Filed October 18, 2011

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

In the Matter of:

DAVID ARNOLD MILKS,

Attorney-Respondent,

No. 1908464.

Commission No. 09 CH 30

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on June 27 and 28, 2011, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Panel of the Hearing Board consisting of John M. Steed, III, Chair, Roxanna M. Hipple, and Cheryl M. Kneubuehl. James A. Doppke, Jr. appeared on behalf of the Administrator. Respondent appeared at the hearing pro se.1

PLEADINGS

The case was heard on the Administrator's sixteen-count First Amended Complaint. Each count charged Respondent with conversion, conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct of 1990, conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5), and conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770. Respondent's Amended Answer admitted some factual allegations, denied others, and denied misconduct.

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PREHEARING PROCEEDINGS

The original Complaint, filed on May 28, 2009, charged Respondent with twenty-two counts of misconduct. Each count involved Respondent's handling of funds he had received in connection with a client's case. Respondent moved to dismiss, arguing the Complaint was filed after the five-year statute of limitations applicable to civil lawsuits involving conversion and the seven-year time within which attorneys must maintain financial records under Supreme Court Rule 769. The Motion was fully briefed and denied.

Subsequently, Respondent filed an Answer, asserting he lacked sufficient information to admit or deny most of the Complaint's factual allegations. The Answer was stricken on the Administrator's motion. Respondent filed an Amended Answer, with leave of the Chair.

Between November 2009 and March 2011, Respondent filed ten successive Motions for Summary Judgment, each directed to an individual count of the Complaint, as follows:

Date of Motion

Count

November 12, 2009 Count IV
December 29, 2009 Count VI
March 8, 2010 Count VII
April 6, 2010 Count XVII
April 19, 2010 Count XVIII
June 7, 2010 Count XX
June 25, 2010 Count VIII
October 12, 2010 Count XXII
November 16, 2010 Count II
March 16, 2011 Count XIII

Each motion raised comparable theories, specifically that there was no conversion. Each Motion for Summary Judgment was denied, after briefing by the parties.

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Subsequently, the Administrator voluntarily dismissed Counts VII, VIII, XI, XIV, XVII and XXII of the Complaint and was given leave to file a First Amended Complaint, eliminating the counts which had been dismissed. The First Amended Complaint included Counts I through VI, IX, X, XII, XIII, XV, XVI and XVIII through XXI. Respondent's Amended Answer was permitted to stand as his Answer to the First Amended Complaint.

THE EVIDENCE

The Administrator presented testimony from Rosemary Larkin, Bryan Page, Corlean Wright, and Viola Lenard, all of whom were former clients of Respondent and testified as to specific counts. The Administrator presented testimony from Respondent as an adverse witness. Administrator's Exhibits 1 through 11 and 13 through 17 were admitted into evidence.

Respondent testified on his own behalf. At the hearing, Respondent referred to certain exhibits; however Respondent never offered them for admission and they were not received as evidence.

Background

Respondent was admitted to practice law in Illinois in 1977, but began practicing in Illinois in 1983. Respondent was not practicing at the time of the hearing. His former practice consisted of a large volume of relatively small cases, primarily personal injury matters. (Tr. 50, 180, 211).

In 2001, Respondent worked with attorney Thomas Benno ("Benno"). They practiced as Milks and Benno, although they were not actually a partnership. (Tr. 50). A Milks and Benno client trust account ("Milks and Benno account") was established. (Tr. 51). Respondent testified Benno used that account for cases on which Benno had been working before he and Respondent

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associated in practice. Respondent received a number of checks from the Milks and Benno account, which he testified were for fees and expenses due to him. (Tr. 54-59).

Respondent maintained a business account, which he used to pay his office expenses. (Tr. 57-58). Respondent also had a checking account at Bank One, which was designated as a client trust account. ("Bank One Account"). This account was a separate account, in Respondent's name alone. Respondent opened it before he and Benno began practicing together. (Tr. 51, 58-59; Adm. Ex. 1). Respondent acknowledged the checks and bank statements in the Administrator's Exhibits accurately reflected the activity in the Bank One Account. (Tr. 54). As the Exhibits demonstrate and as more fully discussed below, the Bank One Account frequently was overdrawn or had a balance less than the amount Respondent was required to hold for clients whose money Respondent had deposited into the account.

Count I

Admitted Facts

Carlotta Davis ("Davis") was injured in an automobile accident on June 14, 2000. Respondent entered into a contingent fee contract with Davis to represent her in connection with that incident. Under their contract, Respondent's fee was to be one-third of the amount recovered if the case settled without filing suit, 40% if a law suit was filed.

In December 2000, Davis agreed to settle her claims for $3,000.00. Respondent received a settlement draft for $3,000.00, payable to Davis, Milks & Benno, and Davis's chiropractor. Respondent deposited the draft in the Bank One Account on January 2, 2001.

Evidence

When Respondent deposited Davis's settlement funds into the Bank One Account, he knew he would have to disburse $1,275.50 to Davis, representing her share of the settlement.

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(Tr. 72, 203; Adm. Ex. 1 at 6-7). Respondent issued Check 8709 on the Bank One Account to Davis for $1,275.50. (Adm. Ex. 1 at 16).

Respondent overdrew the Bank One Account before the check to Davis cleared. (Tr. 73). On January 5, 2001, when Check 8709 was presented for payment, the balance in the Bank One Account was less than the amount of the check and the check was returned for insufficient funds. (Adm. Ex. 1 at 2-3).

On January 11, 2001, Respondent deposited $10,000.00 of his own funds into the Bank One Account. Before this deposit, the Bank One Account had a negative balance. The check to Davis was paid after it was presented a second time, on January 11, 2001. (Tr. 63-64, 204-05; Adm. Ex. 1 at 3, 22).

Respondent took an attorney fee of $1,000.00 in the Davis case. (Tr. 203). Respondent assumed, but was not certain, that the remaining amount of the settlement, after his fees and the amount due to Davis, was costs and the amount due the medical provider. Respondent no longer had the settlement sheet in the Davis matter; he testified he had not had it since before the Complaint was filed. He was unsure if the amount due the medical provider was paid or was waived by a medical provider. (Tr. 204-05).

Count II

Admitted Facts

Michael Liberatore ("Liberatore") was injured in an automobile accident on October 17, 1997. Shortly thereafter, Respondent entered into a contingent fee contract with Liberatore to represent him in connection with that incident.

On October 18, 1999, Respondent filed suit on behalf of Liberatore. In January 2001, Liberatore agreed to settle the lawsuit with Farmer's Insurance Group ("Farmer's") for $500.00.

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On or about March 6, 2001, Respondent received a draft from Farmer's for $500.00 and deposited the draft into the Bank One Account.

Evidence

The payment from Farmer's only represented part of the Liberatore settlement. (Tr. 73-74). The full settlement amount was $10,500.00. Respondent received the additional $10,000.00 from a different source prior to January 1, 2001, the date of the earliest bank statements in evidence. Under his contract with Liberatore, Respondent's firm was due attorney fees of $3,500.00, plus reimbursement for expenses of $661.10. (Tr. 77-78; Adm. Ex. 15).

Exhibits in evidence reflect the date of deposit of the Farmer's draft as March 7, 2001. (Adm. Ex. 3 at 75, 89). When Respondent deposited the Farmer's draft, his account was overdrawn by $2,795.51. Before that overdraft, checks unrelated to Liberatore cleared the account. (Adm. Exs. 75, 81-88). The $500.00 deposit reduced the amount of the overdraft to $2,295.51. The same day, Respondent deposited $3,000.00 from the Milks and Benno account into the Bank One Account, which brought the Bank One Account balance to $704.49. (Adm. Ex. 3 at 75, 91). Respondent issued Check 8729 on the Bank One Account for $500.00 to Liberatore. The check cleared on presentment on March 19, 2001. Before the check cleared, the Bank One account was overdrawn again, on March 14 and 15, 2001. (Adm. Ex. 3 at 75-76, 117-18).

Count III

Admitted Facts

Bryan Page ("Page") was injured in an automobile accident on December 6, 1999. Respondent agreed to represent Page concerning those injuries, on a contingent fee basis. Subsequently, Respondent received a draft from State Farm Insurance Company ("State Farm")

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for $1,373.20, representing payment under the medical payment provision of Page's State Farm policy. Respondent deposited this draft into his Bank One Account on March 16, 2001.

Evidence

Conflicting testimony was presented as to the type of case in which Respondent represented Page. Page could not recall the specific terms of his fee agreement with Respondent. (Tr. 35-36, 81-84). However, Page did remember that his case settled. Page testified Respondent contacted him in advance about the settlement and later gave Page a check. Respondent did not ask Page to hold the check. The check cleared when Page deposited it. Page did not authorize Respondent to use for his own purposes the funds Respondent received as part of Page's settlement. (Tr. 35-40).

Respondent issued a check to Page for $1,121.67, dated March 15, 2001. (Adm. Ex. 3 at 123-24). On March 20, 2001, Check 8695 for $10,000.00 was presented for payment. Respondent had written check 8695 on the Bank One Account for $10,000.00 payable to another attorney as a referral fee. Check 8695 caused an overdraft of $4,515.98 on the account and was returned for insufficient funds on March 21, 2001. (Tr. 61-62; Adm. Ex. 3 at 76, 121). As a result, the Bank One Account was no longer overdrawn. The check to Page was presented on March 21, 2001, the same day Check 8695 was returned. When the check to Page was presented, it cleared Respondent's account. (Adm. Ex. 3 at 76, 121, 123).

Respondent acknowledged the full amount he paid Page belonged to Page. Respondent testified the difference between the amount he received for Page and the amount he paid Page must have been due to some deduction. (Tr. 84-86).

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Count IV

Admitted Facts

Alicia Patterson ("Patterson") was injured in a fire on October 27, 1999. Shortly after the injury, she retained Respondent to represent her on a contingent fee basis. Patterson agreed to settle the claim in May 2001, in exchange for payment from People's Energy of $5,000.00. On or about May 18, 2001. Respondent received a draft from People's Energy for $5,000.00 representing that settlement. He deposited the draft in his Bank One Account and later disbursed $2,697.00 of the settlement funds to Patterson.

Evidence

Respondent issued Check 8775 on the Bank One Account to the Illinois Department of Public Aid ("IDPA") for $550.00 concerning Patterson. This check was dated May 21, 2001. (Tr. 88; Adm. Ex. 6 at 291). Between May 23 and 30, 2001, the balance in the Bank One Account was less than $550.00. On May 30, 2001, the account became overdrawn. (Adm. Ex. 5 at 205). The overdraft was rectified temporarily when a Milks and Benno check for $100.00 was deposited on June 4, 2001. The same day a different check, also for $100.00, cleared the account and the account was overdrawn once again. The Bank One Account remained overdrawn until June 11, 2001. (Adm. Ex. 6 at 275-76, 278, 279).

Check 8775 was dishonored when initially presented for payment, on June 6, 2001. On June 11, 2001, a Milks and Benno check for $1,000.00 was deposited into the Bank One Account, covering the overdraft which caused Check 8775 to be dishonored. When presented again, on June 13, 2001, Check 8775 was paid. (Adm. Ex. 6 at 276, 285).

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Payment of the check to IDPA caused the Bank One Account to become overdrawn. On June 15, 2001, deposits were made into the Bank One Account, including checks written on the Milks and Benno account, covering the arrearage. (Adm. Ex. 6 at 276, 293, 295, 297, 299).

While acknowledging that the check to IDPA was to pay a lien on Patterson's matter, Respondent denied he was required to disburse this money for Patterson. According to Respondent, he only would have been required to do so if he had withheld the money from Patterson's settlement. Respondent testified the check came "long after" the Patterson settlement and he believed, since IDPA had not been included as a payee on the original settlement check, they had overlooked IDPA and not withheld the money from the client's settlement funds. Respondent testified, as a result, when it later came to his attention that IDPA should have been paid, he paid IDPA out of his own funds. (Tr. 86-88).

Count V

Admitted Facts

Jeanette Walsh ("Walsh") was injured in a motor vehicle accident in 2000. She entered into a contingent fee contract with Respondent to represent her in relation to those injuries. In August 2001, Walsh agreed to settle her claims in exchange for payment from Liberty Mutual, the other party's insurer, for $8,600.00. Respondent received Liberty Mutual's settlement draft for $8,600.00 on or about September 4, 2001. The draft was payable to Walsh, Milks & Benno, and Med-Plus Medical Center, where Walsh received treatment. Respondent deposited the draft into the Bank One Account on September 4, 2001. He issued a check on the Bank One Account to Walsh for $4,800.00 around the same time.

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Evidence

On September 7, 2001, Respondent issued Check 9036 on the Bank One Account for $1,000.00 to Dr. Palumbo in connection with medical treatment provided to Walsh. (Adm. Ex. 10 at 963). Respondent testified he did not think those funds were to be paid out of Walsh's settlement, even though he had received Walsh's settlement funds, and even though Walsh had outstanding medical bills. (Tr. 91-92). The check to Dr. Palumbo cleared on October 15, 2001. Before the check cleared, the Bank One Account was overdrawn. The account was overdrawn on September 7, 2001. Although a deposit was made of $10,000.00 on September 10, 2001, the account was overdrawn once again on September 19 and 20, 2001 and October 5, 2001. While not overdrawn, the balance in the Bank One Account was less than $1,000.00 from September 14-19, 2001 and from October 1-4, 2001. (Tr. 92; Adm. Ex. 9 at 808-09; Adm. Ex. 10 at 912-13).

The overdraft on September 7, 2001 occurred when a check to Respondent for $1,000.00 cleared the Bank One Account. (Adm. Ex. 9 at 808, 821-22). On September 14, 2001, two checks cleared the Bank One Account when the account balance was less than the $1,000.00 Respondent should have been holding for Walsh to pay Dr. Palumbo. One of these checks was written to Respondent's office account for $250.00; the other was to Respondent for $350.00. Neither check bore any notation connecting it to a specific file. (Adm. Ex. 9 at 809, 853, 855).

Count VI

Admitted Facts

On June 14, 1996, Christopher Perkins ("Perkins") was injured in an automobile accident. Perkins retained Respondent to represent him in that matter, on a contingent fee basis. In August 2001, Perkins agreed to settle his claims in exchange for payment of $750.00 from the

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other party's insurer, State Farm Fire and Casualty ("State Farm Fire"). On or about September 6, 2001, Respondent received a draft from State Farm Fire for $750.00, payable to Perkins, Respondent, and one of Perkins's medical treatment providers, in settlement of the claim. On September 6, 2001, Respondent deposited the draft into his Bank One Account.

Evidence

Respondent acknowledged Perkins was to receive $400.00 of this settlement. Respondent issued a check on the Bank One Account to Perkins for $400.00. (Tr. 92-94; Adm. Ex. 9 at 865). The check cleared on September 27, 2001. Before Respondent's check to Perkins cleared, the Bank One Account was overdrawn. Specifically, the account was overdrawn on September 7, 2001 and September 19 and 20, 2001. (Tr. 93-94; Adm. Ex. 9 at 808-09).

The September 7, 2001 an overdraft occurred when a check to Respondent for $1,000.00 cleared the Bank One Account. (Adm. Ex. 9 at 808, 821). After a check to Respondent for $350.00 cleared the Bank One Account on September 14, 2001, the account balance was $192.15, less than the $400.00 Respondent should have been holding for Perkins and remained below $400.00 until September 24, 2001. As noted above, the account was overdrawn for part of this time. (Adm. Ex. 9 at 809, 855).

Count IX

Admitted Facts

Rosemary Larkin ("Larkin") was injured in an automobile accident on May 31, 1999. Larkin retained Respondent to represent her in the matter, on a contingent fee basis. Their agreement contemplated Respondent would receive a fee of one-third of the amount recovered in any settlement or 40% of the amount recovered if a lawsuit or arbitration proceeding was filed.

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Respondent filed suit on behalf of Larkin on May 31, 2001. In September 2001, Larkin agreed to settle her claim in exchange for payment by the other party's insurer, American Family Insurance Group ("American Family"), of $5,500.00. Respondent received a draft from American Family in settlement of Larkin's claim and deposited it into the Bank One Account on September 26, 2001. The draft was for $5,500.00 and was payable to Larkin, Milks & Benno, and three of Larkin's medical treatment providers. Under his contract with Larkin, Respondent was entitled to a fee of $2,200.00. On or about September 26, 2001, Respondent disbursed $1,585.00 of the settlement funds to Larkin.

Evidence

The check to Larkin cleared on presentment, on September 28, 2001. (Adm. Ex. 9 at 810, 903). Larkin testified she did not authorize Respondent to use any portion of the settlement proceeds, other than his fee, for his own purposes. She also testified Respondent was obligated to pay bills concerning the case. (Tr. 25-26). Larkin had received a settlement statement which listed the bills being paid from settlement funds and Larkin agreed to those payments. However, Larkin could not locate a copy of the settlement statement. (Tr. 30-32).

Respondent issued checks on the Bank One Account dated September 26, 2001 for Larkin's case, including checks to Chirox, Inc. for $45.00 and Progressive X-Ray for $134.47. (Adm. Ex. 10 at 1001, 1003). These checks cleared the account, on presentment, on October 18, 2001. In the meantime, the account was overdrawn on October 5, 2001. A deposit on October 9, 2001 covered this overdraft. Between the deposit of Larkin's settlement on September 26, 2001 and the October 5, 2001 overdraft, six checks to Respondent totaling $2,850.00 cleared the account. (Tr. 94; Adm. Ex. 9 at 809-10, 899, 901, 909; Adm. Ex. 10 at 912-13, 919, 925, 935).

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The account also was overdrawn on October 15, 2001. On October 16, 2001, Respondent deposited another client's settlement proceeds into the account, which caused the balance to exceed the amount due on behalf of Larkin. (Adm. Ex. 10 at 913, 983). The checks which cleared the Bank One Account on October 15, 2001, immediately prior to the overdraft, included three checks to Respondent totaling $4,420.00 (Adm. Ex. 10 at 913, 973, 977, 981).

Count X

Admitted Facts

Clifton Young ("Young") was injured in an automobile accident on April 19, 1997. Shortly thereafter, Young retained Respondent to represent him in connection with those injuries on a contingent fee basis. Their agreement contemplated Respondent would receive a fee of one-third of the amount recovered in any settlement or 40% of the amount recovered if a lawsuit or arbitration proceeding was filed. Respondent filed suit in this matter on April 19, 1999. In September 2001, Young agreed to settle the case in exchange for payment of $9,000.00 from the other party's insurer, State Farm Mutual Automobile Insurance Company ("State Farm Auto").

Respondent received the settlement draft from State Farm Auto, payable to Young, Respondent, and two medical providers who had treated Young. Respondent deposited the draft in the Bank One Account on October 9, 2001. On or about October 9, 2001, Respondent disbursed $3,000.00 of the settlement funds to Young.

Evidence

Respondent made an additional disbursement to Young, of $2,225.55, in December 2001. Before that time, the Bank One Account was overdrawn. (Tr. 95). The account was overdrawn on October 15, 2001. The account was also overdrawn on October 26, 2001 and on multiple dates in November 2001. On October 24, 25, 26, and 31, 2001 and from November 13 through

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30, 2001, while the account was not overdrawn, the balance was less than $2,225.55. (Adm. Ex. 10 at 912-14; Adm. Ex. 11 at 1098-99).

Between October 9, 2001 when the Young settlement draft was deposited and the first overdraft on October 15, 2001, five checks to Respondent totaling over $6,000.00 cleared the account. Payment of one of those checks immediately preceded the overdraft. Other checks which cleared the account during that period included checks to the Postmaster for $102.00 and to AT & T for $262.84. (Adm. Ex. 10 at 912-13, 949, 953, 955, 971, 973. 977, 981).

On October 24 and 25, 2001, checks which cleared the Bank One Account included Check 9139 to the Union League Club for $388.00, Check 9149 to Respondent for $229.42, and Check 9151 to Respondent for $50.00. After those checks cleared, the account balance was less than the amount Respondent should have been holding for Young. (Adm. Ex. 10 at 913, 1048, 1050, 1052).

As described below, in relation to Count XVI, checks cleared the Bank One Account in November 2001 which were payable to Respondent directly or for his own personal expenses, prior to the disbursement to Young in December 2001.

Count XII

Admitted Facts

Michelle Williams ("Williams") was injured in an automobile accident on March 27, 2001. She retained Respondent to represent her concerning this matter on a contingent fee basis. In September 2001, Williams agreed to settle her claims for $3,500.00, to be paid by the other party's insurer, Indiana Farmers Mutual Insurance Company ("Indiana Farmers"). Respondent received a draft from Indiana Farmers for $3,500.00, representing the settlement, on or about October 16, 2001. The settlement draft was payable to Williams, Respondent, and two medical

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providers who had treated Williams. Respondent deposited into the Bank One Account. On or about October 18, 2001, Respondent disbursed $1,000.00 of the settlement to Williams.

Evidence

Respondent acknowledged he was due to pay at least $236.00 to a third party medical provider, Holy Cross Hospital, for Williams. (Tr. 95). Respondent issued a check to Holy Cross Hospital for $236.00 on behalf of Williams. The check cleared Respondent's bank on November 1, 2001. In the interim, the Bank One Account was overdrawn on October 26, 2001. (Tr. 95-96; Adm. Ex. 10 at 913; Adm. Ex. 11 at 1097, 1108).

Checks which cleared the Bank One Account between October 16, 2001, when the Williams settlement proceeds were deposited, (Adm. Ex. 10 at 913, 983), and the October 26, 2001 overdraft included seven checks to Respondent totaling over $1,200.00, (Adm. Ex. 10 at 1011, 1033, 1045, 1050, 1052, 1062, 1064), and three checks to Benno totaling $5,650, (Adm. Ex. 10 at 1021, 1027, 1066).

During this period, the following checks also cleared the account:

Check number

Payee

Amount of check

9113

United States Treasury

$ 9,104.00

9102

Architectural Digest

39.95

9131

Postmaster of Chicago

102.00

9139

Union League Club

388.00

9111

Illinois Department of Revenue

63.00

9141

Sam's Club

35.00

(Adm. Ex. 10 at 913, 1007, 1015, 1031, 1048, 1058, 1060). Respondent admitted the checks to the Illinois Department of Revenue and to the United States Treasury were for his own purposes. (Tr. 66).

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Count XIII

Admitted Facts

DeShawn McDougle ("McDougle") was injured in the same accident as Williams. McDougle also retained Respondent to represent him in relation to his injuries, on a contingent fee basis. In September 2001, McDougle agreed to settle his case in exchange for payment of $5,000.00 by Indiana Farmers. Respondent received a settlement draft in that amount from Indiana Farmers on or about October 16, 2001. The draft was payable to McDougle, Respondent, and two medical providers who had treated McDougle. Respondent deposited the draft into his Bank One Account on October 16, 2001. On October 16, 2001, Respondent disbursed part of the settlement funds to McDougle.

Evidence

Respondent's check to McDougle for $1,600.00 cleared on October 19, 2001. (Adm. Ex. 10 at 913, 1019). Respondent acknowledged $90.00 was due to Holy Cross Hospital ("Holy Cross") for McDougle. Respondent paid that amount in November 2001. Between the deposit of McDougle's settlement draft and November 1, 2001, when the check to Holy Cross cleared, the Bank One Account was overdrawn. The overdraft occurred on October 26, 2001. (Tr. 96; Adm. Ex. 10 at 913; Adm. Ex. 11 at 1097, 1106). As noted above, multiple checks for Respondent's own purposes, including checks to Respondent and checks for his tax payments, cleared the Bank One Account between October 16, 2001 and October 26, 2001. (Tr. 66; Adm. Ex. 10 at 913, 1011, 1015, 1033, 1045, 1050, 1052, 1058, 1062, 1064).

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Count XV

Admitted Facts

Patricia Jackson ("Jackson") was injured in a motor vehicle accident on December 5, 1997. She retained Respondent to represent her in relation to that incident and signed a contingent fee agreement with him. Respondent filed suit for Jackson on December 6, 1999. In September 2001, Jackson agreed to settle her case for $900.00 to be paid by State Farm Auto, the other party's insurer. Respondent admitted, as alleged in the First Amended Complaint, his fees from Jackson's settlement were $360.00. Respondent received a draft from State Farm Auto for $900.00 payable to Jackson, Milks and Benno, and a doctor who had treated Jackson. Respondent deposited the draft into the Bank One Account on October 26, 2001.

Evidence

Respondent issued a check on the Bank One Account for $600.00 to Jackson, which was paid on presentment on October 31, 2001. However, on October 26, 2001, after the deposit of Jackson's funds, the account became overdrawn. (Tr. 97-98; Adm. Ex. 10 at 913-14, 1090). Checks which cleared the Bank One Account on October 26, 2001 after the Jackson funds were deposited and before the overdraft included checks to Respondent totaling $250.00, Sam's Club for $35.00, the Illinois Department of Revenue for $63.00 and Benno for $1,000.00. The notation "fee" appears on the check to Benno. (Adm. Ex. 10 at 913, 1058-66). Respondent acknowledged the check to the Illinois Department of Revenue was for his own purposes. (Tr. 66).

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Count XVI

Admitted Facts

On June 8, 1996, Darnell Wright and Corlean Wright ("the Wrights") were injured in an automobile accident. They retained Respondent to represent them in relation to those injuries on a contingent fee basis. In June 1998, the Wrights agreed to compromise their claims in exchange for a payment of $1,186.00 from Darnell Wright's insurer, State Farm Mutual Insurance Company ("State Farm Mutual"). The First Amended Complaint alleged Respondent received a draft from State Farm Mutual shortly thereafter but did not negotiate it; Respondent denied these allegations.

On September 20, 2001, Respondent contacted State Farm Mutual and asked that the company reissue a settlement check. State Farm Mutual did so. Respondent received a settlement draft payable to himself and the Wrights and deposited it in the Bank One Account.

Evidence

At the time of the accident, the Wrights were married to each other. Darnell Wright ("Darnell") was driving the vehicle. Corlean Wright ("Corlean") was a passenger (Tr. 140-41). Corlean testified the matter settled after Corlean attended an arbitration hearing. Corlean testified Respondent was to receive a fee out of the settlement. The Wrights did not give Respondent money toward costs. (Tr. 141-46; Adm. Ex. 11 at 1124).

The Wright settlement was deposited into the Bank One Account on November 5, 2001. (Adm. Ex. 11 at 1097, 1124). Of the settlement, Corlean was due to receive $790.67. (Tr. 102). A check for $790.67 cleared the Bank One Account on November 27, 2001. On November 13, 2001, the account was overdrawn. (Adm. Ex. 11 at 1097-99). Corlean never gave Respondent permission to use, for his purposes, her portion of the settlement proceeds. (Tr. 138-39).

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The overdraft on November 13, 2001 was temporarily covered by a deposit on November 14, 2001 of another client's settlement check for $500.00 and a check from the Milks and Benno account for $1,000.00. (Adm. Ex. 1098, 1208, 1210). The check to Corlean was honored on presentment but caused the account to be overdrawn again. Before payment of the check to Corlean, the account was also overdrawn on November 15, 16, 20, and 26, 2001. While the account was not overdrawn, the balance was below the amount due to Corlean on November 14, 19 and 21, 2001. (Adm. Ex. 11 at 1097-99).

Between the deposit of the Wright funds on November 5, 2001 and the overdraft on November 13, 2001, the following checks payable to Respondent cleared the Bank One Account:

Check number

Amount of check

9183

$ 100.00

9185

100.00

9188

3,000.00

9194

100.00

9203

100.00

9202

300.00

9207

900.00

9212

350.00

(Adm. Ex. 11 at 1097-98, 1134, 1136, 1158, 1160, 1176, 1200, 1202, 1204).

Count XVIII

Admitted Facts

Viola Lenard ("Lenard") was injured in an automobile accident on May 3, 1996. She retained Respondent to represent her, on a contingent fee basis, in relation to that incident. Respondent filed suit on Lenard's behalf. In October 2001, Lenard agreed to settle her claims in return for a payment by the other party's insurer, State Farm Mutual, for $500.00. Respondent

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received a draft from State Farm Mutual payable to Lenard, Milks & Benno, and three medical providers that treated Lenard. Respondent deposited the draft, for $500.00, into the Bank One Account on November 13, 2001.

Evidence

Respondent issued a check to Lenard for $250.00. Respondent asserted his office had advanced various costs on Lenard's case; however, he no longer had complete records concerning Lenard's case. Nevertheless, Respondent admitted Lenard was due $250.00 from the settlement. The check to Lenard cleared the Bank One Account on presentment, on November 14, 2001. However, on November 13, 2001, before the check to Lenard cleared and after her settlement draft had been deposited, the Bank One Account was overdrawn by $88.42. (Tr. 102-104, 207-09; Adm. Ex. 11 at 1098, 1178, 1216). A deposit into the account on November 14, 2001 of another client's $500.00 settlement rectified the overdraft. The same day, a Milks and Benno check for $1,000.00 was deposited into the account. (Adm. Ex. 11 at 1098, 1208, 1210).

While her recollection of the matter was limited, (Tr. 157-62), Lenard testified she did not authorize Respondent to use her portion of the settlement for his own purposes. (Tr. 156). Between the deposit of the Lenard settlement draft and the overdraft on November 13, 2001, three checks to Respondent totaling $1,550.00 cleared the Bank One Account. (Adm. Ex. 11 at 1098, 1178, 1200, 1202, 1204).

Count XIX

Admitted Facts

Melvin Jackson ("Jackson") was injured in an automobile accident in September 2001. He retained Respondent to represent him in relation to the accident. Respondent received three drafts from Jackson's insurer, Allstate Insurance Company ("Allstate"), pursuant to the medical

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payment provisions of the policy, for $30.00, $961.00, and $65.00, all payable to Jackson and Milks and Benno. Respondent deposited these drafts into his Bank One Account on November 13, 2001.

Evidence

Bank records in evidence reflect the deposit of the Jackson funds, totaling $1,056.00, on November 13, 2001. Respondent acknowledged those funds were to be disbursed either to Jackson or other parties on Jackson's behalf. On November 13, 2001, after the deposit of the Jackson funds, the Bank One Account was overdrawn. (Tr. 104-06; Adm. Ex. 11 at 1098, 1180). Immediately prior to this overdraft, three checks to Respondent totaling $1,550.00 cleared the Bank One Account. (Adm. Ex. 11 at 1098, 1200, 1202, 1204).

Respondent issued a check to Jackson for $759.90, which was honored on presentment, on November 14, 2001. (Adm. Ex. 11 at 1098, 1214). The check to Jackson cleared after Respondent deposited $1,500.00 into the Bank One Account on November 14, 2001. Of that deposit, $500.00 was another client's settlement draft and $1,000.00 came from the Milks & Benno account. Without the $1,000.00 from Milks and Benno, the Bank One Account would not have had sufficient funds to cover the check to Jackson. (Adm. Ex. 11 at 1098, 1208, 1210).

Count XX

Admitted Facts

Elizabeth Truly ("Truly"), who was injured in the same accident as Lenard, also retained Respondent to represent her in relation to her injuries. They agreed on a contingent fee, of one-third if the case was settled or 40% if a lawsuit or arbitration proceeding was filed. In October 2001, after Respondent filed suit, Truly agreed to settle her claims for $500.00 to be paid by the other party's insurer, State Farm. Respondent received a draft from State Farm, payable to

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Truly, Milks & Benno, and four medical providers who had treated Truly. Respondent deposited this draft, for $500.00, into his Bank One Account on November 14, 2001. Of the settlement amount, Respondent was entitled to no more than $300.00 as his fees.

Evidence

When Respondent deposited the Truly settlement, the Bank One Account was overdrawn. After that deposit, the account balance was $411.58. (Tr. 107; Adm. Ex. 11 at 1098, 1208). Respondent testified he had advanced some costs on Truly's case, but again he did not have complete records in her matter. (Tr. 207-09). Respondent issued a check to Truly for $150.00 which cleared the Bank One Account on presentment on November 21, 2001. The remaining $50.00 of Truly's settlement was paid in October 2002 to Regional MRI of Chicago for an outstanding bill for Truly. However, on November 15, 2001, the Bank One Account was overdrawn. The account was also overdrawn on November 16 and 20, 2001. (Tr. 107-10; Adm. Ex. 11 at 1098-99, Adm. Exs. 16, 17).

Between the deposit of Truly's settlement and the November 15, 2001 overdraft, checks concerning other client matters cleared the Bank One Account. A bank fee for payment of a check for which the account did not contain sufficient funds also debited the account. (Adm. Ex. 11 at 1098, 1212, 1214, 1216, 1218). As noted above, the Bank One Account became overdrawn on November 13, 2001, just prior to the deposit of Truly's funds, after three checks to Respondent totaling $1,550.00 cleared the account. (Adm. Ex. 11 at 1098, 1200, 1202, 1204).

Count XXI

Admitted Facts

Robert Edwards ("Edwards") was injured in an automobile accident in April 2001. He retained Respondent to represent him in connection with those injuries. Respondent received

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drafts from Allstate totaling $2,000.06 representing payments pursuant to the medical payment provision of Edwards's insurance policy. Respondent deposited those drafts into his Bank One Account on November 16, 2001.

Evidence

When Respondent deposited the Edwards funds on November 16, 2001, the Bank One Account was overdrawn. On November 20, 2001, after various disbursements, the account was overdrawn again. (Adm. Ex. 11 at 1098, 1226-34).

Respondent testified he did not disburse any funds to Edwards. Although medical providers who treated Edwards were included as payees on the Allstate drafts, Respondent testified the medical providers were not entitled to any portion of the funds. He thought they had been paid through another source. Respondent testified he was entitled to all of the money received on the Edwards claim, as his fees and expenses. (Tr. 114-16; Adm. Ex. 11 at 1226-34).

Additional Evidence Concerning the Bank One Account

Respondent deposited all funds he received into the Bank One Account, regardless of the source, purpose, or ownership of the funds. Respondent testified he did this based on the advice of his certified public accountant (CPA). (Tr. 57-58, 120-21, 218-19). The items Respondent deposited into the Bank One Account included settlement proceeds or other funds in which a client had an interest, referral fees from other attorneys, checks from the Milks and Benno account and personal funds. (Tr. 51-58, 60-61, 72).

Respondent recognized, when he deposited settlements received on behalf of clients into the Bank One Account, he would have to disburse part of the funds to the client and to third parties on the client's behalf, such as medical professionals who had treated the client. Respondent wrote some checks on the Bank One Account for these purposes. Respondent

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testified, after paying the client and expenses related to the case, he transferred money left over to his office account. Under his standard contract, Respondent was entitled to attorney fees plus reimbursement of any costs Respondent had advanced to handle the case. Respondent's standard contract provided for contingent fees of one-third of the proceeds if the case settled without going to court, 40% if the matter was litigated. (Tr. 51, 72, 185-91, 219). No exemplars of this standard contract were introduced as exhibits in this matter.

Respondent also deposited funds into the Bank One Account which he received from his clients' insurers as payments for their medical expenses. The insurer would have subrogation rights regarding those payments. According to Respondent, these medical payment funds could be used for any expense in the client's matter. He also testified the client could decide whether or not the doctor would be paid. Respondent testified the doctor was often paid from another source. (Tr. 82-84, 186, 192-93). Respondent admitted he received fees from these medical payments. Respondent testified he typically used "med/pay" fees to finance the case and recoup his costs and expenses on the case. (Tr. 192-95).

Respondent typically dealt with a small group of doctors related to his personal injury clients. He stated he was sometimes able to negotiate a reduction or waiver in a doctor's fees related to their cases. (Tr. 119-20, 195-97). Respondent testified, when this occurred, he used the excess as the client wished. While he sometimes gave the money to the client, Respondent often used it to offset his expenses on the case. Respondent provided his clients with a disbursement sheet, listing the disposition of funds. Respondent testified, given the terms of his contract, his clients usually expected to actually receive one-third of the gross settlement. (Tr. 122-24, 217-18).

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Deposits made into the Bank One Account from Respondent's personal or business accounts covered overdrafts in the Bank One Account. A $500.00 deposit from Respondent's business account on January 1, 2001 covered an overdraft of $470.50 in the Bank One Account. (Adm. Ex. 1 at 2, 4). On January 11, 2001, $10,000.00 from Respondent's personal account was deposited into the Bank One Account. Just prior to that deposit, the Bank One Account was overdrawn by $1,811.52 and a number of checks had been returned for insufficient funds, including the check to Carlotta Davis (Count I). (Tr. 60-61; Adm. Ex. 1 at 3, 16, 22). A deposit of $7,000.00 from Respondent's personal account on February 9, 2001 covered an overdraft of $6,056.40. (Tr. 60-61; Adm. Ex. 2 at 44, 54).

Some of the funds received from Milks and Benno were also deposited when the Bank One Account was overdrawn. On March 2, 2001, $2,717.00 from Milks and Benno was deposited into the Bank One Account. When that deposit was made, the Bank One Account was overdrawn by $3,039.84 (Adm. Ex. 3 at 75, 77, 79). On March 7, 2001, a Milks and Benno check for $3,000.00 was deposited into the Bank One Account. At the time, the account was overdrawn by $2,295.51, and a check for $500.00 had been written to Michael Liberatore (Count II). (Adm. Ex. 3 at 75, 91, 117). A deposit of $4,500.00 from Milks and Benno was made on March 19, 2001, after the Bank One Account was overdrawn and checks totaling $5,475.26 were returned for insufficient funds on March 15, 2001. (Adm. Ex. 3 at 76, 115).

On June 4, 2001, a deposit of $100.00 from Milks and Benno covered a $100.00 check to a medical treatment provider. This check cleared the same day. Prior to this deposit, the Bank One Account had been overdrawn since May 30, 2001. After the $100.00 check cleared, the Bank One Account was overdrawn again, and remained overdrawn until June 11, 2001. (Adm. Ex. 5 at 205; Adm. Ex. 6 at 275-76, 278-79). On June 11, 2001, $1,000.00 from Milks and

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Benno was deposited into the Bank One Account. This deposit covered the overdraft and allowed for payment of the check written to IDPA for Alicia Patterson (Count IV). That check had previously been dishonored for insufficient funds. (Adm. Ex. 6 at 276, 285, 291). On June 15, 2001, Milks and Benno checks totaling $2,351.82 were deposited into the Bank One Account, which had been overdrawn by $423.68. (Adm. Ex. 6 at 276, 293, 295, 297, 299).

On November 14, 2001, checks totaling $1,500.00 were deposited into the Bank One Account, including $1,000.00 drawn on the Milks and Benno account. Before this deposit, the Bank One Account was overdrawn by $88.42. After the November 14, 2001 deposit, checks to Viola Lenard and Melvin Jackson (Counts XVIII and XIX) cleared the account. (Adm. Ex. 11 at 1098, 1210, 1214, 1216). Without the $1,000.00 portion of the November 14, 2001 deposit from Milks and Benno, the funds in the Bank One Account would not have been sufficient to cover the check to Jackson. (Adm. Ex. 11 at 1098, 1208, 1210).

Respondent admittedly wrote checks on the Bank One Account for his own personal or business expenses. (Tr. 64). As set out above, some of these checks contributed to the overdrafts charged in the First Amended Complaint.

Respondent acknowledged that checks written on the Bank One Account to the Illinois Department of Revenue and the United States Treasury were for his own purposes. Respondent also acknowledged that a check written on the account was for payment of his office rent. (Tr. 65-66, 212-13; Adm. Ex. 4 at 141).

Respondent wrote a number of checks on the Bank One Account to the Postmaster of Chicago. Respondent testified those checks "probably" related to shipping or receiving on an individual file rather than general office postage. The checks do not contain any indication they

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relate to any specific case and are for amounts such as $55.00, $98.85, and $102.00. (Tr. 70-71; Adm. Ex. 6 at 333; Adm. Ex. 9 at 817; Adm. Ex. 10 at 953).

Respondent also wrote checks on the Bank One Account to Verizon Wireless, AT&T, the Union League Club and Sam's Club. (Adm. Ex. 5 at 234; Adm. Ex. 10 at 971, 1048, 1060).

Respondent wrote numerous checks on the Bank One Account to himself. Some of those checks contributed to the overdrafts charged, as set out above in relation to the individual counts. Other checks, however, are relevant in showing the manner in which Respondent used the Bank One Account. The exhibits include many checks written to Respondent which were endorsed in blank and appear to have been simply cashed, as exemplified by Check 8714 for $100.00 (Adm. Ex. 2 at 66-67), Check 8755 for $1,000.00 (Adm. Ex. 5 at 218-19), Check 8814 for $600.00 (Adm. Ex. 7 at 366-67) and Check 8929 for $400.00 (Adm. Ex. 8 at 610-11). By way of comparison, other checks were written on the Bank One Account to Respondent's office account and endorsed for deposit, such as Check 8812 for $2,700.00 and Check 8859 for $2,733.33. (Adm. Ex. 7 at 364-65, 462-63).

Respondent testified he sometimes wrote checks to himself on the Bank One Account and cashed them to provide a client with cash, as an accommodation. Respondent testified a client might want cash to pay a person who drove the client to Respondent's office or as a way to avoid telling a companion the amount the client had received. (Tr. 219-21).

Respondent wrote numerous checks on the Bank One Account to Ed Carey ("Carey"). Respondent described Carey as an independent contractor whose work consisted primarily of picking up checks or transporting clients to Respondent's office. Respondent testified payments to Carey were attributable to specific cases and he paid Carey for work on individual cases. Respondent testified payments to Carey were deducted from the client's settlement, if the client

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agreed. Respondent used a file numbering system, to keep track of items relating to specific cases. Many of the checks to Carey, however, did not have a file number on them. (Tr. 66-68).

Some of the checks to Carey preceded overdrafts on the Bank One Account. For example, a check to Carey for $300.00 cleared the Bank One Account on September 6, 2001, just before a check to Respondent for $1,000.00 cleared on September 7, 2001. After the check to Respondent cleared, the overdraft occurred which is at issue in Counts V and VI. (Adm. Ex. 9 at 808, 819). After a check to Carey for $200.00 cleared the Bank One Account on September 19, 2001, an overdraft occurred. At that time, Respondent should have been holding funds to pay Perkins (Count VI) and Dr. Palumbo on behalf of Walsh (Count V). (Adm. Ex. 9 at 809, 863).

In 2001, Respondent had five employees, one of whom was a full-time bookkeeper. (Tr. 180-81). Respondent testified he never did bookkeeping and did not personally reconcile the Bank One Account. He testified he kept track of activity in the account by looking at carbons in his checkbook. Respondent would write checks on the Bank One Account, but his staff prepared the items to be written out. Respondent testified a ledger sheet kept for the account always showed a positive balance and his bookkeeper never told him of any problems with or any overdrafts on any of his accounts. (Tr. 51, 72, 184-85).

Prior Discipline

When asked if he was currently employed, Respondent testified "(n)o. Retired." (Tr. 50). In fact, Respondent was suspended. In re Milks, 05 CH 44, M.R. 23085 (Sept. 22, 2009).

Respondent has been disciplined twice before.

The Supreme Court suspended Respondent for two years in In re Milks, 99 CH 20, M.R. 18895 (Nov. 14, 2003) ("Milks I") for misconduct arising out of using non-attorneys to solicit prospective clients for Respondent, assisting in the unauthorized practice of law, failing to

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promptly disburse settlement funds received n behalf of a minor client and failing to properly maintain financial records. The misconduct at issue in Milks I occurred primarily in the mid to late 1990's.

In a subsequent proceeding, the Court suspended Respondent for three years and until he made restitution to two clients. Milks, 05 CH 44 ("Milks II"). This suspension was in effect at the time of the hearing in this case.

In Milks II, Respondent was found to have engaged in misconduct involving two clients who were injured in the same automobile accident. In December 2001, Respondent received medical payment funds on behalf of each client. Respondent deposited those funds in his Bank One Account and disbursed part of the funds to his clients. Thereafter, Respondent was to disburse an additional $3,333.34 on behalf of each client, for a total of $6,666.68, to the client or third party medical providers. Respondent, however, overdrew the Bank One Account before making any such disbursements. While there was conflicting evidence as to the amount involved, by the time of the Milks II hearing Respondent still had not fully disbursed the funds. Respondent was also found to have engaged in misconduct arising out of neglect of a case he filed for one of these clients.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Administrator has the burden of proving the misconduct charged by clear and convincing evidence. In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560 (2004). While less stringent than the criminal standard of proof beyond a reasonable doubt, clear and convincing evidence requires more than the usual civil standard of a preponderance of the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); People v. Williams, 143 Ill. 2d 477, 484, 577 N.E.2d 762 (1990). There must be a high level of certainty to meet this burden. In

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re Stephenson, 67 Ill. 2d 544, 556, 367 N.E.2d 1273 (1977). Clear and convincing evidence means a degree of proof which, considering all the evidence, produces a firm and abiding belief it is highly probable the proposition at issue is true. Cleary & Graham's, Handbook of Illinois Evidence, sec. 301.6 (9th ed. 2009).

Each count of the First Amended Complaint charged Respondent with conversion, conduct involving fraud, dishonesty, deceit or misrepresentation, conduct that is prejudicial to the administration of justice, and conduct that tends to defeat the administration of justice or bring the courts or legal profession into disrepute. The Administrator proved the misconduct charged as to each count of the First Amended Complaint.

Conversion is any unauthorized act which deprives a person of his or her property permanently or for an indefinite time. In re Thebus, 108 Ill. 2d 255, 259, 483 N.E.2d 1258 (1985). Where an attorney receives funds on behalf of a client, the attorney may use the funds only for the purposes of that client. See In re Conner, 08 CH 119, M.R. 24471 (May 18, 2011) (Hearing Bd. at 25). Conversion occurs whenever the balance in an account in which an attorney is holding funds on behalf of a client falls below the amount entrusted to the attorney for that client. In re Holz, 125 Ill. 2d 546, 556, 533 N.E.2d 818 (1988); In re Ushijima, 119 Ill. 2d 51, 57, 518 N.E.2d 73 (1987). Conversion also occurs when an attorney deposits client funds into an account which is overdrawn; in such instances the funds deposited are not available in full to use for the client's purposes. In re Gustafson, 07 CH 127, M.R. 23784 (May 18, 2010).

In this case, as to each count, the Administrator proved Respondent deposited funds he received on behalf of his client into the Bank One Account and, thereafter, the account was overdrawn before a check written to the client or a third party due payment from the client's funds cleared the account. This constitutes conversion. Holz, 125 Ill. 2d at 556.

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As to many counts, the evidence established the Bank One Account was overdrawn between the time Respondent deposited funds received on behalf of the client into the account and the time Respondent's check to his client cleared the account. Thus, as to Count I, before Respondent's check for $1,275.50 to his client, Carlotta Davis, cleared the Bank One Account, the account was overdrawn; the check was returned for insufficient funds and not honored until it was presented a second time, after Respondent deposited personal funds into the account. As to Count II, the Bank One Account was overdrawn when Respondent deposited $500.00 for his client Michael Liberatore into the account; the account remained overdrawn after the deposit. As to Count III, the Bank One Account was overdrawn before Respondent's check for $1,121.67 to his client, Bryan Page, cleared the account.

Similarly, the Bank One Account was overdrawn between the deposit of funds Respondent received on behalf of his client Christopher Perkins and payment of Respondent's $400.00 check to Perkins (Count VI). The Bank One Account was overdrawn before Respondent's check for $2,225.55 to his client Clifton Young cleared the account (Count X). The Bank One Account was overdrawn before Respondent's $600.00 check to his client Patricia Jackson (Count XV) and before Respondent's $790.67 check to his client Corlean Wright (Count XVI) cleared the account. As to Counts XVIII and XIX respectively, settlement funds belonging to Respondent's clients Viola Lenard and Melvin Jackson were deposited into the Bank One Account on November 13, 2001. However, the account was overdrawn before Respondent's check to Lenard for $250.00 or his check to Jackson for $759.90 cleared the account.

As to Count XX, settlement funds for Respondent's client Elizabeth Truly were deposited into the Bank One Account when it was overdrawn. Between the date of the deposit and the date Respondent's check to Truly for $150.00 cleared the account, the account was overdrawn. In

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addition, the account was overdrawn before Respondent's subsequent check for $50.00 to Regional MRI of Chicago, for its services to Truly cleared the account.

Other counts, specifically Counts IV, V, IX, XII and XIII, involve situations in which the Bank One Account was overdrawn before checks cleared the account which had been written to third parties entitled to payment from the funds Respondent had received on behalf of his clients.

The Bank One Account was overdrawn before Respondent's check to the Illinois Department of Public Aid (IDPA) for $550.00 on behalf of his client Alicia Patterson cleared the account (Count IV). The check to IDPA was dishonored when initially presented for payment, necessitating representment before the check was honored. IDPA was entitled to receive this payment out of the settlement funds Respondent received on behalf of Patterson. While Respondent denied he was required to disburse the money for Patterson and asserted the money came from his funds, not Patterson's, we do not find that testimony credible. Respondent acknowledged the purpose of the check to IDPA was to pay a lien on Patterson's matter. Also, Respondent's check to IDPA is dated within days after the Patterson settlement was deposited into the Bank One Account. This contradicts Respondent's assertion he had overlooked the need to pay IDPA and payment was made much later with his funds, not Patterson's.

The Bank One Account was similarly overdrawn before Respondent's $1,000.00 check to Dr. Palumbo concerning Jeanette Walsh (Count V) cleared the account. Although Respondent testified otherwise, it is clear Dr. Palumbo was to be paid from Walsh's settlement. Respondent acknowledged Walsh had outstanding medical bills. He obviously knew one of those bills was from Dr. Palumbo; within days after depositing Walsh's settlement funds, Respondent issued a check to Dr. Palumbo with Walsh's name noted on the check.

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Similarly, the Bank One Account was overdrawn before two checks totaling $179.47 Respondent wrote to medical providers for his client Rosemary Larkin (Count IX) cleared the account. The account was also overdrawn before checks cleared that Respondent had written to medical providers for $236.00 for his client Michelle Williams (Count XII) and $90.00 for his client DeShawn McDougle (Count XIII).

As to Count XXI, the Bank One Account was overdrawn before any funds were disbursed either to Respondent's client Robert Edwards or on his behalf. Respondent contends he was entitled to the entire amount received on the Edwards case. We reject this theory.

According to the admitted allegations of the First Amended Complaint, Respondent represented Edwards in connection with an automobile accident that occurred in April 2001 and received funds totaling $2,000.06 concerning the Edwards matter in November 2001. For us to accept Respondent's theory that he was entitled to keep the entire $2,000.06 would require us to assume that, in a small case resolved within six months, Respondent incurred costs exceeding $1,300.00, the balance of the funds received after deduction of a one-third contingent fee. There is absolutely no basis for such an assumption.

Likewise, even if the medical providers who treated Edwards were in fact paid through another source, as Respondent claimed, Respondent was not at liberty to keep their portion of the funds. That money would have belonged either to Respondent's client or the entity that paid the medical providers. An attorney cannot simply "help himself" to whatever funds may be within reach. In re Kitsos, 127 Ill. 2d 1, 11, 535 N.E.2d 792 (1989).

Thus, as to all counts of the First Amended Complaint, the Administrator proved conversion.

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Based on the evidence presented, particularly viewed in its entirety, we find Respondent acted with a dishonest intent in his conduct as to the Bank One Account and the Administrator proved, by clear and convincing evidence, Respondent violated Rule 8.4(a)(4).

A pattern of misuse of a client trust account supports a finding of dishonest intent. Conner, 08 CH 119. That is particularly true where, as in this case, the misuse leads to repeated overdrafts on the account. Id.

Respondent engaged in an ongoing pattern of misuse of the Bank One Account. We find the pattern of misuse demonstrated by the evidence presented establishes Respondent acted with a dishonest intent in relation to the Bank One Account.

Respondent actively used the Bank One Account. He clearly knew the account contained client funds. Respondent deposited funds into the Bank One Account. Often those deposits included client funds.

Respondent also regularly wrote checks on the Bank One Account. Some checks bear notations relating the check to a particular client. Often, however, Respondent wrote checks on the account without relating the check to any specific client, particularly a client for whom Respondent was to be holding funds in the account at the time.

The Bank One Account was frequently overdrawn. Overdrafts resulted from checks Respondent wrote for purposes unrelated to clients for whom he was to be holding funds.

In some cases, checks written to a client or to meet a client's obligations were returned for insufficient funds and had to be presented a second time before being honored. The harm to those clients is clear; payment to the client (Count I) or an entity to which the client owed money (Count IV) was delayed because the check was originally dishonored. In re Elias, 114 Ill. 2d

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321, 338, 499 N.E.2d 1327 (1986). Respondent's clients were also harmed by his practice of issuing checks he knew might be dishonored upon presentment. Elias, 114 Ill. 2d at 338.

The evidence presented also demonstrates Respondent knew of the status of the account. Respondent often replenished the Bank One Account, with his own funds or funds from Milks and Benno, if the account became overdrawn. For example, after the check to Davis (Count I) was dishonored, Respondent deposited funds from a personal account into the Bank One Account. In some instances, the amount by which the account was replenished correlated with the amount needed to cover an overdraft or outstanding checks. An obvious example is the correction of the overdraft on June 4, 2001 with a $100.00 deposit from Milks and Benno, enabling a check for $100.00 presented that day to clear the account. Other situations which exemplify Respondent's practice of covering overdrafts include the deposit of $3,000.00 from the Milks and Benno account at a time when, even after depositing Liberatore's settlement funds (Count II), the Bank One Account remained overdrawn by nearly $2,300.00 and the deposit of $1,000.00 from Milks and Benno to cover, albeit temporarily, the overdraft on November 13, 2001 (Counts XVI, XVIII, XIX).

Respondent's conduct also demonstrates he knowingly used the account for his own purposes and without regard to safeguarding client funds in the account. This is apparent in the numerous checks Respondent wrote on the account for his own personal or business purposes.

The most obvious example of checks Respondent wrote for his own purposes are the checks Respondent wrote to himself and cashed. These are in addition to the multiple checks Respondent wrote to himself for larger amounts and deposited. The exhibits contain numerous checks, payable to Respondent and endorsed in blank. Some of these checks bear a driver's license number. These factors, and the amounts of the checks, are consistent with the checks

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being cashed. There is nothing to correlate those checks to fees or costs reimbursements for any specific cases. The frequency with which Respondent wrote checks which were cashed, the amounts of those checks, and the lack of any connection between the checks and particular cases are all incompatible with Respondent's attempt to explain his practice of cashing checks on the Bank One Account as an accommodation to his clients to provide them with cash. Rather, the circumstances indicate Respondent was using the account as a source of cash for himself.

Respondent wrote additional checks on the account which were clearly for his own purposes. Respondent admitted some of these checks were for his own purposes, including checks for taxes and office rent. Respondent paid bills for telephone service from the Bank One Account; we find such payments were for Respondent's own purposes. Respondent wrote checks on the Bank One Account to the Union League Club, Sam's Club and Architectural Digest. There is nothing to correlate these checks to the purposes of any client. Several checks were written to the Postmaster. While Respondent asserted those checks represented costs for postage and shipping on individual client matters, we do not credit that testimony, given the amount of the checks and the lack of any connection between the checks and specific files.

Respondent wrote numerous checks on the Bank One Account to Ed Carey. Respondent testified Carey ran errands for Respondent and transported clients to his office.2 Respondent testified his payments to Carey were for specific cases. Yet these checks frequently were issued for hundreds of dollars, inflated amounts for the types of services Respondent described. Further, there is no correlation between checks to Carey and services performed for the clients whose funds Respondent was to be holding at the time in the Bank One Account. Checks to Carey preceded some of the overdrafts in the Bank One Account. The checks to Carey likewise

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were for Respondent's purposes, rather than purposes of the clients for whom Respondent should have been holding funds in the account.

The overdrafts established by the evidence occurred after checks cleared the Bank One Account that were unrelated to the purposes of the clients for whose benefit Respondent was to be holding funds. In many instances, checks payable to Respondent cleared the account prior to the overdrafts. For example, a check payable to Respondent for $1,000.00 cleared the Bank One Account before the overdraft on September 7, 2001 (Counts V and VI). Multiple checks payable to Respondent cleared the Bank One Account before it was overdrawn on October 5, 2001 (Count IX). When Respondent should have been holding funds for Young and before the October 15, 2001 overdraft (Count X), over $6,000.00 in checks to Respondent cleared the Bank One Account. Multiple checks to Respondent plus checks for Respondent's purposes cleared the Bank One Account before the October 26, 2001 overdraft (Counts X, XII, XIII, and XV).

The evidence as a whole demonstrates Respondent knowingly and deliberately used the Bank One Account for his own purposes. The evidence presented, particularly when viewed in its entirety, contradicts Respondent's attempt to characterize his conduct as inadvertent, unintentional errors. Thus, we find the Administrator proved Respondent's conduct violated Rule 8.4(a)(4).

The Court's recent opinion in In re Mulroe, 2011 IL 11178 does not alter our conclusion Respondent violated Rule 8.4(a)(4). In Mulroe, the Court affirmed the Hearing Board's findings that Mulroe engaged in conversion and other misconduct but, given the facts of that case, the Administrator had not proven by clear and convincing evidence Mulroe's conversion also violated Rule 8.4(a)(4). In affirming those findings, the Court relied on the deference afforded to

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the Hearing Board's factual findings, given the Hearing Board's role as trier of fact. In re Mulroe, 2011 IL 111378 pars. 18-19, 22.

The Court observed in past cases in which no violation of Rule 8.4(a)(4) was found there was no evidence the misconduct was intentional, while in past cases in which a violation of Rule 8.4(a)(4) was found, there was some act or circumstances that showed the respondent's conduct was purposeful. Id. at pars. 21-22.

The circumstances surrounding conversion cases vary greatly. Id. at par. 23. In Mulroe, there was nothing to indicate any deceptive or dishonest intent on Mulroe's part and no evidence Mulroe gained any advantage through his sloppy bookkeeping practices. Id. at par. 22. However, the Court explicitly recognized a pattern of improper behavior in dealing with client funds may indicate dishonest intent. Id. Based on the facts and circumstances of this case described above, including the pattern of repeated improper handling of client funds, we have found Respondent acted with a dishonest intent and, consequently, the Administrator established a violation of Rule 8.4(a)(4) by clear and convincing evidence.

Conversion of client funds puts the client's money at risk and is disreputable not only for the attorney involved but for the entire legal profession. In re Lewis, 118 Ill. 2d 357, 362-64, 515 N.E.2d 96 (1987). Lawyers are trustees of the judicial system and must, consistent with Rule 8.4(a)(5), refrain from conduct that is prejudicial to the administration of justice. In re Smith, 168 Ill. 2d 269, 287, 659 N.E.2d 896 (1995).

Respondent engaged in a pattern of misconduct which adversely affected sixteen clients. Particularly where multiple clients are affected, conduct such as Respondent's leaves the public to question the integrity of lawyers and the legal process, thereby undermining confidence in the

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administration of justice. Respondent acted intentionally, knowingly and deliberately using for his own purposes an account which contained client funds.

We have discussed at length above the facts supporting our finding of dishonest intent. The facts are also detailed below in relation to the factors in aggravation. Given all of these circumstances, we conclude Respondent's conduct also violated Rule 8.4(a)(5) and Supreme Court Rule 770. Lewis, 118 Ill. 2d at 362-63; In re McBride, 95 SH 877, M.R. 14540 (June 30, 1998) (Review Bd. at 14-15).

Before discussing the recommended sanction, we address Respondent's objections to the delay in bringing these charges.

There is no statute of limitations in disciplinary proceedings. In re Ettinger, 128 Ill. 2d 351, 367, 538 N.E.2d 1152 (1989). For disciplinary proceedings to be barred due to delay, the respondent must show the delay caused prejudice to his or her ability to present a substantial defense. Ettinger, 128 Ill. 2d at 367.

Although several years had passed between the conduct at issue and the filing of the Complaint, the facts surrounding the charges involved Respondent's use of his client trust account, charges proven primarily through the bank records, rather than witness testimony. These bank records were available to both parties.

In his pretrial motions, Respondent asserted he routinely destroyed files and financial records after seven years, consistent with Supreme Court Rule 769, thus he was prejudiced by requests for documents after this time period. However, as pointed out by the Administrator, Respondent was aware these records had been subpoenaed in 2006. Further, the Administrator's counsel and Respondent's counsel also discussed these records in 2006. The Administrator

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asserted Respondent knew of the investigation well before the expiration of the seven year time frame and before he destroyed any records, and the Hearing Panel agrees.

Additional support for this finding comes from the various exhibits attached to Administrator's pretrial pleadings in response to Respondent's motion to dismiss. Those exhibits included a copy of a letter dated October 24, 2006 from counsel for the Administrator to Thomas Benno, who was then representing Respondent. In that letter, counsel for the Administrator referenced prior communications with Benno and listed numerous specific matters included in the Administrator's investigation of Respondent's use of his trust account in 2001. The itemized matters included all of the clients' cases at issue in the First Amended Complaint. The same matter had also been considered by the Inquiry Board in 2008, as Administrator's exhibits show.

During closing argument, counsel for the Administrator contended Respondent willfully destroyed files after he knew the investigation had begun. While that conduct was not charged, and the panel makes no determination of such willful conduct, given the background of this matter as set out above and Respondent's statements indicating he knew of the investigation long before the Complaint was filed, Respondent was at a minimum on notice of the potential need to retain those files well before seven years expired. Thus, the absence of files and records did not result from a delay in filing the Complaint, but from Respondent's own conduct, at a time when he knew or should have known the files and records might be needed to assist in his defense.

Given these circumstances, conduct by the Administrator did not hamper Respondent's ability to present a substantial defense.

RECOMMENDATION

Determining the discipline to recommend involves evaluating the evidence, the respondent's past record and attitude at the disciplinary proceedings, and the best interests of

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society. In re Timpone, 208 Ill. 2d 371, 385, 804 N.E.2d 560 (2004). We also consider the purposes of the disciplinary system, which are to safeguard the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach. In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994). Predictability and fairness require some consistency in the sanctions for similar misconduct, but each case is to be resolved based on its unique facts and circumstances. Chandler, 161 Ill. 2d at 472. In addition to the proven misconduct, aggravating and mitigating circumstances are considered in determining the sanction. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991); In re Marshall, 08 CH 91 (Hearing Bd. June 20, 2011).

Given all the facts and circumstances of this case, we recommend Respondent be disbarred.

Respondent's proven misconduct involves multiple conversions of client funds. The evidence established a pattern of conduct leading to repeated overdrafts in the Bank One Account, resulting in the numerous conversions proven here. Conversion of client funds is a gross violation of an attorney's professional responsibilities, warranting disbarment absent mitigating circumstances. In re Blank, 145 Ill. 2d 534, 555, 585 N.E.2d 105 (1991); In re Stillo, 68 Ill. 2d 49, 54, 368 N.E.2d 897 (1977).

A pattern of misconduct merits more severe discipline than a single incident alone. See In re Lewis, 118 Ill. 2d 357, 363, 515 N.E.2d 96 (1987); In re Cohen, 98 Ill. 2d 133, 146, 456 N.E.2d 105 (1983). We have found Respondent acted intentionally. A pattern of intentional conversions is extremely serious misconduct which can warrant disbarment even when some mitigating factors are present. In re Feldman, 89 Ill. 2d 7, 431 N.E.2d 388 (1982). Respondent did not present any character testimony or any other significant mitigating evidence.

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Disbarment is warranted in cases, such as this one, involving a pattern of dishonest and intentional misuse of a client trust account over time, resulting in multiple overdrafts when the attorney should have been holding funds on behalf of clients. In re Conner, 08 CH 119, M.R. 24471 (May 18, 2011); In re Hubka, 95 CH 205, M.R. 12876 (Nov. 26, 1996). This is particularly true where, as here, nothing was presented to mitigate the seriousness of the misconduct. Hubka, 95 CH 205 (Hearing Bd. at 14). Our conclusion that the conversions resulted from an established pattern of behavior on Respondent's part, rather than oversight or isolated errors, is significant to our decision to recommend disbarment. Id. at 11.

Although the attorneys in Conner and Hubka engaged in additional misconduct not present here, that distinction does not warrant a lesser sanction for Respondent. It is our opinion the Respondent's pattern of misconduct coupled with his prior discipline warrant disbarment.

Respondent argues, in mitigation, that funds were converted for a short time and in relatively small amounts. These can be mitigating circumstances. In re Elias, 114 Ill. 2d 321, 339-40, 499 N.E.2d 1327 (1986). However, Respondent's effort to characterize his conduct as short term conversion of small sums does not consider the evidence as a whole.

In some situations, such as Count IX involving Larkin, a small amount of money was converted for a short time. However, this is not true of all the funds converted. Some of the individual conversions lasted for a long time, such as Count XX where a portion of Truly's settlement was converted for nearly a year, and Count I where the check to Davis for $1,275.00 bounced when presented and Counts X and XXI, where no funds were paid to Edwards. Other conversions involved larger sums. Counts I, III, V, X, and XXI all involved amounts that equaled or exceeded $1,000.00.

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Further, as we have found a pattern of misuse of the Bank One Account, this case is not properly considered by isolating individual instances of conversion. Instead, we consider the circumstances as a whole and the fact that a pattern of misconduct is involved. See Lewis, 118 Ill. 2d at 361. Here, the Administrator proved Respondent converted funds of sixteen clients, in an aggregate amount exceeding $12,000.00.

Ultimately, the checks Respondent wrote to his clients or their medical providers cleared the Bank One Account. However, this does not equate with complete restitution, particularly not as to all of the clients involved. A failure to make complete restitution is an aggravating factor. In re Fox, 122 Ill. 2d 402, 410, 522 N.E.2d 1229 (1988). Respondent kept the entire Edwards settlement, without a legitimate basis for doing so. As to other counts, such as Count IX (Larkin), Respondent distributed a portion of the settlement proceeds to the client and medical providers, but disposition of the full settlement proceeds remains uncertain even accounting for Respondent's fee.

Several additional aggravating factors are present.

Respondent clearly lacks an understanding of the proper method of using a client trust account. Respondent testified he deposited all receipts, from whatever source and for whatever purpose, into the Bank One Account. Respondent was not separately charged with commingling client funds. However, this can be considered in assessing sanction as there is a clear nexus between Respondent's use of the Bank One Account and the conversions charged and commingling is readily apparent from Respondent's testimony and the Administrator's exhibits. See In re Storment, 203 Ill. 2d 378, 400, 786 N.E.2d 963 (2002); Elias, 114 Ill. 2d at 336-37. Further, our purpose in considering this aspect of Respondent's use of the Bank One Account is as an indicator of his lack of understanding of his professional responsibilities.

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Respondent testified he deposited all funds he received, regardless of their source or purpose, in the Bank One Account in reliance on advice from his accountant. That advice was clearly incorrect under both established Supreme Court precedent and Rule 1.15 of the Illinois Rules of Professional Conduct. Nearly 30 years ago, the Court expressed incredulity that attorneys continued to commingle client funds with their own, given the frequency with which the Court had, at that time, "emphatically and unequivocally condemned" commingling. In re Grant, 89 Ill. 2d 247, 253, 433 N.E.2d 259 (1982). The problem, of course, is that failure to comply with these basic principles concerning the manner in which client funds are to be handled can readily result in conversion, while compliance with the rules for segregating client funds avoids this outcome and insures the integrity and safety of client funds while they are in the possession of the attorney. Elias, 114 Ill. 2d at 333.

Respondent is obligated to know and follow the Rules of Professional Conduct. In re Vrdolyak, 98 CH 17, M.R. 16866 (Sept. 22, 2000) (Review Bd. at 15). The Rules, which control even in the face of prior conflicting legal precedent, In re Vrdolyak, 137 Ill. 2d 437, 421-22, 560 N.E.2d 840 (1990), similarly control over contrary advice from a non-lawyer concerning a matter specific to legal practice, particularly where, as here, the Rules clearly and unequivocally address the issue.3

Given both established Supreme Court precedent and the clear directives in the Rules of Professional Conduct, any suggestion that Respondent did not fully understand the duty to safeguard client funds is completely unacceptable. Grant, 89 Ill. 2d at 253.

Respondent's failure to understand the nature or severity of his misconduct is an aggravating factor, as it casts doubt on Respondent's ability to recognize his professional responsibilities and to conform his future conduct to ethical standards. In re Samuels, 126 Ill. 2d

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509, 531, 535 N.E.2d 808 (1989). Attempts to shift blame onto others, e.g., the accountant for incorrect advice or Respondent's bookkeeper for not alerting him to problems in the trust account, likewise indicate a lack of understanding and recognition of his own misconduct. Samuels, 126 Ill. 2d at 531.

In addition to the factors noted above, Respondent's testimony and presentation strongly suggest Respondent still believes there was no significant problem with the manner in which he used the Bank One Account, so long as he could ultimately cover the amount due to his client. Not only is this obviously incorrect, see Rule 1.15, but, as discussed below, Respondent has already been disciplined for conversion of client funds in relation to this same account. At a minimum, the prior disciplinary proceeding should have impressed upon Respondent that his method of using the Bank One Account was improper. Instead, in this proceeding, Respondent still does not seem to understand his prior errors and seeks to defend his conduct.

Respondent's own view of himself and his legal abilities, in this his third disciplinary case, is also quite troubling. After stating Dr. Palumbo often referred his patients to Respondent for legal representation, Respondent testified Dr. Palumbo would tell his patients:

I think David Milks is the greatest attorney in Chicago. If you need an attorney, you really want to go to him on your personal injury case. There's none finer. You can't do better than him. (Tr. 128).

Respondent concluded by stating: "I don't know why he (Dr. Palumbo) said it, but it was true." (Tr. 128). This answer suggests a lack of recognition of his misconduct, leading to the conclusion there is no reason to believe Respondent would change his behavior in the future.

Also, Respondent was not fully candid in his testimony. A lack of candor before the Hearing Board is an aggravating factor. In re Gorecki, 208 Ill. 2d 350, 366, 802 N.E.2d 1194 (2003).

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When asked whether he was currently employed, Respondent volunteered he was retired. Actually, however, Respondent was suspended. Milks, 05 CH 44. This attempt to conceal something so easily verifiable causes us to doubt his testimony.

Respondent also proffered an explanation for a check written on the Bank One Account which reinforces our view Respondent was not forthright in his testimony. One of the checks Respondent wrote on the account was for $1,550.00 to a Lloyd Washington. When asked about this check, Respondent testified a person named Lloyd Washington did investigation work for him, but that check was not payment to that person. Instead, according to Respondent, this check was for a settlement due to an unnamed client who ostensibly directed Respondent to write the check to "Lloyd Washington." Suffice to say the Hearing Board finds this testimony to be, at a minimum, completely illogical.

Respondent also has been disciplined in the past. Prior discipline is an aggravating factor, which can warrant a significant increase in the discipline that would otherwise be imposed for the misconduct at issue. Storment, 203 Ill. 2d at 401.

The impact of prior discipline in aggravation is not as significant where the misconduct currently at issue occurred about the same time as the conduct for which prior discipline was imposed. In re Howard, 188 Ill. 2d 423, 442, 721 N.E.2d 1126 (1999). In such cases, the respondent is not technically a recidivist. In re Teichner, 104 Ill. 2d 150, 167, 470 N.E.2d 972 (1984). However, it is legitimate in such cases to consider the sanction which likely would have resulted had the misconduct been prosecuted in the ordinary sequence or if misconduct occurring at about the same time had been prosecuted simultaneously. Teichner, 104 Ill. 2d at 167-68.

The misconduct at issue here involved misuse of client funds during 2001, extending into 2002 as to one count, Count XX. The misconduct in Milks II occurred primarily in December

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2001, post-dating most of the misconduct at issue in these proceedings. However, Respondent is still properly considered a recidivist. This is his third disciplinary proceeding. The misconduct which led to Respondent's suspension in Milks I predated the misconduct in both this case and Milks II.

In addition, Milks I was pending and discovery and prehearing proceedings were being conducted in 2001. The fact that Respondent engaged in his current misconduct while another disciplinary proceeding was pending against him is a serious aggravating factor. Milks, 05 CH 44 (Review Bd. at 15); In re Davies, 01 CH 60, M.R. 18141 (Sept. 19, 2002).

The misconduct in Milks I primarily involved solicitation and assisting non-lawyers in the unauthorized practice of law. Milks, 99 CH 20. This is serious misconduct, though different from Respondent's current misconduct. However, Milks I also included misconduct similar to that here, arising out of Respondent's failure to properly disburse settlement funds.

In addition, since conduct for which Respondent was disciplined in Milks I included failure to maintain records, his current claims that he destroyed files and, therefore, did not have them available for use in his defense are particularly disingenuous. Further, the discipline in Milks I would have required Respondent to maintain these records. S.Ct. R. 764(a).

Most of the misconduct for which Respondent was disciplined in Milks II involved mishandling of funds belonging to two clients. Essentially Respondent paid each client one-third of the proceeds he had received for her and retained most of the balance. Most of the misconduct in this case predated the misconduct in Milks II. However, Respondent should have learned something from Milks II about the proper way to handle client funds. Unfortunately, as demonstrated by his testimony in this matter, it does not appear that Respondent learned anything, as it is clear he still does not understand how an attorney is to handle client funds.

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The purpose of discipline is not punishment, but to determine whether an individual should be permitted to practice law. In re Smith, 168 Ill. 2d 269, 295, 659 N.E.2d 896 (1995). Given all the circumstances here, we conclude this Respondent should not be permitted to do so and we recommend that Respondent be disbarred.

Date Entered: October 18, 2011

John M. Steed, III, Chair, with Roxanna M. Hipple and Cheryl M. Kneubuehl, Hearing Panel Members.

_______________________
1 At times during these proceedings, Thomas V. Benno represented Respondent. 

2 At the Milks I hearing in March 2002, Respondent testified Ed Carey still worked for him.  Carey had done "running" and "outside work" for Respondent in relation to the Milks I charges.  In re Milks, 99 CH 20, M.R. 18895 (Nov. 14, 2003) (Hearing Bd. at 4-5). 

3 During the hearing, Respondent stated that the accountant who advised him was the same accountant who had advised Basil Chris Elias.  Elias was disciplined for improperly handling client funds.  In re Elias, 114 Ill. 2d 321, 499 N.E.2d 1327 (1986).  The fact that Respondent would volunteer information connecting himself with the accountant who advised Elias further demonstrates Respondent's lack of understanding of the rules concerning handling of client funds and the importance with which the Court views those rules.