Filed October 16, 2009

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

In the Matter of:

GREGORY JAMES GERMAN,

Attorney-Respondent,

No. 6238851.

Commission No. 09 SH 6

REPORT AND RECOMMENDATION OF THE HEARING BOARD

DEFAULT PROCEEDING

INTRODUCTION

The hearing in this matter was held on June 25, 2009 at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Panel of the Hearing Board consisting of Leo H. Konzen, Chair, Claire A. Manning, lawyer member, and Pamela Hammond-McDavid, public member. Deborah Barnes appeared on behalf of the Administrator. The Respondent was not present at the hearing and no counsel appeared on his behalf.

PLEADINGS AND PRE-HEARING PROCEEDINGS

On February 26, 2009, the Administrator filed a four-count Complaint against the Respondent. He was charged with neglecting two civil cases (Counts I and II); neglecting two matters in which he was appointed guardian ad litem (Count III); failing to keep two clients reasonably informed of the status of their cases (Counts I and II); engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (Count II); and failing to cooperate with the Administrator in five disciplinary investigations (Count IV).

Due to the Respondent's failure to provide the Administrator with a current registration address, as required by Supreme Court Rule 756(c), service of the Complaint was made on May

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1, 2009, by serving the Clerk of the Supreme Court of Illinois, as agent for the Respondent, pursuant to Supreme Court Rule 765(b). At the time the Complaint was filed, the Respondent did not maintain an office at his registered business address, did not reside at his registered home address, and mail sent to the foregoing addresses was returned undelivered.

The Respondent did not file an Answer or otherwise plead to the Complaint. On June 1, 2008, the Administrator filed a Motion to Deem the Allegations of the Complaint Admitted Pursuant to Commission Rule 236, based upon the Respondent's failure to answer or otherwise plead to the Complaint. The Administrator's Motion to Deem the Allegations of the Complaint Admitted was granted at the close of the hearing. (Tr. 30).

THE EVIDENCE

The Administrator presented the testimony of Jeffrey Kenyon and James Burton. The Administrator's exhibits 1 through 11 were received into evidence. (Tr. 30).

Jeffrey Kenyon

Jeffrey Kenyon testified that he was one of the defendants in a lawsuit pending in Champaign County (Butler v. Zacholski and Kenyon, et al., No. 06 L 198). In the summer of 2007, Kenyon met with and hired the Respondent to represent him in the foregoing case. The Respondent requested a retainer of $750, which Kenyon paid. (Tr. 7-10).

After hiring the Respondent, Kenyon did not receive any documents pertaining to his case. Kenyon telephoned the Respondent on numerous occasions, and the Respondent told Kenyon "multiple times that he had taken care of it, don't worry about it." In about May 2008, Kenyon spoke with the Respondent again, and the Respondent said "he had it taken care of" and "would let [Kenyon] know when it was over." (Tr. 9-11).

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In September 2008, Kenyon discovered from the circuit clerk's website that the Respondent had missed a few court dates and that a default judgment had been entered against Kenyon because of his failure to appear. Kenyon then tried to reach the Respondent by telephone without success. The Respondent did not reply to Kenyon's messages. Kenyon also went to the Respondent's office and left a note under the door. He noticed that there were numerous other notes under the door. The Respondent did not reply to Kenyon's note. (Tr. 11-12). A few days later, Kenyon saw on the circuit clerk's website that the Respondent had filed (on September 9, 2008) a motion to vacate the default judgment. However, Kenyon had no contact with the Respondent about the motion. About two weeks later, Kenyon went to the Respondent's office and found it empty. (Tr. 12-13).

Kenyon then hired another attorney, Bret Kepley, to represent him in the above case. Mr. Kepley filed his appearance on October 31, 2008. (Adm. Ex. 2 at 6). Mr. Kepley has kept Kenyon informed and they have met "numerous times." Kenyon said that the matters against him in the case have been resolved. (Tr. 13-15).

Finally, Mr. Kenyon said that the Respondent has not refunded the $750 retainer that Kenyon paid. (Tr. 16).

James Burton

Mr. Burton testified that he is an investigator for the Illinois Attorney Registration and Disciplinary Commission. In April 2008, he was assigned to serve a subpoena, to appear for a sworn statement, on the Respondent. Burton traveled to Champaign where he spoke with and personally served the subpoena on the Respondent. (Tr. 17-18).

In February 2009, Burton was assigned to locate the Respondent and serve him with the Complaint filed in this matter. (Tr.18-19). Burton received information indicating that the

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Respondent left the Champaign area and was living in an extended-stay hotel in the St. Louis, Missouri area. (Tr. 18-19). In March 2009, Burton and another investigator went to St Louis in order to locate the Respondent. They found that the Respondent was registered at a hotel in Bridgeton, Missouri. They went to that hotel, introduced themselves, and asked the desk clerk for the Respondent's room number. The desk clerk would not provide the room number, but did connect Burton to the Respondent's room by telephone from the front desk. (Tr. 19).

Burton heard the telephone ring and then a man answered. Burton identified himself and asked "is this Gregory German." The man replied "yes, it is." Burton said he recognized the voice as that of the Respondent, based upon the conversation Burton had with the Respondent in April 2008. Burton asked the Respondent to come to the lobby so that Burton could personally serve him with the disciplinary complaint. The Respondent said he did not want to go to the lobby, and suggested that Burton leave the complaint at the front desk. Burton explained to him that the complaint had to be personally served on him. The Respondent again refused to go to the lobby, and he hung up. Burton waited in the lobby for about one hour, but the Respondent did not appear. Burton then exited the hotel without leaving the complaint at the front desk. (Tr. 19-21).

The complaint in this matter was sent by certified mail to the Respondent's registered address and to the hotel in Bridgeton, Missouri. A signed return receipt from the mail sent to the hotel was later received at the ARDC office. Burton looked at the signature on the return receipt, which was some kind of "lines and scribble," and said it was "exactly the same as on previous documents that we had on file that we received from Mr. German." (Tr. 22-23).

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The Exhibits

Count I

Administrator's Exhibit 1 is a copy of a Request for an Investigation of the Respondent filed by Jeffrey Kenyon with the ARDC in October 2008.

Administrator's Exhibit 2 is a copy of the Docket Sheet for the case of (Butler v. Zacholski and Kenyon, et al., No. 06 L 198, in Champaign County.

Count II

Administrator's Exhibit 3 is a copy of a complaint for a mandatory injunction, filed on September 22, 2005, in the case of JPBM Enterprises v. Frank Lipousky, No. 05 CH 216, in Vermilion County; and the defendant's motion for rehearing and to reconsider the granting of summary judgment, filed by the Respondent on November 26, 2007.

Administrator's Exhibit 4 is a copy of the Docket Sheet for the case of JPBM Enterprises v. Frank Lipousky, No. 05 CH 216, in Vermilion County.

Administrator's Exhibit 5 is a copy of a complaint for specific performance, filed on October 26, 2005, in the case of JPBM Enterprises v. Frank Lipousky, No. 05 CH 251, in Vermilion County.

Administrator's Exhibit 6 is a copy of the Docket Sheet for the case of JPBM Enterprises v. Frank Lipousky, No. 05 CH 251, in Vermilion County.

Administrator's Exhibit 7 is a copy of the order of the Appellate Court, Case No. 4-08-0373, dismissing the appeal of the appellant, Frank Lipousky, from the judgments in the above cases, Nos. 05 CH 216 and 05 CH 251.

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Count III

Administrator's Exhibit 8 is a copy of a letter, dated October 22, 2008, from Circuit Judge Arnold F. Blockman. In his letter, Judge Blockman stated that, on August 27, 2008, he appointed the Respondent guardian ad litem in the case of In re Adoption of Zheng, No. 08 AD 72, in Champaign County. A final hearing in this case was set for October 22, 2008, and notice of the hearing was sent to the Respondent. However, the Respondent failed to appear at the final hearing, never contacted the court, never moved to withdraw, and never requested that his appointment be vacated. On the morning of the scheduled hearing, the attorney for petitioners stated that she tried unsuccessfully to contact the Respondent, and that the Respondent's office telephone was disconnected. Judge Blockman was able to appoint another guardian ad litem, and the adoption was completed on the date scheduled.

Administrator's Exhibit 9 is a copy of a letter, dated November 13, 2008, from Associate Circuit Judge Brian L. McPheters. In his letter, Judge McPheters stated that the Respondent was appointed guardian ad litem for a minor in a Champaign County Case, No. 05 P 366. Notice of a hearing scheduled for November 12, 2008 was sent to the Respondent. However, the Respondent failed to appear at the hearing, and he did not explain his absence to the court.

Count IV

Administrator's Exhibit 10 is a copy of an e-mail, dated October 28, 2008, sent by Peter Rotskoff, Counsel for the Administrator, to the Respondent. In the e-mail, Mr. Rotskoff stated that he needed to speak with the Respondent "about your current status and pending investigations we have involving you,"and asked the Respondent to call Mr. Rotskoff at a telephone number provided.

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Administrator's Exhibit 11 is a copy of a letter sent by the Respondent to Mr. Rotskoff. The letter is dated October 27, 2008, and was received by the ARDC on November 3, 2008. In the letter, the Respondent stated "I wish to immediately and irrevocably surrender my license to practice law in Illinois and any other state." He also discussed his representation of Frank Lipousky (Count II).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961, 972 (2006). This standard requires a high level of certainty, greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. In re Ucherek, 07 SH 33, M.R. 22538 (September 17, 2008) (Hearing Bd. at 23).

Based upon our consideration of the Administrator's Exhibits 1 through 11, the testimony of Jeffrey Kenyon and James Burton, the Complaint, and the order by which the allegations of the Complaint were deemed admitted, we find by clear and convincing evidence that the Respondent engaged in the acts and committed the misconduct charged in the Complaint.

Count I

In regard to Count I, we find the following:

In 2007, Jeffrey Kenyon was one of the defendants in the case of Butler v. Zacholski, et al., Champaign County, No. 06 L 198. On September 4, 2007, the court granted a default judgment against Kenyon. On September 13, 2007, Kenyon met with and retained the Respondent to represent him in the foregoing case. Kenyon paid the Respondent $750 as an initial fee. On the same date, the Respondent filed a motion to vacate the default judgment against Kenyon, and the motion was granted on September 25, 2007.

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In March 2008, the Respondent received the plaintiff's discovery requests and a request for admission of facts in Case No. 06 L 198. He did not inform Kenyou of those requests. On April 18, 2008, the plaintiff's attorney filed a motion to compel responses to discovery and a motion to confess admissions of fact. The Respondent did not inform Kenyon that the foregoing motions had been filed, and did not file a response to the motions. On April 28, 2008, the court scheduled a hearing on the plaintiff's motions for May 19, 2008, and the Respondent received notice thereof. The Respondent appeared at the hearing on May 19, 2008. At the hearing, the court granted the plaintiff's motion to compel a response, and ordered Kenyon to respond to discovery within 28 days. The Respondent did not inform Kenyon of the court's order, and did not respond to the court's order.

On July 3, 2008, the plaintiff's attorney filed another motion for default judgment and another motion to compel responses to discovery against Kenyon. The Respondent received a copy of the motions. The Respondent did not inform Kenyon of the foregoing motions, and did not respond to them. The plaintiff's attorney scheduled a hearing on the motions for August 6, 2008, and the Respondent received notice thereof.

The Respondent did not appear at the hearing on August 6, 2008. At the hearing, the court granted the plaintiff's motion for default judgment against Kenyon; granted the plaintiff's motion to confess admissions of fact; ordered Kenyon to respond to outstanding discovery within 28 days; and ordered Kenyon to pay $200 in attorney fees as a sanction for failing to respond to discovery requests. The Respondent received a copy of the court's orders on about August 7, 2008, but did not inform Kenyon of them.

On September 9, 2008, the Respondent filed a motion to vacate and reconsider the orders the court had entered on August 6, 2008. He did not inform Kenyon of his filing of this motion.

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On September 11, 2008, the plaintiff's attorney filed a fourth amended complaint against Kenyon in Case No. 06 L 198 and a motion for summary judgment. On about the following day, the Respondent received a copy of the foregoing pleadings, but did not inform Kenyon that they had been filed.

The court scheduled a hearing for October 31, 2008, on the plaintiff's summary judgment motion. The Respondent received notice of the hearing, but did not inform Kenyon of the hearing. In early October 2008, Kenyon telephoned the Respondent numerous times and left messages asking the Respondent to call him. However, the Respondent did not return any of Kenyon's calls. In mid-October 2008, the Respondent vacated his office. The Respondent did not inform Kenyon that he was closing his office or moving. Kenyon hired another attorney, who filed his appearance on October 31, 2008.

Consequently, the Respondent failed to respond to, or inform his client of, discovery requests, motions to compel, motions to admit facts, and a motion for default judgment directed against his client. He also failed to appear at scheduled hearings on three occasions and failed to inform his client of court orders. Further, the Respondent failed to respond to telephone messages from his client.

An attorney has a duty to handle client matters expeditiously and without unreasonable delay. The Supreme Court has pointed out that "unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness," and that "dilatory practices bring the administration of justice into disrepute." In re Smith, 168 Ill. 2d 269, 283-84, 659 N.E.2d 896, 902-03 (1995) It is clear that the Respondent did not act expeditiously in handling matters for his client Jeffrey Kenyon, but rather caused needless and unreasonable delay by failing to respond to discovery requests, motions to compel, motions to admit facts, and a motion

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for default judgment directed against his client. Also, he failed to appear at scheduled hearings on three occasions and failed to have his client comply with court orders.

The Supreme Court has also stated that:

The first part of Rule 1.4(a) imposes an affirmative duty on lawyers to take the necessary steps to keep clients informed about their cases so that the client can make intelligent choices as to the direction of the litigation. This duty to inform falls upon the lawyer, not the client. In addition, the second part of Rule 1.4(a) imposes a duty upon counsel to respond to client questions and demands for information by responding ‘promptly' to these questions and demands. In re Smith, 168 Ill. 2d at 282, 659 N.E.2d at 902.

In this case, the Respondent failed to inform Jeffrey Kenyon of discovery requests, motions to compel, motions to admit facts, a motion for default judgment, scheduled hearings, and orders of the court. Additionally, the Respondent failed to respond to telephone messages from Jeffrey Kenyon. Clearly, the Respondent did not take reasonable or necessary steps to communicate with his client, keep him informed of the status of his case, or promptly respond to his messages.

An attorney's misconduct is prejudicial to the administration of justice if it has an adverse impact on a judicial proceeding. See In re Stormant, 203 Ill. 2d 378, 399, 786 N.E. 963, 974 (2002); In re Gerstein, 99 SH 1, M.R. 18377 (November 26, 2002) (Review Board Report at 4-5); In re Odom, 01 CH 69, M.R. 19772 (May 19, 2005) (Review Board Report at 9). The Respondent's misconduct was clearly prejudicial to the administration of justice because it needlessly delayed the completion his client's case in circuit court, caused additional motions to be filed and hearings to be held, and caused inconvenience and work for opposing counsel and the court.

Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in Count I: (a) failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct; (b) failed to keep a client reasonably informed about the

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status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a); (c) failed to make reasonable efforts to expedite litigation consistent with the interests of his client, in violation of Rule 3.2; (d) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (e) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation Supreme Court Rule 770.

Count II

In regard to Count II, we find the following:

In September 2005, the Respondent agreed to represent Frank Lipousky in the case of JPBM Enterprises v. Frank Lipousky, Vermilion County, No. 05 CH 216. About a month later, in October 2005, the Respondent agreed to represent Frank Lipousky in another case between the same parties, JPBM Enterprises v. Frank Lipousky, Vermilion County, No. 05 CH 251. Lipousky agreed to pay the Respondent $180 an hour to represent him in the cases. In March 2007, the court consolidated the two cases under one case number, No. 05 CH 216.

On September 10, 2007, the court granted JPBM's motion for summary judgment in the consolidated case. The Respondent knew of the court's ruling, but did not inform Lipousky of it. On November 26, 2007, the Respondent filed a motion for rehearing and a motion to reconsider the granting of the summary judgment. On April 16, 2008, the court denied the Respondent's motions.

On May 19, 2008, the Respondent filed a notice of appeal from the Circuit Court's ruling in the Consolidated Case, No. 05 CH 216. The Appellate Court docketed the appeal as JPBM Enterprises v. Lipousky, No. 4-08-0373. The Appellate Court ordered the appellant, Lipousky, to file the record on appeal by July 21, 2008. The Respondent did not file the record on appeal by

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the foregoing date. On July 28, 2008, the Appellate Court issued a rule to show cause why Lipousky's appeal should not be dismissed for the failure to file the record on appeal. The Respondent received the rule to show cause order on about July 30, 2008, but did not inform Lipousky of it and did not respond to it. On August 29, 2008, the Appellate Court dismissed the appeal. The Respondent did not inform Lipousky that the appeal was dismissed.

On August 4, 2008, the attorney for JPBM Enterprises filed in the Circuit Court, Case No. 05 CH 216, a petition for a rule to show cause why Lipousky should not be held in contempt of court for failing to comply with the court's summary judgment order. The Respondent received the petition on about August 5, 2008, but did not inform Lipousky of it.

Between September 10, 2007, and August 27, 2008. Lipousky telephoned the Respondent numerous times to inquire about the progress of his case. Each time they spoke, the Respondent told Lipousky that the case was "covered" and was being "taken care of." The foregoing statements by the Respondent were false, and he made them with the intent to induce Lipousky to believe the Respondent was handling the consolidated case appropriately. Lipousky hired new counsel to represent him on about August 28, 2008.

As discussed in Count I, an attorney has an affirmative duty to handle client matters expeditiously and without unreasonable delay. It is clear that the Respondent did not act expeditiously or without unreasonable delay in handling the appeal of his client, Frank Lipousky, in that he failed to file the record on appeal. The Appellate Court ordered the Respondent to file the record on appeal as counsel for the appellant, and he was required to do so by Supreme Court Rule 326. The Respondent also failed to respond to an order to show cause why Lipousky's appeal should be dismissed. Because of the Respondent's failure to file the record on appeal and failure to respond to the rule to show cause, the appeal of his client was dismissed without a

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ruling on the merits of the case. Also as a result of the Respondent's inaction, the Appellate Court issued orders, which would have been unnecessary if the Respondent had filed the record on appeal in a timely manner.

Also, as discussed in Count I, an attorney has the affirmative duty to keep clients informed about their cases. In this case, the Respondent failed to inform Lipousky of court orders, including the order of the Appellate Court dismissing Lipousky's appeal.

Furthermore, the Respondent intentionally sought to mislead Lipousky into believing that his consolidated case, both in the Circuit Court and in the Appellate Court, was being handled appropriately and progressing in a satisfactory manner. By mid-September 2007, the Respondent knew that the Circuit Court had granted a summary judgment against Lipousky. By mid-April 2008, the Respondent knew the Circuit Court had denied the Respondent's motion to vacate the summary judgment. By July 21, 2008, the Respondent knew he had not filed the record on appeal in the Appellate Court as he had been ordered to do. By July 30, 2008, the Respondent knew the Appellate Court had ordered him to show cause why Lipousky's appeal should not be dismissed. By early August 2008, the Respondent knew he had not responded to the rule to show cause. By late August 2008, the Respondent knew the Appellate Court had dismissed Lipousky's appeal. Despite the foregoing knowledge, the Respondent assured Lipousky, on numerous occasions between September 12, 2007, and August 27, 2008, that his case was being "covered" and "taken care of." Clearly, this was a knowingly false and misleading representation of the actual status of Lipousky's case. Consequently, the Respondent's statements were "blatant misstatements which created a false sense of security in those who heard them, and they were inaccurate representations of what the respondent had actually done." In re Levin, 101 Ill. 2d

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535, 540, 463 N.E.2d 715, 717(1984). See also In re Ring, 141 Ill. 2d 128, 143, 565 N.E.2d 983, 988-89 (1991).

Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in Count II: (a) failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct; (b) failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a); (c) failed to make reasonable efforts to expedite litigation consistent with the interests of his client, in violation of Rule 3.2; (d) engaged in conduct involving fraud, dishonesty, deceit or misrepresentation in violation of Rule 8.4(a)(4); (e) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (f) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation Supreme Court Rule 770.

Count III

In regard to Count III, we find the following:

On August 27, 2008, Circuit Judge Arnold F. Blockman appointed the Respondent guardian ad litem in the case of In re Adoption of Zheng, Champaign County, No. 08 AD 72. On the same date, the judge scheduled a final hearing in the case for October 22, 2008. The Respondent received both the appointment order and notice of the hearing on the about August 28, 2008.

The Respondent did not request that the order appointing him be vacated, did not file a motion to withdraw as guardian ad litem, and did not request a continuance. The attorney for the

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adoptive parents made several unsuccessful attempts to contact the Respondent. As of August 27, 2008, the telephone in the Respondent's office was disconnected.

The Respondent failed to appear at the hearing on October 22, 2008, without contacting the court.

On December 22, 2005, Associate Judge Brian L. McPheters appointed the Respondent guardian ad litem for a minor in the case of In re Brown v. Lilley, Champaign County, No. 05 P 336. On October 24, 2008, the judge scheduled a final hearing in the case for November 12, 2008. The Respondent received a notice of the hearing.

The Respondent failed to appear at the hearing on November 12, 2008. He did not request a continuance or offer any explanation to the court for his failure to appear.

Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in Count III: (a) failed to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct; (b) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (c) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation Supreme Court Rule 770.

Count IV

In regard to Count IV, we find the following:

In September and October 2008, the Administrator sent two letters to the Respondent, requesting him to respond to two disciplinary investigations, Nos. 08-SI-4856 and 08-SI-4864. The letters were not returned to the ARDC by the United States Postal Service. The Respondent did not respond to either letter.

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In November 2008, the Administrator sent three letters to the Respondent, requesting him to respond to three disciplinary investigations, Nos. 08-SI-4972, 08-SI-5102, and 08-SI-5208. The letters were not returned to the ARDC by the United States Postal Service. The Respondent did not respond to any of the letters.

In October and November 2008, ARDC staff members left telephone and e-mail messages for the Respondent at his home and office. An ARDC staff member made several attempts to contact the Respondent based upon information provided by the Respondent's ex-wife. The efforts were unsuccessful, and the ARDC staff was unable to ascertain the Respondent's new address.

The Supreme Court has made it clear that an attorney "has an obligation to cooperate with this court and its agency, the Attorney Registration and Disciplinary Commission, in the performance of its duty to police the legal profession in this State." In re Zisook, 88 Ill. 2d 321, 331, 430 N.E.2d 1037, 1041 (1982). The Court has also stated "[w]e never have and will not now encourage indifference to, or inaction regarding, charges of professional misconduct." In re Bell, 147 Ill. 2d 15, 36, 588 N.E.2d 1093, 1102 (1992). The Respondent failed to cooperate with and demonstrated a complete indifference to the ARDC by failing to respond to letters from the ARDC pertaining to the five disciplinary matters

Illinois Supreme Court Rule 756(c) requires every attorney on the master roll to notify the Administrator of any change of address within 30 days of the change. Clearly, the Respondent moved from his registered office address and from his registered home address without notifying the Administrator.

Finally, by failing to notify the Administrator of his current address, by failing to respond to communications from the Administrator, and by failing to respond to telephone and e-mail

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messages from ARDC staff members, the Respondent caused the disciplinary investigations to be needlessly delayed and caused the Administrator to endure additional inconvenience and work. Thus, the Respondent's misconduct was prejudicial to the administration of justice.

Based upon the above, we find it clearly and convincingly established that the Respondent committed the following misconduct charged in Count IV: (a) failed to respond to a lawful demand for information from the disciplinary authority, in violation of Rule 8.1(a)(2) of the Illinois Rules of Professional Conduct; (b) engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5); and (c) engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation Supreme Court Rule 770.

RECOMMENDATION

The purpose of the attorney disciplinary system is not to punish the attorney for his or her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961, 981 (2006). In determining the appropriate sanction, we must consider the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194, 1200 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028, 1034 (2000); Gorecki, 208 Ill. 2d at 361, 802 N.E.2d at 1200. Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re

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Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126, 1135 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473, 479 (1994).

In this case, the Administrator requested a sanction of suspension from the practice of law for two years and until further order of the Court.

The Respondent engaged in serious misconduct. The Supreme Court has stated that the "neglect of a legal matter is in itself sufficient ground for suspension" (In re Houdek, 113 Ill. 2d 323, 327, 497 N.E.2d 1169, 1170 (1986)), and that a "pattern of neglect weighs heavily in favor of a period of suspension" (In re Samuels, 126 Ill. 2d 509, 531m 535 N.E.2d808, 817 (1989)). Additionally, the neglect of a client matter is aggravated when the attorney makes misrepresentations to or displays a lack of candor with a client. In re Ring, 141 Ill. 2d 128, 143, 565 N.E.2d 983, 988-89 (1991); In re Fox, 122 Ill. 2d 402, 410, 522 N.E.2d 1229, 1233 (1988). In this case, the Respondent engaged in a pattern of misconduct by neglecting four separate matters (Counts I-III). He also failed to keep his clients informed about the status of their cases (Counts I and II), and engaged in dishonesty by falsely telling his client Frank Lipousky that his case was "being taken care of," when the Respondent knew he had not taken care of it properly (Count II).

The misconduct of the Respondent also included his failure to respond to letters and various telephone and e-mail requests from the Administrator in regard to five disciplinary investigations (Count IV). The failure of an attorney to cooperate with the Administrator in a disciplinary investigation or proceeding demonstrates a "want of professional responsibility" (In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498, 500 (1976); In re Pass, 105 Ill. 2d 366, 371, 475 N.E.2d 525, 527 (1985)); "tends to defeat the administration of justice and to bring the courts and the legal profession into disrepute;" (In re Johnson, 133 Ill. 2d 516, 534, 552 N.E.2d 703,

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711 (1990)); and "indicates that substantial discipline is warranted" (Samuels, 126 Ill. 2d at 531, 535 N.E.2d at 817 (1989); In re Carlon, 08 SH 27, M.R. 22681 (November 18, 2008) (Hearing Bd. at 11)).

In mitigation, the Respondent has been licensed to practice law since 1997 and has not been previously disciplined.

In aggravation, we first consider that the Respondent failed to participate in these disciplinary proceedings. He did not file an answer or otherwise plead to the Disciplinary Complaint; he affirmatively acted to avoid being served with the Disciplinary Complaint; he failed to participate in any pre-hearing proceeding or discovery; and he failed to appear at the hearing. It is well established that an attorney's failure to participate in his or her disciplinary proceedings is a substantial aggravating factor that weighs heavily against the attorney. See In re Fitzgibbons, 07 CH 25, M.R. 22114 (January 23, 2008) (Hearing Bd. at 13); In re Kuknyo, 01 SH 49, M.R. 17926 (March 22, 2002) (Hearing Bd. at 16-17); In re Lee, 97 CH 107, M.R. 15436 (February 1, 1999) (Hearing Bd. at 13-14).

Also in aggravation, the Respondent's misconduct caused harm to his clients. Jeffrey Kenyon (Count I) paid the Respondent a retainer of $750, and the Respondent then neglected Kenyon's case, causing a default judgment to be entered against his client. Kenyon then found it necessary to hire another attorney in the matter. The Respondent has not refunded any of the $750. In regard to Frank Lipousky (Count II), the Respondent's neglect caused Lipousky's civil appeal to be dismissed without a decision on the merits. Lipousky also found it necessary to hire another attorney. The Respondent's misconduct was clearly aggravated by his causing needless delay in the foregoing cases; causing a default judgment and an order of dismissal of the appeal, respectively, to be entered against his clients; and by causing his clients to go to the "expense

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and inconvenience" of hiring other attorneys. See In re Samuels, 126 Ill. 2d at 529, 535 N.E.2d at 816; In re Demuth, 126 Ill. 2d 1, 13, 533 N.E.2d 867, 872 (1988).

Although not charged as misconduct, the testimony of Jeffrey Kenyon showed that the Respondent told Kenyon "multiple times" that the Respondent "had taken care of" Kenyon's case and not to "worry about it." The Respondent clearly engaged in dishonesty by attempting to deceive Kenyon in believing his case was being handled appropriately when, in fact, the Respondent knew he had not responded to motions by the opposing party, including a motion for default judgment that was granted because the Respondent failed to appear at a scheduled hearing. In In re Storment, 203 Ill. 2d 378, 400, 786 N.E.2d 963, 975 (2002), the Court stated "we have considered uncharged misconduct in aggravation when it was similar to the current charges and established by evidence in the record." The Respondent's false statements to Mr. Kenyon were almost identical to the false statements he made to Mr. Lipousky, which were charged as misconduct in Count II and proved.

Finally in aggravation, the Respondent did not register with the ARDC for the year 2009, which he was required to do by Supreme Court Rule 756(a), and he abandoned his law office and moved without notifying the Administrator of his new address, as required by Supreme Court Rule 756(c). See In re Puchala, 04 CH 17, M.R. 19823 (January 14, 2005) (Hearing Bd. at 9-10); Fitzgibbons, 07 CH 25 (Hearing Bd. at 11-12).

While recognizing that each disciplinary case is unique, we found the following cases instructive as to the appropriate sanction in this matter.

In In re Houdek, 113 Ill. 2d 323, 497 N.E.2d 1169 (1986); the attorney was retained to handle a real estate matter, and received $200 in fees and $45 for costs. He did not deposit the $45 into a trust account. He neglected the cases and he failed to expend the $45 for costs. He

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failed to file the documents necessary for his client to assume the mortgage and to register title, and then made misrepresentations to the client about the documents being filed. Additionally, the attorney fabricated evidence, a check in the amount of $45, for the purpose of deceiving the ARDC, and he testified falsely that he sent the check to his client. The Supreme Court stated that the attorney's "failure to date to make restitution . . . and the lack of any evidence that he is willing or able to meet professional standards of conduct in the future warrant suspension until further order of the court." The attorney was suspended for 24 months and until further order of the Court. Houdek, 113 Ill. 2d at 325-27, 497 N.E.2d at 1169-70.

In In re Lee, 97 CH 107, M.R. 15430 (February 1, 1999), the attorney neglected the civil matters of two clients; made false statements to the clients about the status of their cases; failed to cooperate with the ARDC in the disciplinary investigations of the foregoing two matters; and continued to practice law after his name had been removed from the Master Roll of Attorneys for his failure to register and pay the registration fee for one year. (Hearing Bd. at 4-7). The attorney had no prior misconduct. In aggravation, he failed to participate in his disciplinary proceedings. The Hearing Board stated that the "non-cooperation in the disciplinary process demonstrates that the attorney is unwilling or unable to meet professional standards of conduct and has little regard for the privilege of practicing law" and the "lack of participation is offensive to the dignity of the profession and the inherent power of the Illinois Supreme Court to govern and police the profession of law within the state's borders." (Hearing Bd. at 12-13). The Hearing Board also stated that a suspension until further order of Court was "warranted because Respondent has demonstrated an inability to adhere to normal professional standards." (Hearing Bd. at 14). The Hearing Board recommended and the Supreme Court imposed a suspension for three years and until further order of the Court.

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In Fitzgibbons, 07 CH 25, the attorney neglected the civil cases of four clients; failed to communicate with or keep his clients informed; and failed to cooperate in a disciplinary investigation by the ARDC. (Hearing Bd. at 3-8). In mitigation, the attorney had no prior in misconduct. In aggravation, the attorney's name had been removed from the master roll for his failure to pay the registration fee for the year in which the hearing was held. Also, the attorney did not participate in his disciplinary proceedings. There was also harm to his clients: two clients lost their right to pursue claims; and one client "had to hire another attorney to complete her cases and obtain a recovery." Finally, the misconduct was not an "isolated incident," but rather a "pattern of misdeeds." (Hearing Bd. at 11-12). The Hearing Board pointed out that it "did not have the opportunity to observe Respondent and hear any explanation for his misconduct" and "we do not know why he abandoned his clients and, from all indications, deserted his practice." Consequently, "prior to re-entering the practice, he should be required to explain his conduct and prove his reformation and commitment to the legal profession in a reinstatement proceeding." (Hearing Bd. at 13). The Hearing Board recommended and the Supreme Court imposed a suspension for three years and until further order of the Court.

In In re Hultquist, 01 SH 77, M.R. 18297 (September 20, 2002), the attorney neglected a criminal case and failed to refund an unearned fee of $1,000 and costs of $250 he had received (Count I); he failed to refund costs of $2,500 to another client (Count II); and failed to cooperate with the ARDC in five investigations (Count II). He then failed to answer the disciplinary complaint or otherwise participate in his disciplinary proceedings. (Hearing Bd. at 12-13) The Hearing Board stated that the failure to cooperate with the ARDC or to participate in a disciplinary proceeding "is serious misconduct or aggravation." Hultquist, 01 SH 77 (Hearing Bd. at 12). The Hearing Board recommended and the Supreme Court imposed a suspension of

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three years and until further order of the Court, with reinstatement conditioned upon the attorney making restitution of $1,250 to one client and $2,500 to another client, plus 9% interest compounded form the date of the Court's order.

In In re Jaffe, 00 CH 17, M.R. 17654 (November 28, 2001), the attorney neglected two civil matters, failed to communicate with his clients, and failed to return unearned fees. In one case he filed a complaint, but did not serve the defendant or take any further action in the matter, and falsely told his client that the case "was proceeding." The lawsuit was ultimately dismissed for want of prosecution. In the other case, the attorney failed to file a personal injury suit and falsely told his client that he had communicated with the defendant. Additionally, the attorney made "racially and sexually demeaning comments to" a female correction's officer in the presence of others. Finally, the attorney failed to comply with ARDC requests for information and failed to file an answer or otherwise participate in his disciplinary proceedings. (Hearing Bd. at 3-8). The majority of the Hearing Panel recommended and the Supreme Court imposed a suspension for 18 months and until further order of the Court.

Finally, in In re Boldizsar, 00 CH 42, M.R. 17555 (September 20, 2001), the attorney neglected a foreclosure matter (Count I) and a probate matter (Count II). He failed to keep his clients in both matters informed of the status the cases. He also made a false statement to a client (Count III). Finally, the attorney failed to cooperate with the Administrator in two disciplinary investigations (Count IV). (Hearing Bd. at 2-4). In mitigation, the attorney had no prior discipline. In aggravation, the misconduct caused harm in the probate matter. The executor had to hire another attorney, and the passage of time due to the attorney's inaction contributed to a lower sale price for real property sold by the probate estate. Further in aggravation, the attorney failed to file an answer or otherwise participate in his disciplinary proceedings. (Hearing Bd. at

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5). The Hearing Board stated the following as to the appropriateness of a suspension until further order of the Court:

That condition [until further order of the Court] is appropriate where the attorney has demonstrated a disregard for disciplinary proceedings and is unwilling or unable to meet professional standards of conduct.

***

[We] view Respondent's absence in the present case as a serious obstacle to any future resumption of practice. We have had no opportunity to observe Respondent and know nothing of his commitment to the legal profession. In such a situation we would be shirking our responsibility to the public if we assumed that, merely by sitting out for the prescribed period of suspension, Respondent would be able to reenter the practice of law fully rehabilitated and ready to fulfill his professional obligations. We can only be assured of Respondent's reformation and commitment if those qualities are demonstrated in a reinstatement proceeding." (Hearing Bd. at 8-9).

The Hearing Board recommended and the Supreme Court imposed a suspension for eighteen months and until further order of the Court.

Because of the Respondent's failure to appear at the hearing in this matter, or otherwise participate in his disciplinary proceedings, we could not determine whether his misconduct was related to mental, emotional, or addiction problems, or to other health or personal problems. Consequently, we have no basis for concluding that the Respondent would be able or willing to practice law in an ethical manner following a fixed period of suspension. We believe that before the Respondent is allowed to practice law again, he should be required to explain his misconduct; prove that he has no mental, emotional, addiction, or other personal problem that would adversely affect his ability to practice law; and demonstrate his willingness to comply with ethical requirements. See Fitzgibbons, 07 CH 25 (Hearing Bd. at 13); Bodizsar, 00 CH 42 (Hearing Bd. at 8-9); Carlon, 08 SH 27 (Hearing Bd. at 13).

Based upon the misconduct and overall circumstances in this case, including the Respondent's refusal to participate in any way in his disciplinary proceedings, the cases

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discussed above, and the purpose of a disciplinary sanction, we conclude that a suspension for two years and until further order of the Court is appropriate in this matter. We believe that, as in the cases discussed above, a suspension until further order of the Court is necessary to adequately protect the public, the legal profession, and the administration of justice. See In re Pass, 105 Ill. 2d 366, 371, 475 N.E.2d 525, 527 (1985); Houdek, 113 Ill. 2d at 327, 497 N.E.2d at 1170.

Finally, we believe that restitution is appropriate in this case because there was an improper financial benefit to the Respondent and a financial loss to his client Jeffrey Kenyon. The Respondent received a fee in the amount of $750 from Mr. Kenyon, neglected Mr. Kenyon's case, did not earn that fee, and did not make any refund. Thus, the Respondent should be required to pay restitution of $750, plus statutory interest at the rate of 9%, to Mr. Kenyon. See Hultquist, 01 SH 77; Applegate, 05 SH 40, M.R. 20961 (September 20, 2006).

Therefore, we recommend that the Respondent be suspended from the practice of law for a period of two (2) years and until further order of the Court, with his reinstatement conditional upon the Respondent making restitution in the amount of $750.00 to Jeffrey Kenyon, plus interest at the rate of 9 percent per annum, compounded from the date of the Supreme Court's order imposing discipline in this matter.

Date Entered: October 16, 2009

Leo H. Konzen, Chair, with Panel Members Claire A. Manning and Pamela Hammond-McDavid, concurring