Filed March 23, 2011

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

In the Matter of:

BERNARD JAMES CONWAY,

Attorney-Respondent,

No. 6194926.

Commission No. 09 CH 72

REPORT AND RECOMMENDATION OF THE HEARING BOARD

INTRODUCTION

The hearing in this matter was held on August 25, 2010, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC"), before a Hearing Board Panel consisting of Michael L. Bolos, Chair, Terence M. Heuel, and Harry M. Hardwick. The Administrator was represented by Allison Wood. Respondent appeared in person and was represented by Samuel Manella.

PLEADINGS

On August 19, 2009, the Administrator filed a one-count Complaint against Respondent pursuant to Supreme Court Rule 761(d). The Complaint alleges that Respondent committed a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects and failed to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction. On March 22, 2010, Respondent filed an Answer to Complaint in which Respondent admitted some of the factual allegations and denied some of the factual allegations. Respondent denied all allegations of misconduct.

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THE EVIDENCE

The Administrator presented the testimony of Carie L. O'Donnell. The Administrator's Exhibits 1-8 were admitted into evidence. Respondent testified on his own behalf. Respondent presented the character witness testimony of Charles Subecz, Charles Wagner and Daniel Murphy. Respondent's four exhibits were admitted into evidence.

Beginning October 1, 2008, Respondent rented a house located at 1125 Shore Drive, New Buffalo, Michigan ("Shore Drive property"), from Lake Effect Vacation Rentals ("Lake Effect"). Lake Effect was owned by Carie L. O'Donnell ("O'Donnell"). Respondent signed a lease to rent the Shore Drive property from O'Donnell from October 1, 2008 through April 30, 2009. Respondent agreed to pay O'Donnell $1,200 per month plus the cost of utilities, snow removal and hot tub maintenance. O'Donnell agreed to allow Respondent to have a dog on the property as long as he cleaned up after the dog. (Tr. 25-28; Adm. Ex. 1).

On November 3, 2008, Respondent gave O'Donnell his check number 999991, which he had drawn on JPMorgan Chase Bank account number 808321509. Respondent had made the check payable to "Lake Effect Rentals" in the amount of $1,200 and he provided it to O'Donnell in payment of his rental obligations for the Shore Drive property for October and November 2008. Respondent did not sign the check. Respondent also paid $1,200 for a security deposit which he placed on his debit card. (Tr. 29-30, 47-48, 51; Adm. Exs. 1, 2; Resp. Ans.).

Upon receipt of check number 999991, O'Donnell deposited the check into her personal account at New Buffalo Savings Bank. The check was returned twice by JPMorgan Chase Bank to New Buffalo Savings Bank for nonsufficient funds. Respondent stated that the account was insufficient because a check that was deposited into the account was also insufficient.

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Respondent stated that he was unaware that the account was overdrawn. (Tr. 51-52; Adm. Exs. 3, 4; Resp. Ans.).

On November 20, 2008, Respondent stated that he spoke to O'Donnell about the NSF check. Respondent stated that he explained what happened with his bank account. He also told O'Donnell that he was struggling to make the rent payments and no longer wanted to rent the property. O'Donnell stated that Respondent came into her office to discuss the returned check but he did not pay any money. Shortly thereafter, Respondent vacated the property. (Tr. 32, 55).

Respondent stated that a couple days after he spoke to O'Donnell, she informed Respondent that he needed to pay the outstanding rental amounts or she was going to press charges. Respondent informed O'Donnell that he did not have the money to pay her. (Tr. 56).

On November 24, 2008, O'Donnell sent a copy of a Bad Check Notice to Respondent via registered mail to the Chicago address he listed on the rental agreement. O'Donnell stated that Respondent did not receive the notice because it came back to her as restricted delivery. Once the notice was returned, O'Donnell went to the police department and filed a report. (Tr. 33-34; Adm. Exs. 3, 4).

On April 15, 2009, Respondent was charged in an information filed in the Circuit Court of Berrien County, Michigan, with having committed the offense of presenting for payment an NSF check in the amount of $500 or more. The matter was recorded and docketed in the Circuit Court of Berrien County, Michigan, as People v. Conway, No. 2009000650-FH. On April 20, 2009 was convicted in case number 2009000650-FH of the offense of Check-NSF $500 or more, in violation of MCL 750.131(3)(c). On May 18, 2009, the Honorable Angela M. Pasula sentenced Respondent to one year of probation. Judge Pasula further ordered Respondent to make restitution in the amount of $1,227 to Lake Effect; pay a fine in the amount of $300 and

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court costs in the amount of $100; to have no contact with O'Donnell, and not be within 500 feet of O'Donnell's residence or place of business. (Adm. Exs. 5, 6; Resp. Ans.)

Respondent stated that he retained counsel and entered into a plea negotiation. Respondent stated that he pled a conditional guilty plea that was subject to terms and conditions that the judge laid out. Respondent stated that if he completed the conditions, the guilty plea would be set aside, the case dismissed and expunged from the public records. Respondent stated that he did not plead to a misdemeanor because he did not think the situation warranted it and he did not want the conviction on his record. Respondent stated that he complied with the terms of the probation. (Tr. 57-58).

Respondent stated that when he completed the conditions set by the judge, he went before Judge Pasula. At that time, Respondent received confirmation that his case was dismissed. (Tr. 59; Resp. Ex. 3).

Pursuant to Supreme Court Rule 761(a), Respondent was required to notify the Administrator of his conviction in case number 2009000650-FH on or before May 20, 2009. Prior to the hearing in this matter, Respondent did not notify the Administrator of his felony conviction in case number 2009000650-FH. Respondent stated that he did not make a report to the Administrator regarding the case.

Evidence Offered In Aggravation

Carie O'Donnell lives in New Buffalo, Michigan. O'Donnell owns rental property in New Buffalo and works as a real estate agent. O'Donnell owns the Shore property and rented the property to Respondent. The contract that O'Donnell and Respondent entered into stated that Respondent was responsible for paying the utilities, remove snow, maintain the hot tub and clean

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up after his dog. The utilities bills remained in O'Donnell's name though she gave the bills to Respondent who would then pay the bills. (Tr. 24-29; Adm. Ex. 1).

O'Donnell stated that after she learned that Respondent's November rent check was returned for insufficient funds, she called Respondent and asked him to come to her office. O'Donnell stated that Respondent came to the office and threatened that he was an attorney and he did not pay the rent. O'Donnell stated that he left the office, returned to the Shore property to collect his things and vacated the house. O'Donnell stated that she called the police and completed the information to press charges against Respondent. In December 2008, O'Donnell learned that Respondent did not pay the utility bills. O'Donnell stated that charges were brought against Respondent and she participated in the court case. O'Donnell stated that she appeared in court on numerous occasions. O'Donnell stated that she received restitution for the $1,200 rent check. (Tr. 32-36; Adm. Exs. 2, 3, 4).

O'Donnell stated that she filed a claim against Respondent in small claims court. O'Donnell stated that Respondent "destroyed the house." O'Donnell stated that it cost close to $4,000 to repair the rental property. O'Donnell stated that there were three hearings held in the small claims case. Respondent did not appear at the first two hearings. On June 22, 2009, Respondent arrived late to the third hearing and a judgment was ordered against him in the amount of $3,135.50. (Tr. 37-38; Adm. Exs. 8, 9).

O'Donnell stated that Respondent has not paid any portion of the judgment. Respondent stated that he wants O'Donnell to register the judgment in Cook County, Illinois so he can countersue her for defamation and libel. O'Donnell has not attempted to collect the judgment against Respondent. O'Donnell stated that she has spent a lot of time away from her business in order to recover from the losses caused by Respondent's conduct. O'Donnell stated that after

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Respondent left, she could not rent the property for four or five months because she did not have the money to get it fixed. O'Donnell stated that her impression of attorneys has changed based on her interaction with Respondent and that she is starting to think that attorneys are not ethical. (Tr. 39-41, 61).

Evidence Offered In Mitigation

Charles Joseph Subecz

Charles Subecz owns a guitar company. Mr. Subecz has known Respondent for three years. Respondent was recommended to Mr. Subecz for personal and business legal matters. Mr. Subecz stated that Respondent has a good reputation in the community for truth and veracity. Mr. Subecz stated that he was not aware that Respondent pled guilty to the insufficient funds charge related to the Michigan rental property. (Tr. 17-23).

Daniel Murphy

Daniel Murphy is a salesman for Menards. Mr. Murphy has known Respondent for almost 40 years. Mr. Murphy's dealings with Respondent are primarily social. Mr. Murphy stated that Respondent is a stand-up guy. Mr. Murphy stated that Respondent has a very good reputation for truth and veracity. (Tr. 87-90).

Charles Wagner

Charles Wagner owns a printing company. Mr. Wagner has known Respondent for about 30 years. Mr. Wagner knows people who have worked with Respondent who trust him implicitly with their personal financial matters and their businesses. Mr. Wagner stated that the same was true regarding Respondent's truthfulness. (Tr. 76-80).

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Respondent

Respondent is 57 year old attorney who resides in Chicago, Illinois. Respondent is married with three children. Respondent is a sole practitioner, specializing in financial matters and corporations. Respondent stated that he was extremely embarrassed and remorseful that he wrote a bad check. Respondent has no prior discipline. (Tr. 45-46, 60).

Respondent stated that he did not cause any damage to the rental property. Respondent further stated that his dog is very well trained and did not cause any damage to the property. Respondent stated that he did not appear in small claims court because he thought he would be violating his probation terms. After Judge Pasula instructed Respondent to appear, he did so; however, he did not take the time zone change into account and appeared late for court. Respondent admitted that one of the terms of his probation was to appear in small claims hearings. (Tr. 48, 61, 71).

Respondent stated that he did not report the conviction to the Commission because there was no conviction to report. Respondent acknowledged openly that he bounced a check but stated that a conviction was never entered against him. (Tr. 69-70).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is the responsibility of the Hearing Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 308 (1993). With the above principles in mind and after careful

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consideration of the testimony, exhibits and Respondent's admissions, we make the following findings.

Respondent is charged with:

  1. committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct;

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

  3. engaging in conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct;

  4. failing to notify the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction, in violation of Supreme Court Rule 761(a); and

  5. engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

The panel finds that the Administrator proved all allegations of misconduct by clear and convincing evidence. The evidence shows and Respondent admits that he drew a check for payment of the Shore Drive rental property on an account that had insufficient funds. Respondent failed to provide the funds due to O'Donnell in a timely fashion. Charges were filed against Respondent by the New Buffalo, MI police department. On April 20, 2009, Respondent was convicted of delivering a non-sufficient funded check. On May 18, 2009, Respondent was given probationary terms and a judgment of restitution. On July 16, 2009, Respondent was discharged from probation after being found to have completed all conditions and paid his financial obligations.

Respondent admitted that he bounced the check, but argues that his conviction was dismissed. Regarding this issue, the Illinois Supreme Court has held that even though "respondent's conviction was later vacated and the charge dismissed pursuant to a statutory

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provision pertaining to probation does not alter the fact that there has been an adjudication which finally determined that respondent committed a crime involving moral turpitude. It is this conduct which gives rise to the need for discipline, the purpose of which is to safeguard the public and maintain the integrity of the profession." In re Patt, 81 Ill. 2d 447, 452, 410 N.E.2d 870 (1098). And again in In re Vavrik, the Court held that "the appropriate discipline of an attorney following a conviction will not be contingent upon the technicalities of the sentencing procedure." In re Vavrik, 117 Ill. 2d 408, 413, 512 N.E.2d 1226 (1987). The evidence shows that Respondent was charged with a crime and pled guilty to the charges. Based on the evidence, the panel finds that Respondent committed a criminal act that involves dishonesty and reflects adversely on the lawyer's honesty and trustworthiness.

The evidence shows and Respondent admitted that he did not inform the Administrator of his conviction in writing within 30 days after the entry of the judgment of conviction. The entry of judgment occurred on May 18, 2009. Respondent completed the terms of his sentence on July 19, 2009. The completion of probation occurred well after the 30 day time limit outlined in Supreme Court 761(a). Therefore, the panel finds that Respondent violated the rule.

Finally, the panel finds that Respondent's misconduct defeats the administration of justice and brings the legal profession into disrepute. The law profession is held to a high standard of professional conduct and it is inherent that all attorneys follow the law. Based on Respondent's misconduct, the panel finds that Respondent violated Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770.

RECOMMENDATION

The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434,

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721 N.E.2d 1126 (1999). We should not recommend a sanction which will benefit neither the public nor the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991).

The Administrator recommends that Respondent be suspended from the practice of law for 90 days. In support of his recommendation, the Administrator offered the following cases: In re Levin, 99 CH 42, M.R. 17754 (Jan. 28, 2002) (attorney suspended for 90 days for issuing a number of checks drawn on an account with insufficient funds); In re Merriwether, 138 Ill. 2d 191, 561 N.E.2d 662 (1990), (the Court suspended an attorney for three months for conduct involving a conversion of $2,200 that he was supposed to have used to settle an Illinois Department of Public Aid lien in a personal injury matter.); and In re Underwood, 08 CH 125, M.R. 23128 (Sept. 22, 2009) (attorney suspended 90 days for engaging in check kiting between his business bank account and his client trust account in order to pay his personal and business expenses). Respondent recommends that the matter be dismissed. While every case is unique, in addition to the precedent offered by the Administrator, we find the following cases instructive in determining the proper recommendation for a sanction:

In In re Conarty, 93 CH 236, M.R. 11420 (Sept. 29, 1995), the respondent was suspended for ninety days for conduct relating to his conviction on six counts of mail fraud, illegal receipt of loan proceeds and misapplication of the loan proceeds. The respondent, in-house counsel for a bank, was only tangentially related to the fraudulent transactions.

In In re Gausselin, 04 CH 123, M.R. 20064 (May 19, 2005), the attorney was convicted of one count of mail fraud based upon his participation in a scheme to defraud and obtain money and property from third-party mortgage holders. The attorney had no prior discipline and

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completed all the terms of probation related to his conviction. By consent, the attorney was suspended for 90 days.

Along with the above stated case law and proven misconduct, we consider factors of mitigation and aggravation. In mitigation, Respondent offered character testimony regarding his good reputation for truth and veracity in the community. Respondent has never been disciplined and cooperated fully throughout the disciplinary process. While Respondent expressed remorse for bouncing the rent check, Respondent has not admitted wrongdoing.

In aggravation, there is an outstanding small claims judgment against Respondent of which Respondent has no intention of paying unless O'Donnell registers the judgment in Illinois. In addition, Respondent stated that he plans to countersue O'Donnell for defamation. O'Donnell testified to the financial harm caused by Respondent's misconduct as well as her negative opinion of the legal profession based on her experience with Respondent.

Based on the proven misconduct, precedent and factors of mitigation and aggravation, the panel recommends that Respondent be suspended from the practice of law for 90 days.

Date Entered: March 23, 2011

Michael L. Bolos, Chair, Terence M. Heuel and Harry M. Hardwick, Hearing Panel Members.