BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
No. 1876732 .
Commission No. 09 SH 17
FILED - April 30, 2009
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Gary S. Rapaport, pursuant to Supreme Court Rule 753(b), complains of Respondent, Henry Moss Meersman, who was licensed to practice law in Illinois on June 18, 1951, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:
Conversion of $30,656.73 and false representation
1. On May 14, 1997, Larry W. Hendrix ("Hendrix") executed a will in which he left his entire estate to Evelyn M. Hendrix ("Evelyn"), his former wife. The will provided that in the event that Evelyn predeceased him, his estate would go to the Rock Island Bank in trust for the benefit of his minor grandson, Donald W. Hendrix, II ("Donald"). Donald was then 14 years old and resided with his mother in Tacoma, Washington. The will directed that the trust would terminate upon Donald's 25th birthday and the corpus of the trust would be distributed to him at that time. In the will, Hendrix nominated Jessie McIntire ("McIntire"), a friend, as executor.
2. Prior to October 2, 1997, Evelyn died.
3. On October 2, 1997, Hendrix died. His principal assets at the time of his passing were a checking account balance in the approximate amount of $35,000.00, and an anticipated distribution from Evelyn's estate of approximately $24,000.00.
4. Attorney Frank R. Fuhr ("Fuhr") agreed to represent McIntire in the administration of the Hendrix estate. On October 14, 1997, they filed a "petition for probate of will and for letters testamentary" and related pleadings to initiate a probate proceeding. The matter was docketed as In re the Estate of Larry W. Hendrix, Deceased, No. 97 P 439, in the Circuit Court for Rock Island County, Illinois.
5. In August, 1999, Fuhr and McIntire prepared to close the estate and fund Hendrix's testamentary trust for Donald's benefit. After the collection of all receipts to the estate and the payment of all claims on the estate, Fuhr held $30,656.73 in his client trust account for distribution to the trustee.
6. In August, 1999, Rock Island Bank, then known as Mercantile Bank, declined appointment as trustee for the testamentary trust.
7. Respondent held the office of Public Administrator for Rock Island County, Illinois. Respondent's duties as Public Administrator included serving as the administrator for estates and trusts in the absence of a person or entity "having a prior right" to do so. 755 ILCS 5/13-3.1. In his capacity as Public Administrator, in September, 1999, he agreed to accept appointment as successor trustee for the Hendrix testamentary trust.
8. On September 9, 1999, Fuhr drew check number 8047 on his law firm trust account in the amount of $30,656.73, payable to "H. Moss Meersman, Trustee for Donald W. Hendrix, II." Fuhr mailed the check to Respondent.
9. On or about September 10, 1999, Respondent received Fuhr's check number 8047.
10. On September 10, 1999, in case no. 97 P 439, Fuhr filed pleadings to close the Hendrix estate including an executor's final account and report, a proposed order of discharge, and a proposed order approving the executor's final report and declaring the estate close.
11. Also on September 10, 1999, Respondent filed an acceptance of office as the successor trustee, a "receipt of distribution" indicating his receipt of the trust funds from Fuhr, and an appearance and consent to approval of the executor's final account and report.
12. On September 10, 1999, the court entered the proposed orders closing the estate and discharging the executor. Donald was then 16 years old and would not turn 25 until 2008.
13. Between September 10, 1999, and 2007, Respondent used all of the proceeds of Fuhr's check number 8047 for his own personal or business purposes. The purposes for which Respondent used the funds included, among other things, payment of his utility bills, insurance premiums, his automobile lease payments, and obligations related to "The Bread Box, Inc.," a bake shop that his wife, Bess K. Meersman, owned and operated in Moline, Illinois.
14. At no time did Respondent have authority from Donald or any person on Donald's behalf, or from any court, to use any of the assets of the Hendrix testamentary trust for his own purposes.
15. In 2007, Respondent changed his registration status with the Illinois Attorney Registration and Disciplinary Commission to retired, closed his law office, and moved to Lorton, Virginia.
16. At no time did Respondent petition for leave to resign as the successor trustee of the Hendrix testamentary trust.
17. At no time did Respondent inform Donald W. Hendrix, II, that he had retired from the practice of law and closed his office. At no time did he inform Donald of his current address or current telephone number, following his retirement.
18. On April 26, 2008, Donald became 25 years of age. Donald continued to reside in Tacoma, Washington.
19. Between April, 2008, and July, 2008, Donald attempted, without success, to contact Respondent to request the distribution of the assets of his grandfather's testamentary trust.
20. In August, 2008, attorney David W. Andich ("Andich") agreed to represent Donald in matters relating to his efforts to obtain information about, and a distribution from, the trust. On August 8, 2008, Andich sent a letter to Respondent at Respondent's last registered address in Moline, Illinois, requesting the prompt delivery of the trust assets.
21. On September 4, 2008, Respondent telephoned Andich from Lorton, Virginia, and said that he had received his letter. In their conversation, Respondent told Andich that he had lost all of the funds of the Hendrix testamentary trust in "a bad investment."
22. Respondent's statement to Andich that he had lost the Hendrix trust funds in an investment was false. He had used the funds for his own personal or business purposes, as set forth in paragraph 13, above.
23. Respondent knew that his statement to Andich that he had lost the Hendrix trust funds in an investment was false.
24. By reason of the conduct described above, Respondent has engaged in the following misconduct:
conversion of client funds;
breach of fiduciary duty to Donald W. Hendrix, II;
conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct;
conduct prejudicial of the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and
conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.
WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
|Gary S. Rapaport
Attorney Registration and
One North Old Capitol Plaza, Suite 333
Springfield, Illinois 62701
Telephone: (217) 522-6838