BEFORE THE HEARING BOARD

OF THE

ILLINOIS ATTORNEY REGISTRATION

AND

DISCIPLINARY COMMISSION

In the Matter of:

MAURICE W. BIRT III,

Attorney-Respondent,

No. 6269423.

Commission No. 2013PR00053

FILED --- February 3, 2014

SECOND AMENDED COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Robert J. Verrando, pursuant to Supreme Court Rule 753(b), complains of Respondent, Maurice W. Birt III, who was licensed to practice law in the State of Illinois on November 4, 1999, and alleges that Respondent has engaged in the following conduct which subjects Respondent to discipline pursuant to Supreme Court Rule 770:

(Commingling and Theft of $80,000 from an elderly client)

1. In November 2011, Maria Ziolkowski ("Ziolkowski"), who was at that time 93 years old, decided to enter an extended care facility. In connection with that decision, Ziolkowski retained attorney Maria Kaczmarczyk ("Kaczmarczyk ") to advise her with regard to her estate plan.

2. In November 2011, Respondent agreed to assist Kaczmarczyk in her representation of Ziolkowski by providing advice regarding Ziolkowski's estate plan to Kaczmarczyk.

3. In November 2011, Respondent agreed to assist Kaczmarczyk in her representation of Ziolkowski by holding funds for Ziolkowski for the purpose of allowing Ziolkowski to have accessible funds to pay her daily living expenses over the next several years.

4. In November 2011, pursuant to the agreements described in paragraphs two and three, above, Kaczmarczyk instructed Ziolkowski to issue a check in the amount $80,000, and to have that check made payable to the order of "Brady & Birt, LLC, Lawyers Trust Fund."

5. On November 29, 2011, Ziolkowski purchased Liberty Bank cashier's check number 30194442, which she made payable to "Brady & Birt, LLC, Lawyers Trust Fund" in the amount of $80,000, and delivered the check to Kaczmarczyk, who delivered it to Respondent. Respondent received the check shortly after it was sent.

6. At no time did Ziolkowski or Kaczmarczyk authorize Respondent to use any of the funds represented by Liberty Bank cashier's check number 30194442 for any purpose other than paying Ziolkowski's own expenses.

7. On December 1, 2011, Respondent used Ziolkowski's $80,000 cashier's check to open a business checking account with JPMorgan Chase Bank, for which he obtained checks and a debit card with access to the account. The bank assigned the account a number ending in 9060. The account was entitled, "Law Offices of Brady & Brit (sic), LLC," and was not a separate and identifiable client funds account.

8. Between December 2011 and March 30, 2012, Respondent drew $79,963 from the Ziolkowski account, by electronic transfer, by issuing checks, and by using the debit card associated with the account, and used the funds for his own purposes, without authority.

9. At no time did Respondent inform Ziolkowski or Kaczmarczyk that he had used Ziolkowski's funds for his own purposes.

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

  1. failing to hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, by conduct including depositing Ziolkowski's funds into a non-segregated business account and using the funds for Respondent's own purposes, without authority, in violation of Rule 1.15(a) of the Illinois Rules of Professional Conduct (2010);

  2. committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, by committing the criminal offense of theft, in violation of 720 ILCS 5/16-1(a)(1)(A) and Rule 8.4(b) of the Illinois Rules of Professional Conduct (2010); and

  3. conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including using Ziolkowski's funds for Respondent's own purposes, without authority, in violation of Rule 8.4(c) 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, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.

Robert J. Verrand
Counsel for the Administrator
130 East Randolph Drive, Suite #1500
Chicago, Illinois 60601
Telephone: (312) 565-2600

Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Robert J. Verrando