Filed April 27, 2011
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
RONALD EVERETT SCOTT,
Commission No. 2010PR00096
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on January 28, 2011, at the Chicago offices of the Attorney Registration and Disciplinary Commission ("ARDC") before a Panel of the Hearing Board consisting of Michael C. Greenfield, Chair, Karen A. Caraher, and Steven J. Casey. Albert S. Krawczyk appeared on behalf of the Administrator. Respondent was present and was represented by Sharon L. Scott.
On July 22, 2010, the Administrator filed a one-count Complaint charging Respondent with engaging in the unauthorized practice of law by continuing to practice law after his name was removed from the Master Roll for failure to pay his registration fee. Respondent's Answer denied misconduct and some of the factual allegations of the Complaint.
On January 14, 2011, Respondent filed a Stipulation in which he admitted, from May 10, 2001 onward, he continuously held himself out as being a licensed attorney, authorized to practice law in Illinois, and continuously engaged in the practice of law in Illinois.
The Administrator presented testimony from Respondent, Thomas W. Peters, and Robert D. Spickerman. Administrator's Exhibits 1 through 13, 15 through 43, 45 though 47, 49 through 55, and 57 through 62 were admitted into evidence. Respondent testified on his own behalf. Respondent's Exhibits 1 through 4 were admitted into evidence.
Respondent was licensed to practice law in Illinois on May 10, 2001. (Tr. 30, 96). Respondent began attempting to develop his own practice in 2005. He worked from his home and practiced alone. (Tr. 97-98).
Illinois Supreme Court Rule 756(a) requires attorneys admitted to practice law in Illinois to register and pay an annual fee to the ARDC on or before January first of each year. (Tr. 22-23). The Administrator is to prepare and maintain a Master Roll of attorneys who have either registered for the current year or are exempt from doing so. S.Ct.R. 756(b). An attorney who fails to register and pay the annual fee is removed from the Master Roll. An attorney who is not listed on the Master Roll is not authorized to practice law in Illinois or to hold him or her self out as so authorized. S.Ct.R. 756(b). (Tr. 23-24).
Thomas Wayne Peters ("Peters") is the Registrar for the ARDC. As such, he maintains the Master Roll. (Tr. 21-22). Peters testified his office sent all correspondence to the address to which the attorney requested that correspondence be sent. Attorneys are obliged to inform the Administrator of any address change within 30 days of the change. S.Ct.R. 756(c). Peters also explained his office changes an attorney's designated address if the attorney requests an address change. (Tr. 29).
During 2008-09, Peters and his staff utilized the following procedure. In early October, Initial Notices of Registration and billing for the subsequent year were sent to each attorney
registered in Illinois. (Tr. 24). The registration materials included instructions for registering and an insert stating only active attorneys, i.e., those who had registered, could practice law in Illinois. (Tr. 27; Adm. Ex. 61). Attorneys could register and pay the fee either online or by mail. (Tr. 25-26; Adm. Ex. 61). If an attorney did not register in response to the Initial Notice, a Final Notice of Registration would be sent at the beginning of January. (Tr. 25). The Final Notice was accompanied by the same instructions and insert that accompanied the Initial Notice. Thus, the Final Notice packet also informed the recipient that only attorneys who had registered could practice law in Illinois. (Tr. 27-28; Adm. Exs. 60, 61).
If a lawyer did not register after receiving the Final Notice, in February the lawyer's name was removed from the Master Roll. The Registrar's office informed an attorney of his or her removal from the Master Roll by sending the attorney a Notice of Removal. (Tr. 28-29).
In October 2007, the Registrar's office sent Respondent a registration form for 2008. Respondent was not exempt from the registration and payment requirements for that year. The Registrar's office did not receive Respondent's registration or annual fee by January 1, 2008 and, consequently, sent Respondent a Final Notice. (Tr. 30-31). When the Registrar's office did not receive Respondent's registration or fee by February 11, 2008, Respondent's name was removed from the Master Roll. The Registrar's office sent Respondent a Notice of Removal. (Tr. 31).
Respondent was restored to active status when he submitted his registration materials and paid his fee on March 24, 2008. (Tr. 31-32). During the interim, from February 11 until March 24, 2008, Respondent was not authorized to practice law in Illinois. (Tr. 34).
The Registrar's office sent Respondent a registration form for 2009. Respondent was not excused from the requirements of registration and payment for 2009. As of January 1, 2009, the Registrar's office had not received Respondent's registration or fee for 2009. Therefore, in
January 2009, the Registrar's office sent Respondent a Final Notice. (Tr. 35-36). The Registrar's office had not received Respondent's registration or fee by February 1, 2009. On February 23, 2009, the Registrar's office removed Respondent's name from the Master Roll and subsequently sent Respondent a Notice of Removal. (Tr. 36-37).
After submitting his registration form and paying the fee, on November 12, 2009 Respondent was restored to the Master Roll. Therefore, from February 23, 2009 until November 12, 2009, Respondent was not authorized to practice law in Illinois. (Tr. 37).
Peters testified that none of the mailings sent to Respondent in connection with his registration for 2008 or 2009 was returned to his office. (Tr. 34-35, 37-38).
While telephone numbers were available for the roughly 80,000 attorneys in Illinois in 2008-09, the system then in place at the Registrar's office used the U.S. mail as the exclusive means of notifying attorneys of removal from the Master Roll. In 2010, the Registrar's office implemented a system of also using email to notify attorneys at risk of removal from the Master Roll. (Tr. 24, 47-50). The Supreme Court Rules required only notification by mail. (Tr. 54-55). S.Ct.R. 756(c).
Codilis & Associates ("Codilis") represented the plaintiff in GMAC Mortgage LLC. v. Bush, et al., No. 08 CH 34608, a mortgage foreclosure action in the Circuit Court of Cook County, Illinois. As of September 30, 2009, judgment had been entered for the plaintiff and a sheriff's sale of the property had been approved. The Order approving the sheriff's sale was the final order in the case. From Codilis's viewpoint, the case was closed and nothing remained to be done. (Tr. 62-65; Adm. Ex. 52).
However, on October 8, 2009, a Motion to Quash Service of Process ("Motion to Quash") was filed. Respondent was listed as the defendants' attorney. (Tr. 63-64; Adm. Ex. 53).
Robert Daniel Spickerman, an attorney employed by Codilis, was in court on October 21, 2009 on unrelated matters. Respondent approached Spickerman and handed him a copy of the Motion to Quash. Spickerman had no prior notice of the Motion to Quash and no reason to expect any action in relation to the Bush case that day. (Tr. 65-66). Spickerman and Respondent obtained a briefing schedule, giving the plaintiff an opportunity to respond to the Motion to Quash. Respondent prepared the Order setting out the briefing schedule (Tr. 67; Adm. Ex. 54).
Attempts by the Codilis firm to reach Respondent at the number listed on the Order were unsuccessful. Therefore, a Codilis employee looked up Respondent on the ARDC's website. (Tr. 68, 71). The Codilis firm filed a Motion to Strike the Motion to Quash on the grounds Respondent had not filed an Appearance in the Bush case and was not currently authorized to practice law in Illinois. The Motion to Strike was granted. Codilis also reported the matter to the ARDC. (Tr. 71-73; Adm. Exs. 52, 55).
Respondent testified he had difficulty with his mail service because, in the building in which he lived and received his business mail, there were no individual mail boxes and mail was left in a central location. Sometimes Respondent did not receive his mail, received it late, or it was picked up by others. (Tr. 183-84).
Respondent knew he had to register. Respondent did not recall receiving the notices sent to him for 2008 and 2009, but acknowledged he might have received them. Respondent also acknowledged he had an obligation to know the rules relating to registration. (Tr. 96-98, 155-56). Respondent testified he did not understand that if he did not register and pay the annual fee, he would be removed from the Master Roll and would not be authorized to practice law. (Tr. 157-58). Respondent understood this by the time of the hearing. (Tr. 158-59). He was registered for 2011. (Resp. Ex. 4).
In 2008 and 2009, Respondent was financially able to pay the registration fee. Respondent continued to practice in those years even though he knew he had not registered in a timely fashion. (Tr. 97-99).
Respondent received a Notice of Impending Removal dated October 20, 2009, because of his failure to complete minimum continuing legal education ("MCLE") requirements. See S.Ct.R. 796. (Tr. 163-65; Adm. Ex. 62). This Notice also advised Respondent he had been removed from the Master Roll for failure to register and pay the registration fee. (Adm. Ex. 62).
Shortly after receiving this Notice, Respondent took action to restore his status as a lawyer in active practice and registered on November 12, 2009. (Tr. 171-72). However, Respondent prepared pleadings and appeared in court even after receiving the October 20, 2009 Notice. (Tr. 165-66). Respondent testified he did not then understand he could not practice law. (Tr. 166-67).
During the period in 2009 when he was not on the Master Roll, Respondent handled several legal matters. The Administrator's Exhibits establish that Respondent represented clients in eight separate matters during this time. Respondent's activity included preparing and filing pleadings in a suit to force a partition sale of real estate (Tr. 99-105; Adm. Exs. 2, 4-10), and representing the plaintiff and preparing pleadings in an eviction case, and preparing orders for matters in which he had appeared in court. (Tr. 106-13; Adm. Exs. 11, 13, 15-17).
Respondent handled some of these matters as an accommodation to a friend, who prepared the pleadings and Respondent appeared on his behalf (Tr. 133-34). Respondent later withdrew from these cases. (Tr. 146-47). Respondent testified the Bush case was one such matter. While testifying that he did not prepare the Motion to Quash, Respondent acknowledged
appearing in court and preparing the Order setting the briefing schedule as Spickerman described. Respondent was not on the Master Roll during that time. (Tr. 150-53).
Respondent regretted his misconduct. He testified that he did not intend to flaunt the Rules by continuing to practice. (Tr. 172-73).
Respondent paid a late fee of $25 per month for failing to register on time. (Tr. 173). He had registered in timely fashion since then, although only 2010 and 2011 were involved. (Tr. 175-78).
Evidence Offered in Aggravation and Mitigation
No evidence was offered directly in aggravation or mitigation.
Respondent has no prior discipline.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Administrator must prove the charges of misconduct and do so by clear and convincing evidence. In re Timpone, 208 Ill. 2d 371, 380, 804 N.E.2d 560 (2004). The Administrator met his burden of proof in this case.
Under Supreme Court Rule 756(g), the Administrator is to remove from the Master Roll any attorney who has not registered for a year by February 1 of that year. Any person whose name is not on the Master Roll and who practices law or holds him or her self out as authorized to practice law in Illinois is engaged in the unauthorized practice of law. S.Ct.R. 756(g).
Respondent admitted that, since 2001, he continuously held himself out as authorized to practice law. The evidence clearly demonstrates Respondent did not pay his registration fee in a timely way for 2008 and 2009, and, as a result, was removed from the Master Roll.
Respondent cured the problem for 2008 by March 24, 2008. See S.Ct.R. 756(h). However, for 2009, Respondent was removed from the Master Roll on February 23, 2009. He did not take action to be restored to active status until November 12, 2009, nearly nine months. In the meantime, Respondent clearly continued to practice law.
The theories advanced in Respondent's defense do not excuse the misconduct. One of these theories was that the ARDC is obligated to educate members of the bar on the need to register each year. This theory is not supported by Respondent's observation that the mission of the ARDC includes an educational component. The common maxim that ignorance of the law is no excuse applies particularly to attorneys. In re Cheronis, 114 Ill. 2d 527, 502 N.E.2d 722 (1986); In re Peterson, 98 SH 19, M.R. 15331 (Feb. 1, 1999). In particular, all attorneys are presumed to know the Supreme Court Rules. In re Scroggins, 89 SH 689, M.R. 8477 (Sept. 29, 1992) (Review Bd. at 8). That presumption, and the concomitant responsibility to follow those Rules, certainly applies to the rules governing attorneys' ability to practice their profession.
While Respondent testified he did not realize failure to register and pay the fee would cause him to be removed from the Master Roll, he also testified he knew he had to register and pay the annual fee. The "lack of education" defense is particularly unpersuasive when the Respondent admits he knew what was required of him. Further, any claimed lack of understanding of the consequence of failing to register is disingenuous, at least in relation to 2009, because the preceding year Respondent was removed from the Master Roll for precisely the same conduct.
Respondent asserts he had difficulty with his mail service, and did not receive all mail addressed to him and sent to his address. However, a failure to receive the registration notice does not excuse the failure to register. S.Ct.R. 756(c). Further, a person attempting to operate a
legal practice from a location at which mail service is often unreliable or insecure should make arrangements, such as obtaining a Post Office Box, to securely receive mail related to his practice.
Respondent seeks to avoid a finding of misconduct on the theory his failure to be on active status did not render his actions for his clients null and void. In support of this theory, Respondent relies on cases holding conduct on behalf of a client, undertaken by a person who does not have a current Illinois law license, is not always a nullity. E.g., Applebaum v. Rush University Medical Center, 231 Ill. 2d 429, 899 N.E.2d 262 (2008); People v. Brigham, 151 Ill. 2d 58, 600 N.E.2d 1178 (1992).
As these cases demonstrate, there is a significant difference between persons who have no license to practice law and attorneys who have met the requirements for licensure, but are not currently authorized to practice because of a technical deficiency, such as failure to pay a registration fee. This distinction can affect how the court system treats the actions of such individuals on behalf of clients. Applebaum, 231 Ill. 2d at 441-42; Brigham, 151 Ill. 2d at 63-64.
Those cases, however, are not decided in the disciplinary context. The Supreme Court retains the inherent power to regulate the practice of law, and disciplinary proceedings are governed solely by the Court's rules and decisions. In re Ettinger, 128 Ill. 2d 351, 365, 538 N.E.2d 1152 (1989).
Supreme Court Rule. 756 is one element of the Court's regulatory scheme, providing a mechanism for facilitating the annual registration and payment of fees by every attorney admitted to practice in Illinois. S.Ct.R. 756(a). The fact this legal norm is not designed specifically to protect clients, Applebaum, 231 Ill. 2d at 440, does not render its violation inconsequential.
Registration and payment of the annual fee is a prerequisite to the authorized practice of law in this State. Brigham, 151 Ill. 2d at 66, citing Johnson v. State, 225 Kan. 458, 590 P.2d 1082 (1979). Attorneys who are not exempt from the requirements of Rule 756 have an affirmative obligation to register each year and to pay the annual registration fee. S.Ct.R. 756(a). Attorneys similarly have an affirmative obligation to refrain from holding themselves out as authorized to practice law and from practicing law if they have not registered and paid the annual fee. S.Ct.R. 756(b). Attorneys who are removed from the Master Roll for failing to comply with these obligations, yet practice law notwithstanding such removal are subject to discipline for engaging in the unauthorized practice of law. S.Ct.R. 756(g); Peterson, 98 SH 19 (Hearing Bd. at 22-23).
A person who holds him or her self out as authorized to practice law when he or she has been removed from the Master Roll of attorneys for failure to register and pay the annual fee also engages in conduct which prejudices the administration of justice and tends to bring the courts or legal system into disrepute. In re Angarone, 09 CH 24, M.R. 23528 (Jan. 21, 2010); Peterson, 98 SH 19 (Hearing Bd. at 22-23). Continued practice by an attorney who is not properly registered to practice law can diminish the public's perception of the effectiveness of the Court's system for regulating and supervising members of the bar. Thus attorneys who engage in the unauthorized practice of law also violate Supreme Court Rule 770. See generally In re Howard, 188 Ill. 2d 423, 721 N.E.2d 1126 (1999).
Therefore, we find that Respondent engaged in the following misconduct:
practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction, in violation of Rule 5.5(a) of the Illinois Rules of Professional Conduct of 1990 and Supreme Court Rule 756(g); 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.
While the system strives for consistency in the sanctions imposed for similar conduct, each case of attorney misconduct is unique and requires an independent evaluation of its own particular facts and circumstances. Cheronis, 114 Ill. 2d at 535. The underlying misconduct is an important consideration in determining the sanction to recommend. In re Bell, 147 Ill. 2d 15, 37, 588 N.E.2d 1093 (1992). Aggravating and mitigating factors are also relevant. In re Ring, 141 Ill. 2d 128, 145, 565 N.E.2d 983 (1990). We also are mindful of the purposes of discipline, which is not to punish the individual respondent, but to protect the public, uphold the integrity of the legal profession, and protect the administration of justice from reproach. Bell, 147 Ill. 2d at 373-38.
Although Respondent contends no sanction is warranted, the Administrator proved Respondent engaged in the misconduct charged. While not of the most serious nature, Respondent's misconduct is not inconsequential. Sanctions have been imposed on other attorneys for similar misconduct. E.g., Angarone, 09 CH 24; In re Ambutas, 07 CH 58, M.R. 22239 (Mar. 17, 2008).
The Administrator seeks a recommendation that Respondent be censured and required to complete the ARDC Professionalism Seminar.
The discipline recommended by the Administrator is consistent with the nature of Respondent's misconduct and with discipline imposed on respondents who have engaged in similar misconduct in other cases. E.g., Angarone, 09 CH 24; Ambutas, 07 CH 58. Having considered all of the factors relevant to appropriate discipline in the matter, we recommend Respondent be censured and required to complete the ARDC Professionalism Seminar within
one year after the entry of the Supreme Court's final order. This additional requirement will enhance Respondent's awareness of his ethical obligations.
Date Entered: April 27, 2011
|Michael C. Greenfield, Chair, with Karen A. Caraher and Steven J. Casey, Panel Members.|