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

In the Matter of:

ELLEN FRANCES LANG,

Attorney-Respondent, 

No. 6203508.

 

Commission No.    2010PR00120

FILED -  August 25, 2010

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Alicia F. Duncan, pursuant to Supreme Court Rule 753(b), complains of Respondent, Ellen Frances Lang, who was licensed to practice law in the State of Illinois on July 17, 1990, 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:

COUNT I
(Breach of Fiduciary Duty and Fraud)

1. In or prior to 2006, Lenore S. Lang ("Lenore") allowed Respondent to reside in a home Lenore owned, at 1530 Tower Road in Winnetka (the "Winnetka house") under the terms that Respondent would pay rent and other expenses normally paid by tenants and Lenore would pay the expenses normally paid by landlords. At the time Respondent resided at the Winnetka house, Lenore had moved out of state and was residing in La Jolla, California.

2. In or about 2006, Respondent told Lenore that she was suffering from cancer and needed a place to live near her cancer treatment center in Evanston.

3. Respondent's statements to Lenore that she was suffering from cancer were false, and Respondent knew they were false because she never had cancer. Respondent's statements to Lenore that she was suffering from cancer were made for the purpose of inducing Lenore to purchase a house in Evanston to be used for Respondent's benefit.

4. In or about 2006, in reliance upon Respondent's statements as set forth in paragraph 3, above, Lenore decided to sell the Winnetka house and use some of the proceeds from the sale to purchase a smaller house in Evanston where she would allow Respondent to reside as a tenant under the terms similar to that for the Winnetka house.

5. Respondent acted as Lenore's attorney for the sale of the Winnetka house and the purchase of the Evanston house.

6. By reason of the trust and confidence that Lenore placed in Respondent pursuant to the attorney-client relationship, Respondent stood in a position of a fiduciary to Lenore. As such, Respondent owed Lenore the fiduciary duties attendant to the attorney-client relationship, including the duty to perform the requested services with the highest degree of honesty, fidelity, and good faith, a duty of undivided loyalty, a duty to avoid placing herself in a position where her interests would conflict with the interests of her client, and a duty of care, including but not limited to a duty to ascertain if the actions she was taking on behalf of Lenore accurately reflected Lenore's desires and protected Lenore's legal interests.

7. In late 2006, Respondent negotiated the purchase of property located at 2228 Grant Street in Evanston (the "Evanston house") for $532,000.

8. Between October 20, 2006, and November 24, 2006, at Respondent's request, Lenore gave Respondent $118,000 for what Respondent represented to be the amount of the earnest money and cash balance required to purchase the Evanston house.

9. Of the $118,000, as set forth in paragraph eight, above, Respondent used $109,679.14 to pay the equity portion of the purchase price and closing costs for the Evanston house.

10. In order to close on the Evanston house, Lenore obtained a mortgage for bridge financing from ING Direct in the principal amount of $425,600 (the "ING Mortgage"). The ING Mortgage was secured by the Evanston house and was paid off at the time of the closing of the Winnetka house, which was sold on or about July 18, 2007.

11. The ING Mortgage was in the name of Lenore as Lenore was the owner of the Winnetka house and was to be the sole owner of the Evanston house.

12. All of the funds for the purchase of the Evanston house were furnished by Lenore and title to the Evanston house was to be in the name of Lenore only.

13. On or about November 29, 2006, the date of the closing on the purchase of the Evanston house, Respondent directed the sellers of the Evanston house to furnish a Warranty Deed conveying the property to Respondent, not Lenore.

14. Respondent did not have Lenore's authority to direct the sellers of the Evanston house to furnish a Warranty Deed conveying the property to Respondent, not Lenore.

15. On December 14, 2006, Respondent caused the Warranty Deed to be recorded as document number 0634802136.

16. On or about October 24, 2007, Respondent executed a mortgage in the amount of $150,000, as mortgagor, in favor of Charter One, as mortgagee, and encumbered the Evanston house with the mortgage which was recorded against the Evanston house as document number 0731308369 on November 9, 2007 (the "Charter One Mortgage").

17. Respondent did not have Lenore's authority to execute the mortgage as set forth in paragraph 16, above.

18. Respondent's execution of Charter One Mortgage was fraudulent, and Respondent knew it was fraudulent, because she knew she did not have Lenore's authority to execute a mortgage encumbering the Evanston house.

19. Respondent converted the $150,000 from the Charter One Mortgage to her own use and paid no portion of those proceeds to Lenore.

20. On June 29, 2009, Respondent sent an email to Lenore's husband, Carl A. Auerbach ("Auerbach") in which she informed Lenore for the first time that Respondent placed the tile to the Evanston Property in Respondent's name and placed a $150,000 mortgage on the Evanston house.

21. In the June 29, 2009, email to Auerbach, Respondent offered to "do a quit claim deed now" conveying the Evanston house to Lenore.

22. Respondent did not take any action to convey the Evanston house to Lenore until after July 15, 2009, the date Lenore filed a complaint to quiet title and for other relief, Lenore S. Lang v. Ellen F. Lang, et. al., case number 09 CH 23534, in the Circuit Court of Cook County Chancery Division.

23. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. breach of fiduciary duty;

  2. conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990); and

  3. 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.

COUNT II
(Failure to Respond to Lawful Demand for Information from the Commission)

24. The Administrator realleges the facts set forth in paragraphs one through 22 of Count I, above.

25. On July 17, 2009, the Administrator received a letter from attorney David E. Muschler ("Muschler") regarding Respondent's conduct as outlined in Count I, above. The Administrator docketed an inquiry into Respondent's alleged conduct as Investigation No. 09 CI 3068.

26. On July 27, 2009, and August 18, 2009, the Administrator sent letters to Respondent at her registered address advising her of Investigation No. 09 CI 3068 and requesting her response to Muschler's allegations. Respondent received the Administrator's correspondence shortly after the dates on which they were sent.

27. On August 24, 2009, Respondent sent a letter to the Administrator providing a new address in Denver, Colorado. Respondent requested a 14 day extension to provide a response in the matter. At no time after August 24, 2009, however, did Respondent respond to the Administrator's letters dated July 27, 2009 and August 18, 2009, described in paragraph 26, above.

28. On June 9, 2010, the Administrator issued a subpoena duces tecum to Respondent requiring her appearance on June 29, 2010, at 10:00 a.m., at the Chicago offices of the Attorney Registration and Disciplinary Commission in relation to Investigation No. 09 CI 3068. On June 14, 2010, Respondent was served with the subpoena duces tecum via certified mail at her address in Denver, Colorado.

29. Respondent did not appear before the Administrator and give sworn testimony on June 20, 2010, as required by the subpoena duces tecum served upon her on June 14, 2010 in relation to Investigation No. 09 CI 3068.

30. As of August 23, 2010, the date the Inquiry Board of the Commission voted that this complaint be filed against Respondent, Respondent had not responded in writing or appeared pursuant to subpoena. Respondent's appearance was never waived or excused.

31. By reason of the conduct outlined above, Respondent has engaged in the following misconduct:

  1. failing to respond to a lawful demand for information from a disciplinary authority, in violation of Rule 8.1(a)(2) of the Illinois Rules of Professional Conduct (2009);

  2. knowingly failing to respond to a lawful demand for information from a disciplinary authority, in violation of Rule 8.1(b) of the 2010 Illinois Rules of Professional Conduct;

  3. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (2009);

  4. conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a) of the 2010 Illinois Rules of Professional Conduct; and

  5. 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.

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.

Alicia F. Duncan
Counsel for the Administrator
One Prudential Plaza
130 East Randolph Drive, Suite 1500
Chicago, Illinois 60601-6219
Telephone: (312) 565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Alicia F. Duncan