Filed March 15, 2011
In re Ronald Steven Gertzman
Commission No. 09 CH 100
Synopsis of Review Board Report and Recommendation
The Administrator charged Gertzman with neglecting a client's real estate foreclosure matter. Because Gertzman failed to timely file an answer to the complaint, the allegations against him were deemed admitted. At the hearing, the parties submitted evidence pertaining to aggravating and mitigating factors.
The Hearing Board found that Gertzman committed the charged misconduct and recommended that his license be suspended for two years.
The Administrator filed a notice of exceptions to the Hearing Board Report and Recommendation, arguing that Gertzman's suspension should run until further order of the court because he has continued to commit misconduct after having been disciplined three times.
The Review Board concluded that Gertzman's prior discipline did not have the desired effect of improving his office management practices or his understanding of his ethical obligations. Based on the relevant case law and the substantial factors in aggravation, the Review Board recommended that Gertzman's license be suspended for two years and until further order of the court.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
RONALD STEVEN GERTZMAN,
Commission No. 09 CH 100
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter comes before the Review Board on the exceptions of the Administrator-Appellant to the Hearing Board's sanction recommendation for Respondent-Appellee, Ronald Steven Gertzman. The sole issue on review is whether a suspension until further order of the court is warranted in this matter.
The Administrator charged Respondent in a one-count complaint with failing to act with reasonable diligence and promptness while representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct; failing to keep his client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information, in violation of Rule 1.4(a); failing to charge a reasonable fee, in violation of Rule 1.5(a); failing to refund promptly any part of a fee paid in advance that has not been earned, in violation of Rule 1.16(e); and engaging in conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770. The allegations of the complaint were deemed admitted due to Respondent's failure to file an answer. A hearing took place at which the parties submitted evidence in aggravation and mitigation.
The Hearing Board found that Respondent committed all of the charged misconduct and recommended that his license be suspended for two years and until he completes a law office management course. The Administrator argues that because Respondent has been disciplined three times in the past, his suspension should run until further order of the court. Respondent asks the Review Board to adopt the Hearing Board's recommendation.
Respondent has been licensed since 1972 and has been a sole practitioner for most of his career. He concentrates his practice on mortgage foreclosure defense.
THE CHOKSHI MATTER
The following facts were deemed admitted. In May 2008, Respondent agreed to defend Ramesh and Jyotsana Chokshi in an action to foreclose on a $650,000 mortgage loan for a shopping center in Algonquin. The Chokshis paid Respondent a $10,000 retainer that he would bill against at a rate of $400 per hour. The Chokshis asked Respondent to defend the foreclosure action while they refinanced the loan.
Respondent's actions on behalf of the Chokshis consisted of sending two letters to the attorney who filed the foreclosure action, Rosemary Schnepf, and communicating the loan's payoff amount to Mr. Chokshi. Mr. Chokshi delivered the payoff funds to Schnepf's firm on May 30, 2008. Schnepf dismissed the foreclosure case on June 24, 2008, and sent Respondent the release of mortgage on July 3, 2008.
Despite receiving numerous phone messages and a letter by certified mail from Mr. Chokshi, Respondent never filed the release of mortgage with the Recorder of Deeds nor provided Mr. Chokshi with an invoice for his services or a refund of the remainder of the $10,000 retainer.
Mr. Chokshi consulted another attorney, Bruce Rafalson, who sent Respondent a letter on August 18, 2008, asking why the mortgage lien remained on the Chokshis' property. Respondent did not respond to Mr. Rafalson's letter, nor did he return any of the phone calls Mr. Rafalson made to him between August and October 2008.
After Mr. Chokshi filed a complaint with the Commission, Respondent appeared for a sworn statement on June 2, 2009. He told counsel for the Administrator that he could not locate the Chokshis' file, but that he would record the release and refund the retainer by June 16, 2009. He did not do so. Mr. Chokshi obtained a copy of the release and recorded it himself on July 16, 2009. Respondent refunded the Chokshis' $10,000 retainer in January 2010.
In mitigation, Respondent testified that since 2007 he has been inundated with mortgage foreclosure cases, many of which involve clients who are in immediate danger of losing their homes. Respondent works approximately twelve hours per day on weekdays and also works on weekends. Respondent has a secretary but no associates. He admitted that he has taken on too much responsibility.
Respondent testified that he "dropped the ball" with respect to the Chokshi matter. His only explanation as to why he did not refund the Chokshis' money earlier is that he sometimes handles things very poorly in the absence of an emergency.
Respondent further testified that he did not respond to the Administrator's complaint, which was filed on August 27, 2009, because he intended to resolve the Chokshi matter and because he suffered a ruptured appendix in November 2009 and did not return to work until January 2010.
Respondent stated that in order to prevent any future misconduct he would not take on any new cases and would probably hire an associate. He would welcome a mentor or office management training to help him prevent any more problems.
Respondent was censured in 1988 for neglecting a client matter, failing to seek the lawful objectives of two clients, failing to refund an unearned fee to another client, and attempting to settle a malpractice claim against himself without advising his client of his right to consult another attorney. In re Gertzman, 86 CH 249 (Hearing Board June 17, 1988), approved and confirmed, No. M.R. 5036 (Dec. 12, 1988).
In 1996, Respondent was suspended for one year after he was found to have charged an excessive fee, failed to provide an accounting, failed to respond to the client's reasonable requests for information, and failed to respond to the Commission's requests for information. Respondent was barred from presenting any evidence in this matter due to his failure to respond to the Administrator's request to produce. On the day of his hearing, Respondent advised the Hearing Board that he appeared only to request a ruling on his motion for a continuance and would not participate in the hearing. When the Chair denied his motion, Respondent walked out of the hearing. In re Gertzman, 93 CH 597 (Hearing Board, June 21, 1995), approved and confirmed, No. M.R. 12768 (Sept. 24, 1996).
In 1998, Respondent was found to have failed to keep a client reasonably informed about the status of her matters and to promptly comply with her reasonable requests for information. This misconduct occurred in 1996, prior to the imposition of the suspension in Respondent's second disciplinary case. Consequently, the Hearing Board concluded that Respondent's prior discipline should not weigh in favor of a more severe sanction. The Hearing
Board recommended and the Supreme Court imposed a three-month suspension stayed entirely by six months of probation. As part of his probation, Respondent was required to complete a legal ethics program. In re Gertzman, 97 CH 68 (Hearing Board, August 18, 1998), approved and confirmed, No. M.R. 15289 (Nov. 24, 1998).
The Administrator challenges the Hearing Board's recommendation that Respondent receive a straight two-year suspension. The Administrator argues that Respondent's recidivism and history of failing to cooperate with the Administrator warrant a suspension until further order of the court. Respondent does not dispute that a two-year suspension is appropriate, but contends that it should not run until further order of the court.
The Hearing Board's sanction recommendation is advisory. In re Cutright, 233 Ill. 2d 474, 490-91, 910 N.E.2d 581 (2009). When making our recommendation as to discipline, we consider sanctions imposed in cases involving similar misconduct as well as the particular circumstances of the case before us, including factors in aggravation and mitigation. Cutright, 233 Ill. 2d at 491, 910 N.E.2d 581. We bear in mind that the purpose of the disciplinary process is not to punish an attorney but to protect the public, safeguard the administration of justice from reproach, and maintain the integrity of the legal profession. Cutright, 233 Ill. 2d at 491, 910 N.E.2d 581.
Except for disbarment, a suspension until further order of the court (sometimes referred to as a "suspension UFO") is the most severe sanction that an attorney can receive. In re Timpone, 208 Ill. 2d 371, 386, 804 N.E.2d 560 (2004). In order for his license to be reinstated, the suspended attorney must petition the supreme court and demonstrate his fitness to return to practice. Supreme Court Rule 767(a); Timpone, 208 Ill. 2d at 388, 804 N.E.2d 560.
Suspensions until further order of the court are appropriate when a respondent is unable to conform his or her conduct to the standards of the profession, as evidenced by the respondent's failure to understand his ethical obligations or to refrain from further misconduct after being disciplined. In re Levin, 101 Ill. 2d 535, 541-542, 463 N.E.2d 715 (1984). Timpone, 208 Ill. 2d at 386, 804 N.E.2d 560.
Although attorneys have received straight suspensions upon a third instance of discipline (In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999); In re Guilford, 115 Ill. 2d 495, 505 N.E.2d 342 (1987); In re Kink, 96 CH 420 (Hearing Board, Nov. 14, 1997), approved and confirmed, No. M.R. 14306 (Jan. 14, 1997); In re Royce, 94 CH 119, petition to impose discipline on consent allowed, No. M.R. 9853 (Mar. 30, 1994)), every Illinois attorney who has been disciplined four or more times has been required to demonstrate his fitness before returning to practice. In re Nash, 07 CH 68 (Review Board, May 28, 2009), petition for leave to file exceptions denied, No. M.R. 23293 (Nov. 17, 2009) (suspension for 30 months UFO in fourth disciplinary proceeding); In re Howard, 99 CH 34 (Review Board Dec. 6, 2001), petition for leave to file exceptions allowed, No. M.R. 17965 (Mar. 22, 2002) and 00 CH 87 (Hearing Board, May 29, 2002), approved and confirmed, No. M.R. 18260 (Sept. 19, 2002) (suspension for one year UFO in fourth disciplinary proceeding and suspension for three years UFO in fifth disciplinary proceeding); In re Chapman, 92 CH 85 (Review Board, Dec. 8, 1993) approved and confirmed, No. M.R. 9805 (Mar. 30, 1994) (suspension for five years UFO following three-month suspension, reprimand, and two-year suspension UFO).
Timpone, cited by Respondent as support for the Hearing Board's recommendation, actually supports the imposition of a suspension until further order of the court. The court suspended Timpone for 42 months and until further order of the court for misconduct
that included improperly entering into a business transaction with a client, conversion, dishonesty, and making misrepresentations to the ARDC. Timpone had been disciplined twice before, and the court stated that "[t]aking into account respondent's recidivism, we cannot say that a ‘suspension for a specified period of time,' however lengthy, as respondent suggests, is appropriate." Timpone, 208 Ill. 2d at 385-386. Accordingly, we cannot agree that Timpone supports the Hearing Board's recommendation.
Looking at the Respondent's misconduct in this matter and in prior proceedings, the Hearing Board stated that it "has tended toward the less egregious end of the scale." However, the cumulative effect of all of the aggravating circumstances suggests that a sanction greater than a two-year suspension is appropriate.
The three prior instances of misconduct are the most significant factor in aggravation. See Chapman, 92 CH 85 (Review Board, Dec. 8, 1993) at 5. We reject Respondent's assertion that he "in essence has two prior disciplines" because the misconduct at issue in the third proceeding took place before the court imposed discipline in the second proceeding. Respondent has now been found in four separate instances to have committed misconduct. The conduct that gave rise to the third disciplinary proceeding took place after he had been censured in his first disciplinary proceeding and after his hearing in the second disciplinary proceeding. Thus, Respondent should have had a "heightened awareness of the necessity to conform strictly to all the requirements of the Rules of Professional Conduct." See In re Storment, 203 Ill. 2d 378, 401, 786 N.E.2d 963 (2002).
In addition, Respondent harmed the Chokshis by failing to record the release of mortgage and failing to return their $10,000 retainer fee for almost two years and until after the Administrator filed the complaint in this matter. This harm is an aggravating factor, which is
magnified by Respondent's pattern of similar misconduct over the years. In each of Respondent's prior disciplinary cases, he was found to have neglected client matters or failed to respond to clients' requests for information. In two of his prior proceedings, he failed to return unearned fees. This pattern does not inspire confidence that Respondent fully comprehends his obligation to protect his clients' interests.
Respondent's failure to resolve the practice management problems that have led to his misconduct is especially troubling. In the past, Respondent attributed his neglect of client matters to his overly busy practice, yet failed to make any changes to prevent further neglect. He completed an ethics course intended to improve his understanding of his obligation to communicate properly with clients, yet ignored all of Mr. Chokshi's requests for information. The record shows that he has a history of overextending himself to the point that he cannot keep up with all of his responsibilities. Because Respondent's prior discipline has not had the desired effect of improving his office practices, it would be appropriate to require him to demonstrate that he has implemented changes before he is allowed to resume representing clients.
In this case, Respondent was aware that the ARDC was investigating the Chokshi matter prior to June 2, 2009, when he appeared for a sworn statement. From that point forward to the hearing, which occurred on March 31, 2010, he did nothing to demonstrate that he understood the nature of his misconduct. He took no active steps to earnestly demonstrate that he was taking corrective action of some kind. He says he will implement changes, but he had an opportunity to prove it and did nothing. Promising to change and failing to change is the pattern of his conduct in four disciplinary cases.
The Hearing Board further found that Respondent's lack of cooperation with the Administrator aggravated his misconduct. We agree. Respondent failed to answer the
complaint, which resulted in the allegations against him being deemed admitted, and did not appear for two pre-hearing conferences prior to becoming ill. This non-cooperation and his lack of cooperation in his second disciplinary proceeding demonstrate a pattern. When an attorney is inattentive to his own disciplinary proceedings, especially the fourth time through the system, it indicates "that he is not capable of representing clients in a responsible and conscientious manner." See In re Suding, 09 CH 14 (Hearing Board, Feb. 24, 2010) at 20, approved and confirmed, No. M.R. 23813 (May 18, 2010).
The disciplinary cases involving recidivism do not support the Hearing Board's recommendation of a two-year suspension with probation. See Nash, 07 CH 68 (Review Board, May 28, 2009), petition for leave to file exceptions denied, No. M.R. 23293 (Nov. 17, 2009); Howard, 99 CH 34 (Review Board Dec. 6, 2001), petition for leave to file exceptions allowed, No. M.R. 17965 (Mar. 22, 2002) and 00 CH 87 (Hearing Board, May 29, 2002), approved and confirmed, No. M.R. 18260 (Sept. 19, 2002) Chapman, 92 CH 85 (Review Board, Dec. 8, 1993) approved and confirmed, No. M.R. 9805 (Mar. 30, 1994). The court has made it clear that a suspension until further order of the court is necessary to protect the interests of the public, the profession, and the respondent when previous discipline has not caused sufficient changes in the respondent's behavior to prevent later misconduct. In re Levin, 101 Ill. 2d 535, 542-543, 463 N.E.2d 715 (1984). Moreover, the pattern of misconduct and the Respondent's failure of proof in our view demonstrate that he will not be able to conform his conduct to the standards of the profession in the future. Accordingly, we recommend that he be suspended for two years and until further order of the court.
We recommend that the Hearing Board's findings of fact and misconduct be affirmed and that the license of Respondent, Ronald Steven Gertzman, be suspended for two years and until further order of the court.
Date Entered: 15 March 2011