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

In the Matter of:

RICHARD F. SCHOLZ III,

Attorney-Respondent, 

No. 2504189.

 

Commission No. 2011PR00114

FILED - March 28, 2012

FIRST AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorneys, Emily A. Adams and Peter L. Rotskoff, pursuant to Supreme Court Rule 753(b), complains of Respondent, Richard F. Scholz III, who was licensed to practice law in Illinois on November 1, 1977, 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 and which subjects Respondent to discipline pursuant to Supreme Court Rule 770.

COUNT I
(Lack of Diligence in the Lloyd O. Nelson Estate Matter)

1. On April 12, 2007, Lloyd O. Nelson (hereinafter "Nelson") died at Blessing Hospital in Quincy, Illinois. Nelson's heirs included two daughters, Lindsey Sabraw and Diana Nelson, and one son in Michigan, whose whereabouts were unknown. Nelson died intestate and he had a small estate consisting of account number 313769 at Central State Bank in Quincy, Illinois with a balance of approximately $9,727, no real estate and some personal items.

2. Nelson's daughter, Lindsey Sabraw (hereinafter "Sabraw"), lived in Hawaii at the time of Nelson's death and was unable to assist in the administration of Nelson's estate. Thereafter, Sabraw's mother and Nelson's ex-wife, Maycell McCartney (hereinafter "McCartney"), took it upon herself to see that Nelson's estate was administered.

3. On or about May 24, 2007, Respondent agreed to represent McCartney in matters relating to the administration of Nelson's estate. Respondent was hired to liquidate the assets in Nelson's estate and distribute the proceeds of the estate to Nelson's heirs. McCartney paid Respondent $500 total for the representation.

4. In or about July 2007, McCartney forwarded to Respondent uncashed checks found by McCartney in Nelson's home after he died. The checks included checks from the Veteran's Administration, checks from the Social Security Administration, and checks from the state retirement system. Respondent did not deposit or negotiate the checks, but he kept them in his client file related to Nelson's estate.

5. In or about the fall of 2007, Respondent received a check from Mitchell, Powell & Connor Auction Service (hereinafter "Mitchell's"). Mitchell's sold Nelson's personal property and issued a check in the amount of $2,692.52 (representing the proceeds from the sale of some of Nelson's personal property) and the check was used to pay Zehnder, Robinson, Stormer, and Cookson (hereinafter "the funeral home"), for Nelson's funeral expenses. Nelson's funeral expenses amounted to $2,349. On or about January 11, 2008, the funeral home sent Respondent check number 4506 as a refund in the amount of $343.52 made payable to the Lloyd Nelson Estate. At no time did Respondent cash this check, but he kept it in his client file related to Nelson's estate.

6. Mitchell's also sent Respondent check number 2905, for the sale of Nelson's automobile, in the amount of $2,325. At no time did Respondent cash this check, but he kept it in his client file related to Nelson's estate.

7. Mitchell's continued to call Respondent's office to find out why check number 2905 was never cashed. After two years, on December 4, 2009, Mitchell's requested and received the old check from Respondent, check number 2905, and issued a new check, check number 3491, for the same amount. At no time did Respondent cash this check, but he kept it in his client file related to Nelson's estate.

8. Between April 30, 2010 and September 2, 2010, Mitchell's called Respondent's law office on at least five separate occasions to inquire as to why check number 3491 had not been cashed. Each time, Respondent's secretary told Mitchell's that the check would be taken care of. At no time did Respondent cash the check or forward it to Nelson's heirs. Respondent knew or should have known of Mitchell's inquiries as to why the check had not been cashed.

9. Between 2007 and 2010, McCartney regularly called Respondent and left messages to inquire as to the status of the estate matter. At no time did Respondent return her calls.

10. In or about September 2010, McCartney regularly called Respondent and left messages. When she was finally able to speak to him by phone, Respondent told her that he was going to get a court order to have Central State Bank turn over Nelson's account to the estate and he was also going to publish a newspaper notice concerning Nelson's son in Michigan. At no time did Respondent complete these tasks.

11. On or about May 9, 2011, McCartney met with Respondent at Respondent's law office. Respondent told McCartney that he would get the above mentioned checks reissued and administer the estate. Respondent represented to McCartney that it would take approximately six weeks to resolve the matter. At no time did Respondent get the checks reissued or take any other steps to complete the estate administration.

12. On June 23, 2011, McCartney left a message with Respondent's office for him to call her. At no time did Respondent return McCartney's call.

13. By reason of the conduct described above, which occurred on or before January 1, 2010, Respondent had engaged in the following misconduct:

  1. failing to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (1990).

14. By reason of the conduct described above, which occurred on or after January 1, 2010, Respondent had engaged in the following misconduct:

  1. failing to act with reasonable diligence and promptness in representing a client in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010).

COUNT II
(Failure to Cooperate in a Disciplinary Investigation)

15. The Administrator re-alleges the facts set forth in paragraphs one through 14, above.

16. On or about May 5, 2011, Patricia Holliday (hereinafter "Holliday") submitted to the Attorney Registration and Disciplinary Commission a request for investigation of Respondent regarding Respondent's alleged conduct in representing Holliday's granddaughter, Destyne Bowden, in a criminal case. After reviewing the information provided by Holliday, the Administrator initiated an investigation into Respondent's conduct.

17. On May 10, 2011, counsel for the Administrator sent a letter to Respondent requesting that Respondent provide a written response to Holliday's allegations within 14 days, or by May 24, 2011. Respondent received the Administrator's May 10, 2011 letter shortly thereafter.

18. As of July 5, 2011, Respondent had not responded to the Administrator's May 10, 2011 letter. On July 5, 2011, the Administrator sent Respondent a second letter requesting that Respondent submit a written response to Holliday's allegations within seven days, or by July 12, 2011. Respondent received the Administrator's July 5, 2011 letter shortly thereafter.

19. As of July 21, 2011, Respondent had not responded to Holliday's allegations. On July 21, 2011, the Administrator issued a subpoena duces tecum to Respondent by Federal Express, which required Respondent to produce documents and appear for a sworn statement regarding the Holliday matter at the Commission's Springfield office on August 3, 2011. Respondent's secretary, Cathy Harvey, signed for the Federal Express package containing the subpoena duces tecum on July 22, 2011. Respondent knew or should have known that he was required to appear for a sworn statement at the Commission's Springfield office on August 3, 2011.

20. On August 3, 2011, Respondent did not appear for his sworn statement, nor did he produce any of the documents requested by the Administrator's July 21, 2011 subpoena duces tecum.

21. On August 4, 2011, Respondent was personally served with a subpoena duces tecum, which required him to produce documents and appear for a sworn statement regarding the Holliday and McCartney matters at the Commission's Springfield office on August 16, 2011.

22. On August 16, 2011, Respondent did not appear for his sworn statement, nor did he produce any of the documents requested by the Administrator's August 4, 2011 subpoena duces tecum.

23. At no time prior to August 29, 2011, the date Inquiry Panel F voted that a complaint be filed against Respondent in this matter, did Respondent appear for his sworn statement, produce any documents, or respond to Holliday's allegations in writing. At no time has the Administrator excused or waived Respondent's appearance or production of documents in response to the August 4, 2011 subpoena duces tecum.

24. By reason of the conduct described above, Respondent had engaged in the following misconduct:

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

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

COUNT III
(False Statements to the Court)

25. In or around October 2011, Respondent agreed to represent Roger Willing ("Willing"), who had been charged with Aggravated Battery with a Deadly Weapon, Unlawful Possession of Weapons by a Felon and Domestic Battery, in the Circuit Court, Adams County, Illinois. People v. Willing, 11 CF 589.

26. As a condition of bond, Willing was required to stay 1,000 feet from the victim and her residence and wear a GPS surveillance ankle monitor.

27. On October 28, 2011, Respondent appeared with Willing in case no. 11 CF 589, before the Honorable Robert K. Adrian. Assistant State's Attorney Jennifer Cifaldi ("Cifaldi") appeared on behalf of State. Cifaldi was not usually assigned to Judge Adrian's Misdemeanor and Felony docket, but she was filling in for another Assistant State's Attorney who was out of the office that day.

28. After case no. 11 CF 589 was called, Respondent made an oral motion to have the GPS monitor removed from Willing's ankle.

29. Respondent represented to the Court and Cifaldi that he had spoken to Adams County First Assistant State's Attorney Gary Farha ("Farha") and that Farha did not oppose the removal of the ankle monitor.

30. Respondent's statements to the Court that he had spoken to Farha about the removal of Willing's ankle monitor and that Farha did not oppose the removal of the monitor, were false.

31. Respondent knew that his statements, set forth in paragraph 29 above, were false.

32. By reason of the conduct described above, Respondent had engaged in the following misconduct:

  1. knowingly making a false statement of fact or law to a tribunal in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010); and

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

COUNT IV
(Lack of Diligence in Hoskin Post-Dissolution Matter)

33. In 2010, Respondent represented Debra Hoskin ("Hoskin") in a post-dissolution matter in In re the Marriage of Shawn Irvine and Debra Irvine, now Hoskin, 95 D 343, Adams County, Illinois.

34. On February 4, 2010, Respondent filed, on behalf of Hoskin, a petition for post-high school educational expenses in case no. 95 D 343.

35. On July 8, 2010, Hoskin's ex-husband, Shawn Irvine ("Irvine"), through his attorney, Holly Henze ("Henze") served Respondent with interrogatories and a request for production.

36. At no time did Respondent answer or file a response to the interrogatories or the request for production.

37. At no time did Respondent forward the interrogatories or the request for production to Hoskin, nor did he request that she review or answer the documents.

38. On January 13, 2011, the Court in case no. 95 D 343, granted Respondent leave to file responses to the interrogatories and request for production within 14 business days.

39. At no time did Respondent comply with the court's order of January 13, 2011, in case no. 95 D 343.

40. On March 10, 2011, the Court in case no. 95 D 343, entered an order sanctioning Respondent for failing to answer or respond to the interrogatories and request for production. The Court further ordered Respondent to answer and respond to the interrogatories and request for production within 21 days.

41. At no time did Respondent inform Hoskin about the March 10, 2011 order, nor did he comply with the Court's order to answer and respond to the documents in case no. 95 D 343.

42. On May 9, 2011, Henze filed a motion in limine seeking to bar Hoskin from presenting any evidence or documents as a result of the failure to respond or answer the interrogatories and request for production.

43. In or around May, 2011, Hoskin learned of the orders in case no. 95 D 343 and retained new counsel to represent her in the case.

44. By reason of the conduct described above, Respondent had engaged in the following misconduct:

  1. failure to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (2010);

  2. failure to reasonably consult with the client about the means by which the client's objectives are to be accomplished, in violation of Rule 1.4(a)(2) of the Illinois Rules of Professional Conduct (2010);

  3. failure to keep the client reasonably informed about the status of the matters, in violation of Rule 1.4(a)(3); and

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

WHEREFORE, the Administrator respectfully requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held pursuant to Supreme Court Rule 753(b), and the Panel make findings of fact, conclusions of fact and law, and a recommendation of such discipline as is warranted.

Emily A. Adams
Peter L. Rotskoff
Counsel for Administrator
One North Old Capitol Plaza, Ste. 333
Springfield, Illinois 62701
Telephone: (217) 522-6838
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Peter L. Rotskoff