probate, real estate, collection and criminal law.
John and Stephania Anderson built a home next to Respondent's parents' home in Oak Brook when Respondent was seven years old. The Svec family became friends with the
Anderson family, attending neighborhood parties together. Respondent's father became the Andersons' attorney. Respondent moved out of his parents' home in 1982, but he continued to often visit with the Andersons when he visited his parents.
In 1986, Respondent and his wife had their first child, and Respondent's wife Gay decided to stay at home to care for her son. She took a job cleaning Mrs. Anderson's house once a week and brought her son along with her. Mrs. Anderson would watch the baby while Gay Svec cleaned the home and prepared lunch. They had lunch together and talked. This arrangement continued until the Svecs had their second son in 1990. After 1990, Gay Svec and Mrs. Anderson continued to communicate and Gay Svec occasionally bought small gifts for Mrs. Anderson.
In 1988, Respondent's father passed away. Following his father's death, the Andersons asked Respondent to prepare their wills. The Andersons had no living children and they wanted to leave Respondent certain items of personal property having sentimental value. While Respondent had a "gut reaction" that preparing such a bequest did not look good, he said he tried to "resolve that issue by getting instructions in writing from the Andersons." Respondent stated he did not want to hurt the Andersons' feelings by refusing to accept the bequests. The written instructions confirmed the Andersons' desire to make the bequests to Respondent. Each will left the estate to the testator's spouse and, if the spouse predeceased the testator, then Respondent would receive:
all garden tools; all work tools, both hand and power ; all kitchen dishes, glasses, utensils, linens, pots and pans, spices, and canned food; all food stuffs in the basement; all furs, clocks, television sets and oriental rugs; and his choice of one of the automobiles owned by me, if any at the time of my death; provided, however, that in the event DAVID M. SVEC should predecease me, I give the aforesaid
items of personal property to GAY SVEC, and in the event GAY SVEC should also predecease me, I give the aforesaid items of personal property to the heirs of DAVID M. SVEC'S body, per stirpes.
The wills also bequeathed personal property to the Andersons' niece, Gloria Renger, and to their nephew, Jerome Renger. In 1990 and 1995, Respondent drafted amended wills for the Andersons, which contained the same bequests to Respondent and his wife. Respondent did not think he had expressed any reservations about the bequests to his clients because he had gone over it the first time. At the time he drafted the three wills, Respondent was unaware of the Rules of Professional of Responsibility, but believed at that time that having the clients put their intentions in writing would cover any ethical issues.
Mr. Anderson passed away in 2000, and Mrs. Anderson inherited all of his property pursuant to the terms of his will. In November 2000, Respondent prepared a will and trust for Mrs. Anderson. Pursuant to the will, all of Mrs. Anderson's assets were to pass into the trust. Under the terms of the trust, Mrs. Anderson left all of her assets, including the assets previously left to Respondent, to her niece, Gloria Renger.
After Mr. Anderson's death, Mr. Urban, a neighbor of the Andersons, helped Mrs. Anderson by taking out her garbage, visiting her, paying her bills, and helping with chores around her home. Mr. Urban had known the Andersons since 1975, and Mr. Anderson had made Mr. Urban his attorney-in-fact for health care and financial matters.
In May 2005, Mrs. Anderson fell in her home and called Mr. Urban. She was taken to the hospital, suffered a small heart attack, and sank into a coma. Mr. Urban remembered that Respondent was Mrs. Anderson's attorney and he called Respondent. Together, they called Ms. Anderson's niece, Gloria Renger, who lived in Ohio. They asked her to come to Chicago to help care for Mrs. Anderson. She agreed if she received sufficient funds
from Mrs. Anderson to keep her apartment in Ohio. She then moved into Mrs. Anderson's home.
When Mrs. Anderson's health improved enough to allow for discharge from the hospital, with Respondent's assistance she entered a nursing home called Manor Care in Hinsdale, Illinois. At first, the relationship between Mrs. Anderson and Ms. Renger was pleasant, but over the course of the next year, the relationship deteriorated. Ms. Renger visited infrequently, even though Mrs. Anderson had purchased a car for her and the nursing home was not far from the house. Ms. Renger did not want Mrs. Anderson to come home from Manor Care, and in August 2006, she stopped visiting her.
At about this time, Mrs. Anderson instructed Respondent to write to Ms. Renger and ask her to produce bank statements, credit card bills, and telephone bills. She refused, and Respondent took steps to have her name removed from Mrs. Anderson's accounts. Mrs. Anderson, through Respondent, then asked Ms. Renger to move out of her house. Ms. Renger met with Mr. Urban in December 2006 and gave him all of the checkbooks and financial items, and she returned to Ohio. Mr. Urban testified that while Mrs. Anderson was in the nursing home, her mental health remained good, stating that she was "as sharp as a tack."
Mrs. Anderson decided to disinherit her niece. She asked the Respondent to draft a trust agreement leaving portions of her estate to various institutions and individuals other than Mrs. Renger. She expressed a desire to give Respondent ten percent of her estate. He told her he did not want to do that as it would lead to a dispute with Ms. Renger. Mrs. Anderson then instructed him to make his wife a ten percent beneficiary. He told Mrs. Anderson he would think about it. He testified that he did not think he could decline a client's gift to his wife.
In December 2006, Respondent drafted a first amendment to Mrs. Anderson's trust. It left ten percent of the residuary of the estate to the Respondent's wife. The trust no longer named Gloria Renger as a beneficiary. Mr. Urban was designated the executor of the estate. On December 19, 2006, Respondent brought his secretary, Michelle Weeks and Richard Rock, an attorney with whom he had shared office space for a long time, to witness the execution of the amendment. Respondent went over the documents with Mrs. Anderson while Ms. Weeks and Mr. Rock observed. Respondent then left the room. Mr. Rock read the agreement again to Mrs. Anderson, including the provision making Respondent's wife a ten percent beneficiary. Both Weeks and Rock observed that Mrs. Anderson was alert and seemed of sound mental health. Mrs. Anderson confirmed that the amendments were her wishes and that the document accurately reflected what she wanted. Rock testified that Mrs. Anderson stated that she knew some of her family members would not be happy with changes that she made. Rock's testimony generally corroborated Respondent's that he was concerned about claims of "undue influence", had discussed the possibility of a will contest with the Andersons and they told him to proceed nonetheless.
Mrs. Anderson returned home for a couple of weeks in early 2007. Respondent and Mr. Urban built a handicap ramp for her to enter the home and they arranged for her care at her home. A couple of weeks after returning home, Mrs. Anderson fell ill. She called Respondent, who instructed her to go to the hospital. Respondent and his wife went to the hospital's emergency room and waited there until late that night. The next morning they returned to the hospital and were informed that Mrs. Anderson was in a coma. She died later that day.
At the time of her death, her estate was worth approximately $1.28 million. Accordingly, the bequest to Respondent's wife was worth approximately $128,000. Ms. Svec testified that she did not learn until after Mrs. Anderson died that she was named as a beneficiary of the trust. Respondent testified that when he drafted the trust amendment he did not know the value of his wife's bequest.
Ms. Renger filed a will contest. She raised two issues—whether Mrs. Anderson had the requisite mental capacity to make the trust amendment and whether Respondent had exerted undue influence in preparing the trust amendment. At the time of the disciplinary hearing, Respondent's wife had proposed to renounce the gift from Ms. Anderson and based on the comments at oral argument before this Board, it appears Ms. Svec did renounce her bequest.
The Hearing Board applied the 2010 version of Rule 1.8(c) which prohibits a lawyer from preparing on behalf of a client an instrument giving the lawyer or person related to the lawyer a "substantial gift unless the lawyer or other recipient of the gift is related to the client" or "maintains a close familial relationship" to the client and found that the Administrator failed to meet his burden of proof by clear and convincing evidence.
Because the Hearing Board found that because there was a close, familial relationship between Respondent and the Andersons, there was no violation of the Rule 1.8(c) or other rules. In addition, the Hearing Board noted that Comment 7 to the new Rule 1.8 states, "If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance the client should have the detached advice that another lawyer can provide. The sole exception to this Rule is where the client is a relative of the donee." The Hearing Board concluded that when Richard Rock, a lawyer in Respondent's office, met with Mrs. Anderson to
confirm her wishes and her competency at Respondent's request, Rock gave the detached advice within the meaning of the new rule. The Hearing Board summarized the case as follows:
"We find that Respondent acted in the best interest of his client. And while Respondent was unaware of the Rules of Professional Conduct relating to this issue, Respondent acted in the spirit of the rule by discussing his reservations with his client regarding himself and his wife as beneficiaries, by documenting his client's intent and by bringing another attorney to his client to explain the contents of the documents and affirm her understanding and competency."
ANALYSIS OF ISSUES ON APPEAL
A. Respondent Violated Rule 1.8 (c) of the 1990 Rules
Respondent's conduct in this matter was governed by the 1990 Rules. Respondent represented Mrs. Anderson from 1988 to 2006, well before the adoption of the 2010 Rules. The Illinois Supreme Court, when adopting the revised rules, stated that the 2010 Rules would become effective on January 1, 2010. The Court did not make the rules retroactive. Indeed, each rule in the 2010 Rules is followed by the language, "Adopted July 1, 2009, effective January 1, 2010." Accordingly, the 1990 Rules have been applied to attorneys' conduct that occurred prior to January 1, 2010. In re Peters, 09 SH 43 (Review Board, Sept. 2, 2011), Administrator's petition for leave to file exceptions denied, No. M.R. 24928 (Nov. 22, 2011). The same analysis was used when the 1990 Rules were adopted. See, e.g., In re Samuels, 126 Ill. 2d 509, 522-525, 535 N.E.2d 808 (1989); In re Broussard, 93 CH 310, petition to impose discipline on consent allowed, No. M.R. 9259 (July 8, 1993). There is simply no legal basis for the retroactive application of the 2010 Rules.
Rule 1.8(c) of the 1990 Rules provided, "A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to
the donee." The Administrator argues that Respondent violated the Rule in 1995 when he drafted the wills for the Andersons and in 2006 when he drafted the amendment to the trust for Mrs. Anderson. The 1995 wills left mostly personal items to Respondent, including his choice of one of two automobiles. The Administrator failed to offer any proof as to the value of these personal items. The proof however is clear with respect to the 2006 amendment to Mrs. Anderson's trust. It bequeathed to Respondent's wife ten percent of the value of the Anderson estate, a gift that amounted to approximately $128,000. We find this is a "substantial gift" within the meaning of Rule 1.8(c). Since Gay Svec was "not related" to Mrs. Anderson we must conclude that Respondent did in fact violate Rule 1.8(c).
Respondent's actions are quite similar to the actions of two attorneys who were recently subject to discipline by the Supreme Court for violating the 1990 version of Rule 1.8(c). In In re Peters, supra, 09 SH 43 (Review Board, Sept. 2, 2011), Administrator's petition for leave to file exceptions denied, No. M.R. 24928 (Nov. 22, 2011), the attorney was found to have violated Rule 1.8(c) when he drafted wills for his client, a longtime friend with whom he regularly socialized, by which the client bequeathed fifteen percent of his estate's residuary assets to Mr. Peter's wife. Likewise, the respondent in In re Mason, 09 CH 15, (Review Bd., Sept. 2, 2011), recommendation adopted, No. M.R. 24927 (Nov. 22, 2011) was found to have a "close, nurturing, and familial relationship" with his client, but was found to have violated the 1990 version of Rule 1.8(c) because he drafted wills for the client by which he was given gifts totaling $75,000.
B. The Hearing Board's Other Findings of No Misconduct
Are Not Against
the Manifest Weight of the Evidence Or Wrong as a Matter of Law
The Administrator asks this Board to reverse the Hearing Board's conclusion that Respondent did not violate Rules 1.7(b) and 8.4(a)(5) nor breach fiduciary duties "not for purposes of an increased sanction" but because logic requires it. We disagree.
1. Rule 1.7(b)
Rule 1.7(b) has express elements each of which must be proved by clear and convincing evidence. This the Administrator failed to do. Rule 1.7 (b) provides, "A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected, and (2) the client consents after disclosure." A lawyer can violate Rule 1.8(c) and not violate Rule 1.7(b) as In re Peters, supra, 09 SH 43 (Review Board, Sept. 2, 2011), Administrator's petition for leave to file exceptions denied, No. M.R. 24928 (Nov. 22, 2011), demonstrates. This Board found that Mr. Peters, by drafting a will in which his wife received a bequest, violated Rule 1.8(c) but not Rule 1.7(b). The evidence in the Peters matter demonstrated that Peters obtained the consent of his client after disclosure, and therefore did not violate Rule 1.7(b).
As in all disciplinary cases, the Administrator has the burden of proving the elements of a violation of a rule by clear and convincing evidence. In re Timpone, 208 Ill.2d 371, 380, 804 N.E.2d 560, 566 (2004). A Hearing Board's findings of fact will note be reversed unless they are against the manifest weight of evidence. In re Winthrop, 219 Ill.2d 526, 542-43, 848 N.E.2d 961 (2006). At the hearing in this matter, the Administrator had the burden to prove all of the elements of a violation of Rule 1.7(b). The Administrator's proof that Mrs. Anderson did not consent after disclosure was not clear and convincing. At oral argument the
Administrator argued to this panel that the "disclosure" required obligated the Respondent to inform Mrs. Anderson that her estate plan might be jeopardized by a gift to the Respondent or his wife. Rock's testimony that Mrs. Anderson was aware that people would be unhappy with her changes to her trust corroborated Respondent's testimony that he had discussed the potential for a will contest with the Andersons who instructed him to proceed nonetheless. At the hearing the Chairman of the Hearing Board panel stated that they would be accepting as fact that Mrs. Anderson knew of the possibility of a "fight upon her death" and asked counsel for the Administrator if she agreed that that evidence would not be refuted. Counsel agreed. Accordingly, we decline to reverse the findings of the Hearing Board that Respondent did not violate Rule 1.7(b) as against the manifest weight of the evidence.
2. Breach of Fiduciary Duty
The Administrator also contends that the Hearing Board erred in failing to conclude that the Respondent breached his fiduciary duties to his client. The Administrator contends that whenever an attorney engages in a conflict of interest, the attorney also automatically breaches his fiduciary duties to his client. In support, the Administrator relies solely on the Review Board report in In re Cutright, 05 SH 106 (Review Bd., March 17, 2008) at 7, findings of misconduct affirmed, 233 Ill.2d 474, 910 N.E.2d 581(2009), where this Board noted that a lawyer's fiduciary duty to a client is broad and includes a "duty to avoid conflicts of interest." Mr. Cutright's actions did not involve a violation of Rule 1.8(c). While we agree that a lawyer's fiduciary duty includes an obligation to avoid conflicts, it does not follow that all violations of Rule 1.8(c) are breaches of fiduciary duty. The Administrator fails to cite to any authority for such a legal principle and we note that the Administrator has previously elected to charge an attorney with a violation of Rule 1.8(c) but has not charged the attorney with violating
his or her fiduciary duties. See, e.g., In re Peters, supra, 09 SH 43 (Review Board, Sept. 2, 2011), Administrator's petition for leave to file exceptions denied, No. M.R. 24928 (Nov. 22, 2011). Clearly the Administrator must believe that there are matters in which an attorney engages in a conflict of interest pursuant to Rule 1.8(c) but has not violated his or her fiduciary duties. We believe this is such a case.
At hearing and in his brief before this Board, the Administrator failed to demonstrate Respondent breached his fiduciary duties to Mrs. Anderson. The undisputed evidence at hearing demonstrated that Respondent, although ignorant of the rule governing his own conduct, acted in accordance with the wishes of his client, Mrs. Anderson, after discussing the possible consequences. The Hearing Board specifically concluded that Respondent acted in Mrs. Anderson's best interests, a conclusion that is clearly inconsistent with a finding of a breach of a fiduciary duty. We decline to reverse the findings of the Hearing Board and conclude that Respondent did not violate his fiduciary duties to Ms. Anderson and that the Hearing Board's findings are not against the manifest weight of the evidence or wrong as a matter of law.
3. Rule 8.4(a)(5)
The Administrator also submits that Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) because Gloria Renger, Mrs. Anderson's niece, initiated a will contest after Mrs. Anderson's death. However, the Hearing Board's finding that the Administrator failed to prove that Respondent's actions caused Ms. Renger to file the action is not against the manifest weight of evidence. Indeed, the overwhelming evidence presented at the hearing, not only by Respondent's testimony but also by the testimony of Mr. Rock and Mr. Urban, suggested that Ms. Renger would have filed a will contest even if Mrs. Anderson had not made the bequest to Respondent's wife. Ms. Renger, who
had disagreements with the decedent over the handling of Mrs. Anderson's finances and care, was disinherited by the trust amendments. Mrs. Renger never testified in this proceeding. The evidence shows Mrs. Renger as a demanding person interested in money more than her aunt's well-being demonstrating the decision to disinherit as the cause for her to contest the trust amendment on the grounds of lack of competency. Put another way, it seems likely that even without the gift to Respondent, Mrs. Renger would have mounted a legal challenge. We can only speculate. Therefore, we find no basis for reversing the Hearing Board's conclusion that the Administrator failed to prove by clear and convincing evidence that Respondent violated Rule 8.4(a)(5).
The Hearing Board dismissed the charges against Respondent and found that no sanction was necessary. We have concluded that Respondent violated Rule 1.8(c) and there is simply no excuse for Respondent's ignorance of a rule so central to his practice. Hence we conclude that a sanction is warranted. However, we seek to recommend a sanction that is consistent with sanctions imposed in similar cases, In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993), while also considering the unique circumstances of each case, including the nature of the misconduct and any factors in aggravation and mitigation. In re Witt, 145 Ill.2d 380, 398, 583 N.E.2d 526 (1991).
At the outset, it is important to note that the Administrator does not contend, nor does the evidence support, that Respondent engaged in overreaching or undue influence in including the bequest to his wife in the trust amendments. The undisputed evidence showed that Mrs. Anderson was of sound mind when she made the desired changes to her trust. She had a close relationship with Respondent's wife and visited with her frequently. She also left bequests
to others. Accordingly, this case can be distinguished from those cases in which the attorney engaged in overreaching or took advantage of an elderly client. See, e.g., In re Hirschtick, 05 CH 32 (Hearing Bd., April 13, 2007), approved and confirmed, No. M.R. 21668 (Sept. 18, 2007) (attorney disbarred for taking advantage of an elderly client for his own personal gain by obtaining large loans and gifts of cash from the client.); In re Beaupre, 03 SH 32 (Review Bd., April 15, 2005), Administrator's petition for leave to file exceptions as to sanction allowed, No. M.R. 20233 (Sept. 26, 2005)(a ninety day suspension imposed for an attorney who engaged in overreaching and a violation of Rules 1.8(c) and 1.7(b) by preparing a series of wills for a couple with whom he was friends that left gifts to respondent and his wife).
The cases of In re Mason, supra, 09 CH 15, (Review Bd., Sept. 2, 2011), recommendation adopted, No. M.R. 24927 (Nov. 22, 2011) and In re Peters, supra, 09 SH 43 (Review Board, Sept. 2, 2011), Administrator's petition for leave to file exceptions denied, No. M.R. 24928 (Nov. 22, 2011), in which the attorneys were censured for violating Rule 1.8(c), are most similar to this matter. In both of the matters, the attorneys had a close relationship with the decedents. The clients insisted on making the bequests. Mr. Mason and Mr. Peters, like this Respondent, had not previously been disciplined and had otherwise engaged in the practice of law without incident. They were unlikely to repeat the misconduct or harm future clients as a result of the misconduct. Both Mason and Peters offered extensive evidence in mitigation of their misconduct.
In mitigation in this matter, Respondent had a close relationship with Mrs. Anderson and he acted to insure that her wishes were met with respect to her bequests. Respondent has otherwise engaged in the practice of law without incident. He also offered evidence that he had attended an all day seminar on the Rules prior to the hearing and has stated
his intent to comply with the Rules in the future. Respondent testified that he now carries with him a copy of the new rules. Most importantly, Respondent was forthcoming with his clients, with the Hearing Board and at oral argument. He took responsibility for his actions which were unfortunately occasioned by his ignorance of a rule he should have known.
In striving to maintain consistency with other cases involving similar misconduct and after considering the extensive mitigating evidence, we recommend that Respondent be censured. Respondent violated Rule 1.8(c), but he is not a threat to future clients.
Accordingly, we reverse the Hearing Board's conclusion that Respondent did not violate Rule 1.8(c), we affirm the Hearing Board's dismissal of the remaining charges and recommend that Respondent be censured.
Date Entered: 10 February 2012