Filed April 27, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
OLUFEMI F. NICOL,
Commission No. 2010PR00016
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on January 10, 2011, before a panel consisting of Debra J. Braselton, Chair and John F. Early. Marita C. Sullivan appeared as Counsel for the Administrator. Respondent appeared pro se.
On March 8, 2010, the Administrator filed a two-count Complaint against Respondent pursuant to Supreme Court Rule 753(b). The Complaint alleged Respondent failed to repay student loans and failed to respond to the Administrator's request for information. On September 2, 2010, the Chair entered an order granting the Administrator's Motion to Deem the Allegations of the Complaint Admitted Pursuant to Commission Rule 236 ("Motion to Deem").
On November 8, 2010, Respondent filed a Motion to Vacate Order and for Leave to File Additional Appearance, Instanter, ("Motion to Vacate") in which he stated that the Chair's September 2, 2010 order granting the Administrator's Motion to Deem should be vacated because he did not receive notice of and was unaware of the Administrator's allegations against him. Respondent also filed an Answer to the Complaint on November 8, 2010, in which he admitted most of the factual allegations and denied all the allegations of misconduct. On
November 18, 2010, Respondent's Motion to Vacate was entered and continued by the Chair's order, but was not ruled on prior to the hearing in this matter. At the hearing Respondent's Answer was considered as part of the record and there was no objection by Counsel for the Administrator.
The Administrator presented the testimony of Glenda Poindexter, Paul Oliver and Respondent and Exhibits 1-26. The admitted allegations of the Complaint, the testimony of the witnesses and the Exhibits established the following facts.
In 1994, Respondent received his law degree from the University of Chicago Law School. On November 10, 1994, Respondent was licensed to practice law in Illinois.
In June 2005, Respondent began attending graduate business school at the University of Chicago. Respondent applied for and received education loans in the amount of $78,483 between June and December 2005, to assist him in payment of the costs of obtaining his graduate business degree. The loans were guaranteed by the Illinois Student Assistance Commission ("ISAC"), d/b/a as the Illinois Designated Account Purchase Program ("IDAPP"). Respondent received the funds on the following dates and in the following amounts:
|June 21, 2005||
|June 21, 2005||
|June 23, 2005||
|September 14, 2005||
|September 14, 2005||
|September 14, 2005||
|December 23, 2005||
|December 23, 2005||
|December 23, 2005||
|March 18, 2006||
|March 18, 2006||
Respondent signed two promissory notes, both dated June 6, 2005, to secure the loans. (Adm. Exs. 1, 2). In each note, Respondent promised to pay the lender all loan amounts disbursed under the terms of the promissory notes. (Adm. Exs. 1, 2).
When Respondent's loans for his graduate business degree became due Respondent did not pay his first monthly payment of $733.84 on October 1, 2006, and as of December 2006, Respondent had made no payments towards his loan obligation to ISAC. Beginning in December 2006 ISAC and IDAAP contacted Respondent by letter and eventually by e-mail and telephone asking Respondent to begin repaying his education loans to ISAC. (Adm. Exs. 4-10). On August 31, 2007, Respondent requested a one-time administrative forbearance by e-mail for the time period of December 1, 2006 to December 1, 2007, which ISAC granted. (Adm. Ex. 9 at 13-14, 24). Starting in January 2008, after Respondent's administrative forbearance period ended, ISAC and IDAAP continued to contact Respondent by letter, telephone and email regarding his outstanding loan debts to ISAC. (Adm. Exs. 4-10).
The Administrator received a request from Ezekiel Majek of ISAC/IDAPP, dated May 14, 2009, to investigate Respondent's failure to repay his education loans, and failure to respond to IDAPP's attempts to contact him regarding his outstanding balance. (Adm. Ex. 18). On June 16, 2009, Althea K. Welsh, Counsel for the Administrator, sent a letter to Respondent at 1900 South Halstead in Chicago IL, requesting that Respondent provide the Administrator with information and documents relating to Mr. Majek's charge and describe any efforts Respondent
made to cooperate with IDAPP in establishing a repayment schedule for his education loans. Ms. Welsh also asked Respondent to set forth his specific intentions with respect to future action to meet his loan obligations. (Adm. Ex. 19). Respondent never provided any response to the June 16, 2009 letter from Ms. Welsh.
On July 15, 2009, August 7, 2009, and September 4, 2009, Ms. Welsh sent letters to Respondent at 9137 S. Crandon Avenue in Chicago IL, again requesting that Respondent provide the Administrator with information and documents relating to Mr. Majek's charge and any efforts Respondent made to repay his education loans. (Adm. Exs. 20-22). Respondent did not provide any response to the Administrator's requests for information.
On October 22, 2009, the Administrator sent a subpoena duces tecum by certified mail to Respondent at 9137 S. Crandon Avenue in Chicago IL. (Adm. Ex. 23). The subpoena duces tecum commanded Respondent's appearance on November 13, 2009 at 1:00 p.m. at the Chicago offices of the Attorney Registration and Disciplinary Commission and the production of certain documents at that time. (Adm. Ex. 23). Respondent did not appear at the Commission's Chicago office on November 13, 2009, in compliance with the Administrator's subpoena duces tecum.
On July 30, 2010, Respondent wrote an email to ISAC stating that he had not worked in over a year and had no prospects of work because his license had been suspended for non payment of his student loans. (Adm. Ex. 9 at 44). Respondent also wrote an email to ISAC on July 30, 2010, stating that he had been in South America for a year. (Adm. Ex. 9 at 45).
At his deposition on December 3, 2010, Respondent testified that did not have an official residence because he stays with friends. Respondent testified that 725 George Avenue, Waukegan, IL is the address on his driver's license and that his mother resides there.
Respondent further testified that his first official address after leaving the Crandon address in early 2006 was 1900 South Halstead and that he lived there from the summer of 2007 to the summer of 2009. Respondent also testified that he resided at an address on Cortez from September 2009 to October 2009 and then he began residing at an address on Noble when he left the address on Cortez and lived there until January 2010. Respondent further testified he received mail at P.O. Box 626 "years ago," but that he does not currently go to that mail box and retrieve the mail that is sent to him there. (Adm. Ex. 26 at 3-6, 8-10, 17-18).
Respondent testified that he did not notify ISAC of his change of address when he moved from the address on Crandon. Respondent stated that because his billing statements were sent to that address he did not receive them. Respondent's wife continued to reside at Crandon, but his mail was not forwarded to him. (Adm. Ex. 26 at 8-11, 21).
Respondent updated his email address with ISAC in 2010. Prior to 2010, the e-mails sent to him by ISAC were going to an e-mail address that belonged to him, but they were going to the junk mail folder. Respondent admitted that he did have some e-mail correspondence with ISAC while he worked at DLA Piper when he requested a forbearance in 2007. Respondent further testified that he did not update ISAC or IDAPP with a current address, phone number or e-mail address from the time he left DLA Piper until June or July of 2010. (Adm. Ex. 26 at 15, 21-24).
Respondent testified that he did not receive the demands for information sent to him by the ARDC because he did not reside at or pick up his mail from the addresses the ARDC sent the letters to. Respondent testified that he was first notified about the ARDC allegations against him in July 2010 by when his friend saw them on a website and called him. Respondent did not know why he did not contact the ARDC as soon as he learned there was a matter pending against him. (Adm. Ex. 26 at 14, 17-20).
Respondent has not made any other payments on his education loans besides a tax refund that was taken for payment toward his loans and a payment that he voluntarily made in August or September 2010. (Adm. Ex. 26 at 27-28).
Glenda Poindexter has been the human resources manager for the Chicago and Minneapolis offices of DLA Piper for over five years. (Tr. 13-14). Respondent started working at DLA Piper on April 30, 2007, and was offered a starting salary of $190,000 per year. (Tr. 17-19; Adm. Exs. 12, 14). In 2008 Respondent's gross earnings from DLA Piper were $244,379.63, which included a bonus of $14,841.27 that Respondent received on February 1, 2008. (Tr. 20-21; Adm. Ex. 11). Respondent was terminated from DLA Piper on February 14, 2009, but received severance pay in the amount of $8,846.15 from DLA Piper on February 27, March 13, March 27, April 10, April 24 and May 8, 2009. (Tr. 21; Adm. Ex. 11).
Paul Oliver has worked for the ISAC for fifteen years and manages several default collection functions. (Tr. 25). The IDAAP is a part of the ISAC. (Tr. 26). In June 2005 Respondent applied for and received both an alternative loan to assist him in meeting the financial obligation of tuition outside of the Federal Family Education Loan Program allowance and a Federal Stafford Loan, which is part of the Federal Family Education Loan Program. (Tr. 30-31; Adm. Exs. 1-2). Respondent had an obligation from the promissory notes that he signed for the loans to inform the ISAC and IDAPP of any address changes. (Tr. 37).
Respondent made one payment of $250 on his alternative loan in August 2010. (Tr. 57-58). Respondent never made any voluntary payments on his federal loan, but there was a federal treasury offset of $921 in February 2010 where Respondent's tax refund was applied to his
federal loan. (Tr. 35-36m 58). The current outstanding balance on Respondent's alternative loan is $71,280.50. (Tr. 59). The current outstanding balance of Respondent's federal loan is $20,359.74. (Tr. 58).
ISAC sent Respondent letters regarding his student loans at an address on Crandon in Chicago, IL from December 27, 2006, to August 11, 2007. (Tr. 43; Adm. Ex. 7). ISAC sent Respondent letters regarding his student loans at P.O. Box 626 in Waukegan, IL from October 26, 2007 to August 8, 2009. (Tr. 43; Adm. Ex. 7). ISAC sent Respondent letters regarding his student loans at an address on George Avenue in Waukegan, IL from September 30, 2009 to January 3, 2011. (Tr. 44; Adm. Ex. 7). IDAPP sent Respondent letters regarding his student loans at 1900 South Halstead in Chicago IL from May through June 2009. (Tr. 56-57; Adm. Ex. 10 at 9-11).
ISAC personnel had phone contact with Respondent on October 26, 2007, during which the collector explained to Respondent the importance of making payments and Respondent gave his mailing address and requested a financial summary. (Tr. 40-41; Adm. Ex. 6 at 7). On October 26, 2007, ISAC sent a letter to Respondent from at P.O. Box 626, Waukegan, IL providing Respondent with that information. (Tr. 44-45; Adm. Ex. 7 at 10-11). ISAC sent an additional letter to Respondent at P.O. Box 626, Waukegan, IL on October 26, 2007, confirming the repayment agreement reached with Respondent in a recent phone conversation. (Tr. 45; Adm. Ex. 7 at 12).
ISAC personnel also had phone contact with Respondent on January 2, 2008, during which the collector agreed with Respondent that he would pay $104.08 starting January 25, 2008. (Tr. 42; Adm. Ex. 6 at 6). On January 2, 2008, a letter was sent to Respondent from ISAC
at P.O. Box 626, Waukegan, IL confirming the agreement that Respondent would begin repayment in the amount of $104.08 on January 25, 2008. (Tr. 46; Adm. Ex. 7 at 13).
On August 17, 2007, Respondent responded to an e-mail sent to him by IDAPP personnel and requested "payback info." (Tr. 51-52; Adm. Ex. 9 at 8). IDAPP personnel responded to Respondent's request in an e-mail dated August 21, 2007, and stated "we updated your new address." (Tr. 52; Adm. Ex. 9 at 8). On August 31, 2007, Respondent contacted IDAPP by e-mail and requested a "one-time Administrative Forbearance" in response to an e-mail he received from IDAPP personnel on August 31, 2007. (Tr. 53-54; Adm. Ex. 9 at 13-14).
ISAC and IDAPP have made a total of 12 phone calls to Respondent regarding his alternative loan and 23 phone calls to Respondent regarding his Federal Stafford Loan. Respondent has also been sent 19 emails regarding his alternative loan. ISAC and IDAPP have sent Respondent a total of eleven letters regarding his alternative loan and twenty-three letters regarding his Federal Stafford Loan. (Tr. 59-60; Adm. Exs. 4-10).
Evidence in Aggravation
In 1997 a lawsuit was filed against Respondent for his failure to repay student loans he borrowed in 1992. (Adm. Ex. 24).
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 (2006). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence but less than proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991). This standard of proof is one in which the risk of error is not
equally allocated; rather, it requires a high level of proof, both qualitatively and quantitatively, from the Administrator. Santosky v. Kramer, 455 U.S. 745, 764-66 (1982); In re Tepper, 96 CH 543, M.R. 14596 (1998) (Review Bd. Dec. at 12).
We conclude the Administrator proved by clear and convincing evidence that Respondent engaged in most of the misconduct alleged in Count I of the Complaint. Specifically, we conclude Respondent: 1) avoided in bad faith the repayment of an education loan guaranteed by the Illinois Student Assistance Commission or other governmental entity and 2) engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rules 8.4(a)(4) and 8.4(a)(8) of the Illinois Rules of Professional Conduct. We did not find the Administrator proved by clear and convincing evidence that Respondent engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5).
The uncontroverted evidence established that Respondent applied for and received education loans in the amount of $78,483 in 2005 to assist him in payment of the costs of obtaining his graduate business degree. It is also undisputed that Respondent's loans became due in October 2006, that he failed to make any payments at that time, that in August 2007 he asked for and received an administrative forbearance from December 2006 to December 2007, and that since his forbearance ended Respondent has only made one voluntary payment on the loans. The evidence further established that Respondent was employed at DLA Piper from April 2007 until February 2009 and that he received severance pay until May 2009. Respondent's starting annual salary at DLA Piper was $190,000 and was increased during the time he worked there. Respondent had the means to repay his loans while he was working at DLA Piper and
chose not to fulfill his obligation. Accordingly, we find the evidence clearly establishes that Respondent avoided the repayment of his student loans in bad faith in violation of Rule 8.4(a)(8).
Respondent's contention that he was unaware of his obligation to repay his student loans is contradicted by his contact with ISAC and IDAPP in 2007 and 2008. The evidence showed that Respondent updated his address with IDAPP personnel and requested an administrative forbearance in August 2007. Respondent also had phone contact with ISAC personnel in October 2007 and updated his address at that time. Respondent acknowledged in his deposition that he had previously received mail at the P.O. Box ISAC sent Respondent letters to from October 2007 to August 2008. Additionally, Respondent had phone contact with ISAC personnel in January 2008 after his administrative forbearance ended and he agreed to begin repaying his student loans at that time.
Accordingly, we do not find Respondent's claim in the affirmative defense to Count I in his Answer that ISAC and IDAPP did not have his correct contact information at the time his administrative forbearance ended credible. Additionally, Mr. Pierce's testimony established that Respondent was obligated by the promissory notes that he signed for his student loans to notify ISAC and IDAPP of any address changes. Therefore we conclude that even if it was credible, Respondent's affirmative defense is not a valid explanation for his failure to repay his student loans.
Respondent's attempts to avoid repayment of his student loans also show a lack of candor. Respondent had e-mail communications with ISAC personnel in July 2010 in which he stated that he could not work because his law license had been suspended for non payment of his student loans and that he had been in South America for a year. Respondent's license to practice law was not suspended and had never been suspended as of July 2010. Additionally, Respondent
provided a detailed account of where he resided from 2006 until January 2010 at his deposition and he did not refer to any time period that he lived in South America during the year prior to July 2010. Accordingly, we find Respondent was dishonest when he stated to ISAC personnel in July 2010 that his license to practice law had been suspended and that he had been living in South America the previous year in violation of Rule 8.4(a)(4).
Finally, there was no evidence presented that there were any lawsuits filed against Respondent for his failure to pay his student loans and therefore we do not find clear and convincing evidence that Respondent engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(a)(5).
We conclude the Administrator proved by clear and convincing evidence that Respondent engaged in all of the misconduct alleged in Count II of the Complaint. Specifically, we conclude Respondent: 1) failed to respond to a lawful demand for information from the Attorney Registration and Disciplinary Commission; 2) engaged in conduct that is prejudicial to the administration of justice; and 3) 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 Rules 8.1(a)(2), 8.4(a)(5) and Supreme Court Rule 770.
The evidence clearly established Respondent failed to respond to the ARDC's requests for information regarding its investigation into the charge that Respondent had not repaid his student loans and had not respond to IDAPP's attempts to contact him regarding his outstanding balance. Numerous letters and a subpoena were sent to Respondent at the address the ARDC has on file for him and Respondent did not take any action to comply with the ARDC's lawful demands for information. Respondent's failure to comply with the ARDC's investigation in
violated Rule 8.1(a)(2) and was prejudicial to and tended to defeat the administration of justice in violation of Rule 8.4(a)(5) and Supreme Court Rule 770.
Respondent's affirmative defense in his Answer to Count II states that he did not receive any of the correspondence from the ARDC because it was sent to addresses at which he did not reside or receive mail. We find Respondent's affirmative defense invalid and not credible. Respondent had an obligation to make sure the ARDC had his correct mailing address pursuant to Supreme Court Rule 756(c) which requires that each attorney notify the ARDC of any change of address within 30 days of such change. Respondent can not use his failure to comply with Supreme Court Rule 756(c) as a defense for his lack of response to the ARDC's requests for information from him. Additionally, Respondent testified at his deposition that he lived at 1900 South Halstead in the summer of 2009 and in June 2009 Counsel for the Administrator sent a letter to Respondent at 1900 South Halstead requesting information from him. Accordingly, we find Respondent received at least one letter from the ARDC informing him of his obligation to respond to its investigation of the charges against him.
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 Gorecki, 108 Ill. 2d 350, 802 N.E.2d 1154 (2003). See also, In re Howard, 188 Ill. 2d 423, 434, 721 N.E.2d 1126 (1999). The goal is not to punish the attorney, but to determine whether the attorney should be permitted to practice in the profession. In re Smith, 168 Ill. 2d. 269, 295, 659 N.E.2d 896 (1999). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 398, 583 N.E.2d 526 (1991).
In aggravation, this is not the first instance in which Respondent has failed to meet his obligation to repay an education loan. A lawsuit was filed against Respondent in 1997 for his failure to repay student loans he took out in 1992. Respondent should have had a heightened awareness of his responsibility to repay the student loans he borrowed in 2005, but his actions do not show an understanding of the importance of honoring his obligation to make payments. In mitigation, Respondent has not been previously disciplined. See In re Demuth, 126 Ill. 2d 1, 14, 533 N.E.2d 867 (1988).
Having considered the aggravating and mitigating factors we now must determine an appropriate sanction for Respondent's misconduct. The Administrator recommends and we agree that a six month suspension and until further order of court is appropriate to address Respondent's misconduct. Respondent did not make any recommendation for discipline. In determining an appropriate sanction for Respondent's misconduct we find the following cases instructive.
In In re Petrulis, 96 CH 546, M.R. 16556 (June 30, 2000) the attorney was suspended for three years and until he made restitution to two clients and the Illinois State Scholarship Commission. The attorney in Petrulis neglected six client matters; engaged in conduct involving fraud, dishonesty, deceit or misrepresentation as to one client; failed to reduce a contingent fee agreement to writing; failed to respond to requests for information from the ARDC and avoided in bad faith the repayment of a guaranteed student loan.
In In re Minor, 92 CH 435, M.R. 9527 (Mar. 30, 1994) the attorney was suspended for two years and until further order of court for neglecting two client matters, making misrepresentations to a client and failing to repay her student loan even though she had the
means to make the payments. The attorney in Minor also failed to participate in her disciplinary proceedings.
The attorneys' misconduct in Petrulis and Minor is more serious that Respondent's misconduct as Respondent is not charged with any misconduct involving any of his clients. Accordingly, Respondent's misconduct warrants a lesser period of suspension than Petrulis and Minor. We further conclude that a UFO is warranted in this case because Respondent should be required to demonstrate that he has made significant efforts to satisfy the debt due to ISAC before he is allowed to resume the practice of law.
Considering the relevant case law, the nature of the Respondent's misconduct, the evidence in aggravation and the evidence in mitigation, this Panel recommends Respondent be suspended from the practice of law for six months and until further order of court.
Date Entered: April 27, 2011
|Debra J. Braselton, Chair and John F. Early, Hearing Panel Member.|