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

In the Matter of:

JOHN DEVIN CASHMAN,

Attorney-Respondent, 

No.  6187488

 

Commission No. 2011PR00141   

FILED -  December 6, 2011

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, pursuant to Supreme Court Rule 753(b), complains of Respondent, John Devin Cashman, who was licensed to practice law in Illinois on November 16, 1984, 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
(Conversion Ė In re Estate of Elizabeth L. Wilkins)

1. On February 13, 2008, Elizabeth L. Wilkins ("Wilkins") died testate in Quincy, Illinois. Wilkins had named her niece, Marcia Bower ("Bower") as the executor of her will.

2. On or about February 26, 2008, Respondent and Bower agreed that Respondent would represent Bower as executor of Wilkinsí estate. Respondent and Bower agreed that Respondentís fee would be $7,500 for the entire case, including filing the probate case, gathering the assets, filing the inventory, and making the distributions. On April 1, 2008, Bower paid Respondent the entire fee of $7,500.

3. On February 27, 2008, Respondent filed a petition for probate of will and for letters testamentary in Adams County. The case was docketed as In re Estate of Elizabeth L. Wilkins, Adams County case number 08 P 29.

4. On March 8, 2008, Bower opened an account, ending in the four digits "0601", at Town and County Bank, in the name of Elizabeth L. Wilkins Estate. Bower thereafter used the account to pay bills on behalf of the Wilkins estate.

5. On or about May 13, 2008, at Respondentís request, the auctioneer who was selling the decedentís home sent Respondent the proceeds from the sale of Wilkinsí home, by check number 552601 in the amount of $87,813.83 from Mercantile Bank. Respondent deposited the proceeds into his client trust account at 1st Bankers Trust, which ended in the four digits "3601". The name of the trust account was "J. Devin Cashman Attorney Client Trust Fund" ("trust account").

6. Respondent thereafter used substantially all of the $87,813.83 from the proceeds of the sale of Wilkinsí home for Respondentís own personal or business purposes. Specifically, Respondent made the following withdrawals from his trust account:

DATE

CHECK NUMBER

PAYEE

AMOUNT

May 15, 2008

1034

J. Devin Cashman

$9,500

May 23, 2008

1035

J. Devin Cashman

$9,000

May 30, 2008

1036

J. Devin Cashman

$8,500

June 19, 2008

1037

J. Devin Cashman

$37,000

July 7, 2008

1038

J. Devin Cashman

$7,500

July 18, 2008

1039

J. Devin Cashman

$3,000

August 6, 2008

1040

J. Devin Cashman

$7,000

August 11, 2008

1041

J. Devin Cashman

$4,000

September 11, 2008

1042

Novus Technology

$1,050

October 3, 2008

1043

J. Devin Cashman

$1,075

TOTAL

$87,625.00

7. At no time did Bower or the probate court give Respondent authority to use any portion of the proceeds of check number 552601 for Respondentís own personal or business purposes. As of October 21, 2008, the balance of Respondentís trust account was $278.71.

8. In November 2008, Respondent asked Bower to close the estate account at Town and Country Bank and transfer the proceeds to his trust account so that Respondent could distribute the proceeds of the estate from his trust account. Bower agreed, and on November 26, 2008, Bower transferred the remaining funds in the estate account to Respondent by a check in the amount of $71,143.92. On November 26, 2008, Respondent deposited the $71,143.92 into his trust account.

9. On May 27, 2009, Respondent deposited a check from Washington National in the amount of $3,802.73 into his trust account. The check was payment to the Wilkinsí estate on an insurance policy.

10. Between November 26, 2008 and November 5, 2009, Respondent used $74,946.75 of the funds then held in his trust account for Wilkinsí estate for Respondentís own personal or business purposes. Specifically, Respondent made the following withdrawals from his trust account:

DATE

CHECK NUMBER

PAYEE

AMOUNT

November 26, 2008

1045

J. Devin Cashman

$8,250.00

December 30, 2008

None

Cash

$12,848.49

December 31, 2008

1046

J. Devin Cashman

$4,000.00

January 5, 2009

1047

Novus Technology

$20,150.00

January 13, 2009

1048

Henson-Spear Funeral (Annabelle Cashman)

$12,000.00

March 30, 2009

1049

Secretary of State

$500.00

March 25, 2009

1050

J. Devin Cashman

$5,000.00

April 3, 2009

1051

Shay Drummond

$1,500.00

April 7, 2009

1052

Circuit Clerk (Kyitle)

$292.00

April 29, 2009

1053

J. Devin Cashman

$5,000.00

May 21, 2009

1054

Quincy Motors

$720.02

May 22, 2009

1055

Novus Technology

$1,050.00

May 29, 2009

1056

J. Devin Cashman

$3,000.00

June 3, 2009

1057

Anita Peters

$145.00

September 16, 2009

1059

Dennis Rineberg

$276.98

September 17, 2009

1060

J. Devin Cashman

$500.00

September 18, 2009

1061

David C. Little

$603.00

September 18, 2009

1062

Adams County Recorder

$308.25

September 21, 2009

1063

William Gross

$2,311.77

September 30, 2009

1064

Lewis County Clerk

$139.00

October 14, 2009

1065

Highland Music Booster Club

$150.00

November 5, 2009

1066

J. Devin Cashman

$2,000.00

   

TOTAL

11. At no time did Bower or the probate court give Respondent authority to use any of the estate funds described above for Respondentís own personal or business purposes.

12. As of November 17, 2009, the balance in Respondentís trust account was $544.53.

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

  1. conversion of client funds;

  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
(False statements to the executor and an heir, and filing a false pleading Ė Wilkins Estate)

14. The Administrator realleges Paragraphs 1 Ė 12 of Count I, above.

15. On May 9, 2009, Respondent sent Bower a revised copy of the final account. The final account listed some of the inventory in the estate, but did not list the proceeds from the sale of the home ($87, 813.13).

16. Respondentís statement of the inventory in the final account was false, in that Respondent did not disclose the proceeds from the sale of Wilkinsí home, which he received in May 2008.

17. Respondent omitted the proceeds from the sale of Wilkinsí home from the inventory to mislead Bower regarding his receipt and conversion of the funds.

18. Respondent knew his statement of the inventory was false.

19. As of October 5, 2009, Respondent had not distributed the proceeds of the estate to the beneficiaries.

20. On or before October 5, 2009, Respondent prepared a final report of independent representative ("final report") and asked Bower to sign it. Bower signed the final report, and, on October 5, 2009, Respondent filed it in case number 08 P 29.

21. The Final Report, at Paragraph 6, stated:

All administrative expenses and other liabilities of the estate have been paid, and the remaining assets of the estate have been distributed to the persons entitled thereto, copies of the inventory and final account have been mailed to all interested persons and their receipts therefore have been obtained ad [sic] are attached, and the independent representative has fully accounted to all interested persons for all acts of administration and distribution.

22. The final report prepared by Respondent was false, in that the remaining assets had not been distributed, and had, in fact been converted in substantial part by Respondent.

23. The final report prepared by Respondent was also false in that receipts had not been obtained, and were not attached to the pleading.

24. Respondent knew the statements in the final report submitted to the court were false.

25. In 2010, Bower called Respondent on at least five occasions about the estate. Respondent told her on one occasion that he could not close the estate because the "courthouse had lost the papers," and that he would have to recreate the paperwork.

26. Respondentís statement the estate could not be closed because the "courthouse had lost the papers" was false, as the courthouse had not lost any papers relating to the file.

27. On July 18, 2011, Respondent appeared before the court in case number 08 P 27. The Court approved the final report, which falsely stated that the assets had been distributed to the persons entitled thereto, and closed the estate.

28. On or about October 7, 2011, one of the heirs, Edwin Scott ("Edwin"), contacted Respondentís office about the estate, and inquired about the status of the disbursements.

29. Respondent instructed his secretary to tell Edwin that the checks had been sent out but were cancelled and that new checks were ready to send, but they had to be certified.

30. Respondentís secretary then told Edwin that the checks had been sent out, but were cancelled, and that new checks were ready to send but had to be certified.

31. Respondentís statement to his secretary, and to Edwin through Respondentís secretary, that the checks had been sent out and that new checks were ready to send was false, and he knew the statement was false.

32. Respondent made the statement in paragraph 29, above, to mislead Edwin about the status of the case, and to conceal the fact that Respondent had converted substantially all of the proceeds of the Wilkinsí estate.

33. By reason of the conduct outlined above, Respondent has engaged in the following misconduct prior to January 1, 2010:

  1. offering evidence the lawyer knows is false, in violation of Rule 3.3(4) of the Illinois Rules of Professional Conduct (1990);

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

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

  4. 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.

34 By reason of the conduct outlined above, Respondent has engaged in the following misconduct after January 1, 2010:

  1. offering evidence the lawyer knows is false, in violation of Rule 3.3(4) of the Illinois Rules of Professional Conduct (1990);

  2. making a false statement of material fact or law to a third person, in violation of Rule 4.1(a) of the Illinois Rules of Professional Conduct (2010);

  3. knowingly assisting or inducing another to violate the Rules of Professional Conduct, by instructing his secretary to make a misrepresentation to Edwin Scott, in violation of Rule 8.4(a) and 4.1(a) of the Illinois Rules of Professional Conduct (2010);

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

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

  6. 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 III
(Conversion Ė In re Estate of Meta Lichtenberg)

35. On July 29, 2009, Meta Lichtenberg ("Lichtenberg") died testate in Quincy, Illinois. Lichtenbergís financial advisor, Craig Cherington ("Cherington"), of Bates Securities, Inc. was the executor of her will.

36. On or about August 1, 2009, Cherington and Respondent agreed that Respondent would represent Cherington as executor of Lichtenbergís estate. Cherington and Respondent agreed that Respondentís fee would be a fixed amount of $14,000. Respondent agreed to file the probate case, file the inventory, and make distributions to the beneficiaries. Respondent and Cherington agreed that Respondentís fee would be 4.5% of the gross estate, with $7.000 to be paid immediately, and the balance to be paid at final distribution. Cherington paid Respondent $7,000 for his fees in August 2009.

37. On August 11, 2009, Respondent filed a petition for probate of will and for letters testamentary in Adams County. The case was docketed as In re Estate of Meta E. Lichtenberg, Adams County case number 09 P 130.

38. On or about March 9, 2010, Cherington and Respondent had a discussion concerning payment of two specific bequests from Lichtenbergís will: a $10,000 bequest to Cardinal Glennonís Memorial Children Hospital in St. Louis Missouri, and a $5,000 bequest to Zion Methodist Cemetery in Truxton, Missouri. Cherington told Respondent that he was not sure how to handle these matters, and Respondent told Cherington to send Respondent the funds and Respondent would handle the bequests.

39. On or about March 9, 2010, Cherington gave Respondent check number 110 from a Bank of America account ending in "9724", in the amount of $15,000, from the Estate of Meta Lichtenberg. On March 9, 2010, Respondent deposited the check into his trust account at 1St Bankerís Trust, account number ending in "3601" ("trust account").

40. Respondent thereafter used for his own business or personal purposes the $15,000 entrusted to him from Cherington. Specifically, Respondent made the following withdrawals from his trust account:

DATE

CHECK NUMBER

PAYEE

AMOUNT

March 12, 2010

1067

J. Devin Cashman

$3,250.00

March 23, 2010

1068

J. Devin Cashman

$1,750.00

April 13, 2010

1069

J. Devin Cashman

$3,250.00

May 3, 2010

1070

J. Devin Cashman

$2,000.00

May 11, 2010

1071

J. Devin Cashman

$3,000.00

May 26, 2010

1072

J. Devin Cashman

$1,000.00

June 26, 2010

1073

J. Devin Cashman

$1,000.00

   

TOTAL

$15,250.00

41. As of June 26, 2010, the balance in Respondentís Trust Account was $298.77.

42. At no time did Cherington or the probate court authorize Respondent to use the funds described above for Respondentís own business or personal purposes.

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

  1. conversion of client funds;

  2. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);

  3. engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (2010); and

  4. 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 IV
(Conversion of Estate of Meta Lichtenberg and Elsie Lichtenberg 2010 Tax Payments)

44. The Administrator realleges Paragraphs 35-42 of Count III.

45. In 2011, Respondent agreed to file income tax returns for Lichtenbergís estate, and to file income tax returns for Lichtenbergís sister, Elsie Lichtenberg ("Elsie").

46. On or about April 20, 2011, Cherington sent check number 1010 which had been drawn on an account ending in the four digits 6032 at State Street Bank. Account number 6032 was entitled "Meta E. Lichtenberg Trust." Cherington sent Respondent check number 1010, in the amount of $1,915 for purposes of paying taxes on Lichtenbergís estate.

47. On or about April 20, 2011, in his capacity as power of attorney for Elise, Cherington sent Respondent check number 1605 drawn on an account ending in the four digits 3016 at Bank of America. Account number 3106 was entitled Elsie Lichtenberg. Cherington sent check number 1605 for purposes of paying Elsieís 2010 state and federal income tax.

48. The total of the checks described above sent by Cherington to Respondent for purposes of paying taxes for Lichtenberg and Elsie was $19,555.

49. Respondent deposited the checks described above into his trust account.

50. Between April 27, 2011 and July 13, 2011, Respondent used substantially all of the $19,555 entrusted to him by Cherington for Respondentís own personal or business purposes. Specifically, Respondent made the following withdrawals from his trust account:

DATE

CHECK NUMBER

PAYEE

AMOUNT

April 27, 2011

1083

J. Devin Cashman

$4,750.00

May 4, 2011

1084

J. Devin Cashman

$4,000.00

May 11, 2011

1085

Donald Scott

$5,000.00

June 16, 2011

1086

J. Devin Cashman

$4,000.00

July 13, 2011

1087

J. Devin Cashman

$1,500.00

   

TOTAL

$19,250.00

51. As of July 13, 2011, the balance in Respondentís trust account was $607.70.

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

  1. conversion of client funds;

  2. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010);

  3. engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (2010); and

  4. 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 V
(Failure to cooperate with the Administrator)

53. On June 9, 2011, the Administrator received a Request for Investigation regarding Respondentís representation of Marcia Bower, executor, in In re Estate of Elizabeth L. Wilkins.

54. On June 9, 2011, the Administrator docketed investigation number 2011IN02535. On June 15, 2011, the Administrator sent Respondent a letter asking for a response to the allegations in the Request for Investigation. Respondent received the letter.

55. On July 14, 2011, the Administrator sent a second letter requesting a response. Respondent received the letter.

56. On July 20, 2011, Respondent sent the Administrator a response, stating he had resolved the issues with Bower.

57. On August 31, 2011, the Administrator sent Respondent a letter requesting additional information, including copies of any distribution checks sent to Wilkinsí heirs.

58. Respondent received the Administratorís August 31, 2011 letter, but at no time did he provide the information requested in the letter, including copies of the distribution checks.

59. On October 7, 2011, the Administrator sent another letter to Respondent requesting copies of the distribution checks and other information. Respondent received the letter.

60. At no time did Respondent respond to the October 7, 2011 letter.

61. On October 20, 2011, Respondent was personally served with a subpoena duces tecum directing him to appear for a sworn statement before the Administrator on November 9, 2011.

62. On November 8, 2011, Respondent contacted one of the Administratorís counsel and requested that the sworn statement be rescheduled. The Administratorís counsel and Respondent agreed that the statement would be rescheduled to November 17, 2011, at 2:00 p.m.

63. On November 17, 2011, Respondent called the Administratorís counsel and left a voice mail message stating that he would not appear for the statement because he had the flu.

64. On November 17, 2011, Respondent played golf in the afternoon at the Quincy Country Club.

65. Respondentís statement that he could not attend the sworn statement because he had the flu was false.

66. Respondent knew his statement was false.

67. On November 17, 2011, the Administrator referred the matter to the Inquiry Board.

68. As of November 29, 2011, the date the Complaint was voted by the Inquiry Board, Respondent had not produced the requested documents or appeared for a sworn statement. Respondentís appearance was never waived or excused by the Administrator.

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

  1. failure to respond to lawful demands for information requested by the Administrator, in violation of Rule 8.1(b) of the Illinois Rules of Professional Conduct (2010);

  2. conduct prejudicial to the administration of justice in violation of Rule 8.4 (d) of the Illinois Rules of Professional Conduct (2010); 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.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Denise Church
Attorney Registration and
Disciplinary Commission
One North Old Capitol Plaza, Suite #333
Springfield, Illinois 62701
Telephone: (217) 522-6838
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Counsel for the Administrator