BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
FRANK JOSEPH EDELEN,
Commission No. 2015PR00026
FILED --- April 22, 2015
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Meriel Coleman, pursuant to Supreme Court Rule 753(b), complains of Respondent Frank Joseph Edelen who was licensed to practice law in Illinois on November 4, 1993, and alleges that Respondent has engaged in the following conduct which subjects Respondent to discipline pursuant to Supreme Court Rule 770:
(Improper commingling his personal funds in his IOLTA)
1. As of March 2012, Respondent was representing Lawrence J. Konieczka, as Independent Executor of the Estate of Evelyn Konieczka, relating to a claim against the Estate of Lilian Tylinski. Respondent and Konieczka agreed that Respondent would receive 25% of any sums obtained or received from the probate proceedings of the Estate of Lilian Tylinski.
2. On or around April 5, 2012, Respondent received, on behalf of the Estate of Evelyn Konieczka, Merrill Lynch check number 00840-18877 for the amount $180,384.18, which represented the settlement that the Estate of Evelyn Konieczka received from the Estate of Lilian Tylinski.
3. On April 5, 2012, Respondent caused check number 00840-18877 to be deposited in his IOLTA at PNC Bank account ending in the four digits 7465, which was entitled "Frank Edelen Attorney at Law IOLA Client TRT Fund".
4. Between April 11, 2012 and April 26, 2012, Respondent made disbursements totaling $135,288.13 to various beneficiaries of the Estate of Evelyn Konieczka.
5. Pursuant to the terms of the retainer agreement with Konieczka, Respondent was entitled to the remaining balance of $45,096.04 as his fees from the settlement proceeds. Respondent failed to withdrew those fees in a timely manner from account ending in the four digits 7465, instead allowing the funds to remain on deposit in account ending in the four digits 7465.
6. Between April 5, 2012 and October 31, 2013, Respondent made incremental disbursements to himself totaling at least $45,096.04, the fee due him from the settlement on behalf of the Estate of Konieczka. Those disbursements represented Respondent's fees from the Estate of Evelyn Konieczka.
7. By reason of the conduct described above, Respondent has engaged in the following misconduct:
allowing his own funds, fees related to the representation of the Koniecka estate, to remain on deposit in his IOLTA account in excess of what would be necessary to pay bank service charges and therefore, commingling, in violation of Rule 1.15(b) of the Illinois Rules of Professional Conduct
(Failure to respond to lawful demands for information from the ARDC)
8. On November 8, 2013, the Administrator received a notice of overdraft from PNC Bank reflecting that the IOLTA held by Respondent that ended with the four digits 7465 was overdrawn on October 31, 2013. The notice reflected that check number 1492 in the amount of $500, which the bank paid, overdrew Respondent's IOLTA, which had a balance of $23.48 at the time.
9. On November 8, 2013, the Administrator docketed investigation number 2013IN05182 in relation to the overdraft referred to in paragraph one, above, and counsel for the Administrator sent a letter to Respondent requesting that he explain in a letter the facts and circumstances surrounding the overdraft.
10. On December 30, 2013, the Administrator received a letter from Respondent in response to the Administrator's November 13, 2013 request for information. In his response, Respondent claimed to have mistakenly believed that he had $1,000 in earned fees in his IOLTA when he wrote the check and realized that he did not have the fees when he received notice that there were insufficient funds in his account. Respondent also stated that there were no client funds in his account.
11. Between December 31, 2013 and January 23, 2014, the Administrator sent Respondent letters requesting that he send a letter explaining his practice with respect to recording debits on client subaccount and his plans with respect to recording debits in the future. Respondent was also asked to provide copies of fee agreements invoices, billing records, and other documents related to his fee for the Konieczka probate matter.
12. Between February 13, 2015 and April 2, 2014, the Administrator sent Respondent three letters requesting additional information in case number 2013IN05182. Specifically, the Administrator requested that by letter Respondent provide dates and amounts of any and all sums that he received on behalf of the Konieczka estate; copies of any and all records reflecting or relating to his receipt and disbursement of the Konieczka estate funds, including checks received, deposit receipts, settlement distribution statement, checks distributed to individuals or entities other than himself, and monthly statements reflecting activity in the accounts into which Respondent deposited the funds from the date of the first deposit until all of the funds were disbursed. Respondent was also asked if he did not promptly withdraw all of his earned fees on the Konieckz matter from his trust account to explain why.
13. On May 13, 2014, the Administrator issued a subpoena duces tecum, requiring Respondent to appear for his sworn statement on May 27, 2014, and to produce all records related to his account ending in 7465 on or before that date. The Administrator included a letter with the subpoena advising Respondent that if Respondent submitted a satisfactory to the letters that sent between February 13, 2014 and March 23, 2014 by May 23, 2014, Respondent's personal appearance might be waived. On May 21, 2014, Respondent was served with that subpoena via certified mail.
14. At no time did Respondent submit information responsive to the Administrator's letters issued between February 13, 2014 and March 23, 2014. Respondent did not appear for his May 27, 2014 sworn statement. At no time was his appearance excused.
15. On October 15, 2014, the Administrator issued a subpoena duces tecum, requiring Respondent to appear for his sworn statement on November 20, 2014, and to produce certain information relating to his representation of the Estate of Evelyn Koniecka. On November 4, 2014, Respondent was personally served with that subpoena.
16. On November 20, 2014, Respondent contacted counsel for the Administrator by telephone and stated that he would be unable to appear for the scheduled sworn statement. At that time, counsel for the Administrator reminded Respondent that the subpoena was issued due to his repeated failure to respond to request for information by the Administrator. Counsel for the Administrator agreed to excuse Respondent's appearance, but told him that he must provide the information previously requested information about the Koniecka estate.
17. Between November 25, 2014 and February 17, 2015, the Administrator sent Respondent two letters in a continued effort to obtain information from Respondent related to his representation of the Koniezka estate and decision to leave his own funds on deposit in his IOLTA. At no time has Respondent responded to the letters.
18. By reason of the conduct described above, Respondent has engaged in the following misconduct:
knowingly failing to respond to a lawful demand for information from a disciplinary authority, by failing to respond to letters, failing to appear on May in violation of Rule 8.1(b) of the Illinois Rules of Professional Conduct; and
engaging in conduct that is prejudicial to the administration of justice, by failing to respond to the Administrator's requests for information by not responding to letters and failing to appear pursuant to subpoena for the May 27, 2014 sworn statement, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct
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.
Jerome Larkin, Administrator