BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2010PR00010
JOINT STIPULATION AND RECOMMENDATION FOR
A REPRIMAND BY THE HEARING BOARD
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, and Mervin Lee Wolfe, Respondent, by and with the advice of his attorney, Frederick E. Roth, jointly stipulate that Respondent violated Rules 1.9(a) and 8.1(a)(2) of the Illinois Rules of Professional Conduct (1990) as set forth in the Administrator's complaint and, as discipline, recommend that he be administered a reprimand by the Hearing Board, pursuant to Supreme Court Rule 770(h) and Commission Rule 282. In support of that recommendation, the Administrator and Respondent stipulate as follows:
Pleadings and Procedural Background
1. On February 19, 2010, the Administrator filed a four-count complaint alleging that Respondent engaged in misconduct that included failing to cooperate with the Administrator's investigations of Respondent's alleged misconduct. After completing discovery, the Administrator voluntarily dismissed two of the counts that had been contained in the original complaint. The matter at issue in one of the remaining counts involved Respondent's representation of Aaron Eggers in 2007, in a dissolution of marriage case, after he had previously
advised Egger's former spouse, Tina Swim, on the case, in 2002. After Swim filed a motion to disqualify Respondent, he withdrew from the dissolution of marriage case, but not immediately, and cited reasons other than the alleged conflict. The other remaining count involved Respondent's lack of cooperation in connection with a number of investigations being conducted by the Administrator. Respondent did not file a written response in connection with the Administrator's investigation of the Swim matter, described above, and refused to attend several sworn statements, without good cause, all of which had been scheduled with the agreement of his counsel.
2. The Administrator charged that Respondent's actions constituted the following misconduct: representing another person in the same matter as a former client without the former client's consent, in violation of Rule 1.9(a) of the Illinois Rules of Professional Conduct (1990); failure to respond to lawful demands for information requested by the Administrator, in violation of Rule 8.1(a)(2) of the Illinois Rules of Professional Conduct (1990); and conduct which tends to defeat the administration of justice or to bring the courts or legal profession into disrepute, in violation of Supreme Court Rule 770.
3. On March 22, 2010, Respondent filed an answer in which he admitted some of the factual allegations, but denied the charges of misconduct.
Stipulated Findings of Fact and Misconduct
4. The Administrator and Respondent jointly stipulate that the evidence would establish, and the Hearing Board may find, that in 2007, Respondent entered his appearance on behalf of Aaron Eggers in a dissolution of marriage case, after having previously advised Egger's former spouse, Tina Swim, in 2002, on issues in the same case while Swim was visiting Respondent's then secretary and spouse, Julie Wolfe. Respondent did not use any confidential
information he may have learned from Swim against her during his representation of Eggers. On October 30, 2007, Swim filed a motion to disqualify Respondent. The motion was never heard, and on July 29, 2008, Respondent voluntarily withdrew from the dissolution of marriage case, cited reasons other than the asserted conflict, including that his father was terminally ill and dying. Respondent's actions violated Rule 1.9(a) and tended to defeat the administration of justice, in violation of Supreme Court Rule 770.
5. In 2008 and 2009, the Administrator was conducting four investigations into allegations involving Respondent. Respondent did not respond in any way to the Administrator's requests for information regarding his contacts with Tina Swim, and Respondent had no good cause for failing to respond. In all four of the matters, Respondent agreed on several occasions to appear for a sworn statement, then cancelled each appearance. For some of the non-appearances, Respondent felt that he could not appear in front of the assigned Administrator's counsel because he had sued her in federal court, an order staying discovery had been entered in the federal case, and he felt the assigned counsel had a conflict of interest in investigating Respondent. While the Administrator does not concede there was such a conflict during the investigation, the Administrator notes that once the instant hearing case was filed, Respondent cooperated by, among other things, appearing for a deposition and complying with the Administrator's discovery requests.
Factors in Mitigation and Aggravation
6. The Administrator and Respondent jointly stipulate that the evidence would establish, and the Hearing Board may find, the following mitigating factors: (1) Respondent has no prior disciplinary history; (2) at the time he agreed to represent Mr. Eggers, Respondent did not understand or believe that he had earlier formed an attorney-client relationship with Swim,
based on his contact with Swim and the advice he had provided, because he had not entered his appearance as her counsel in her case and formalized his representation; and (3) Respondent has acknowledged his misconduct and has been cooperative with the Administrator once the case was filed before the Hearing Board. In aggravation, Respondent's failure to cooperate in the investigations caused the Administrator to needlessly spend time arranging sworn statements that Respondent did not attend, and caused the Administrator to file formal charges of misconduct that would not have been made had the Respondent explained his conduct during the investigation.
Recommended Discipline and Legal Discussion
7. The Administrator and Respondent agree and jointly recommend that a reprimand be administered by the Hearing Board pursuant to Supreme Court Rule 770(h) and Commission Rule 282, as the appropriate discipline in this matter. That recommendation is supported by the following precedent:
8. In In re Magro, 02 CH 58 (Apr. 3, 2003), an attorney was reprimanded for representing both a mother and son in the sale of property from the mother to the son, without advising either party of his conflict or his representation of one could be materially limited by his representation of the other.
9. In In re Cameron, M.R. 10002, 94 CH 224 (May 19, 1994), an attorney was censured for representing both parties in a dissolution of marriage proceeding. The attorney also committed two counts of misdemeanor battery, a factor not present in the instant case.
10. In In re Nathe, M.R. 22128, 07 CH 34 (March 17, 2008), the attorney was censured for representing a client charged with battery after previously meeting with the victim
of that battery and discussing the incident that gave rise to criminal charges against his client. Unlike in this matter, Nathe had previous discipline for a conflict.
11. In In re Svehla, 97 CH 60 (December 4, 1997), the attorney was reprimanded by the Hearing Board for failing to keep his client apprised of the status of a matter, and for failing to cooperate with the Administrator's investigation into the client's charges of misconduct. The attorney was found to have violated Rules of Professional Conduct 1.4(a) and Rule 1.8(a).
12. A reprimand is the appropriate sanction for Respondent's conduct. In the present case, Respondent's misconduct is similar to the conduct of Cameron and Nathe, who were both censured. However, the respondent in Cameron had committed other misconduct, and the respondent in Nathe had prior discipline for similar misconduct. Magro, who had also engaged in a conflict, was reprimanded. Svehla was reprimanded for engaging in some misconduct, a failure to communicate with a client, as well as not cooperating with the Administrator's investigation. Like this Respondent, Svehla did cooperate once the matter was before the Hearing Board.
WHEREFORE, the Administrator and Respondent jointly recommend that the Hearing Board issue a reprimand, pursuant to Supreme Court Rule 770(h) and Commission Rule 282.
Jerome Larkin, Administrator
By: Denise Church
Mervin Lee Wolfe, Respondent
By: Frederick E. Roth
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
Commission No. 2010PR00010
Based upon the agreement and stipulations of the parties, the panel of the Hearing Board hereby makes the following findings, and reprimands and admonishes you, Mervin Lee Wolfe, as follows:
1. In 2002, you gave advice to Tina Swim regarding her dissolution of marriage case with Aaron Eggers. While you did not enter your appearance in the case, Swim disclosed information to you about the case which she reasonably viewed as confidential. In 2007, you entered your appearance in the case as counsel for Aaron Eggers, Swim's opposing party. In so doing, you engaged in a conflict of interest, in violation of Rule 1.9(a), and you engaged 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.
2. You also failed to fully cooperate in the Administrator's investigation in this matter, including a failure to respond in any manner to the Administrator's request for information about your dealings with Swim. While you apparently felt that you had some disagreement with the Administrator's counsel, you and your counsel continued to agree to
attend sworn statements, which you did not attend. Also, the panel notes that under the rules of the Commission and the Supreme Court, it was your duty to respond to those requests.
3. In determining that a reprimand is an appropriate sanction, the panel has considered the following mitigating factors: (1) you have no prior disciplinary history; (2) you reportedly did not understand that you had entered an attorney-client relationship with Ms. Swim, since you never formally entered your appearance as her counsel in the case; (3) you would testify that you did not cooperate with the Administrator because you believed that his counsel, Denise Church, had a conflict with you because you had initiated litigation against her and another member of the Administrator's staff; and (5) you have acknowledged your misconduct and have recently been cooperative in this matter.
WHEREFORE, Mervin Lee Wolfe, you are hereby REPRIMANDED. You are admonished not to engage in misconduct in the future and to strictly comply with the Rules of Professional Conduct. You are further admonished that this disciplinary action is of public record and will be considered in the event of any future disciplinary proceedings relating to you.
DATE: July 20, 2011
|Paul C. Hendren, Chair
of the Hearing Panel
Julian C. Carey, Panel
Carolyn Berning, Panel