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

In the Matter of:

 MERVIN LEE WOLFE,

Attorney-Respondent, 

No. 6257695.

 

Commission No.  2010PR00010

FILED -  February 19, 2010

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission (ARDC), by his attorneys, Denise Church and Peter L. Rotskoff, pursuant to Supreme Court Rule 753(b), complains of Mervin Lee Wolfe, who was licensed to practice law in Illinois on May 6, 1999, 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 of filing fees, lack of diligence, and failure to return
unearned fees - Raymond and Patsy Kinsel
)

1. In 2007, Patsy and Raymond Kinsel ("Raymond", "Patsy", or "Kinsels") through counsel other than Respondent, had filed Cumberland County case numbers 2007 CH 12 and 2007 L 8, both captioned Raymond and Patsy Kinsel v. Norma Ann Daugherty and Norma Fern Kemper. Both cases were based on a property dispute between the Kinsels and their daughter, Norma Jean Daugherty.

2. On or about April 26, 2007, Respondent agreed to represent the Kinsels in case numbers 2007 CH 12, and 2007 L 8. Respondent and the Kinsels did not discuss an hourly rate, and the Kinsels did not sign a contract with Respondent. In August 2007, Respondent agreed to represent the Kinsels in two pending criminal cases in Cumberland County, People v. Patsy Kinsel, case number 2007 CM 104 and People v. Raymond Kinsel, case number 2007 CM 103. In April 2008, Respondent also filed a probate case on Patsy's behalf after Raymond's death, In re the Estate of Raymond Carl Kinsel, Clark County case number 2008 P 21.

3. Between April 26, 2007 and July 30, 2008, the Respondent received a total of $11,000.00 in fees, and $500.00 in costs, for representation in the above cases.

Respondent's representation in Kinsel v. Daughtery, et al., 2007 CH 12 and 2007 L 8

4. On May 15, 2007, Respondent entered his appearance as substitute counsel in case numbers 2007 CH 12 and 2007 L 8.

5. On February 17, 2008, Raymond died.

6. On March 30, 2008, Respondent filed a motion for substitution of judge in case numbers 2007 L 8 and 2007 CH 12. On July 7, 2008, the motion in each case was granted.

7. Respondent conducted no formal discovery, nor set any substantive motions, besides the motion to substitute judge, in either case.

8. On July 13, 2007, Respondent sent documents, including deeds at issue in the case, to Steve Cain ("Cain") of Forensic Tape Expert for purposes of determining whether some of the documents were forged. Raymond paid $2,000.00 directly to Cain for the evaluation.

9. Cain was unable to make any conclusions regarding the signatures.

10. On or about July 30, 2008, Patsy agreed to pay Respondent $500.00 for the costs of deposing Anthony Seimer ("Seimer"), and she agreed to pay an additional $1,000.00 in attorney's fees.

11. On July 30, 3008, Patsy gave Respondent a check in the amount of $1,500.00, of which $500.00 was for deposition costs.

12. Respondent did not deposit the costs of $500.00 into a separate client trust account. In July 2008, Respondent did not have a client trust account.

13. Respondent negotiated the check and kept the entire $1,500.00, including the $500.00 Patsy had given him for deposition costs. Respondent thereafter used the entire $1,500.00 for his own personal or business purposes.

14. At no time did Patsy agree that Respondent could use the $500.00 she had given him for deposition costs for Respondent's own personal or business purposes.

15. Respondent told Patsy he was taking Seimer's deposition at the Cumberland County courthouse on August 20, 2008. Seimer had agreed to a deposition, but was not aware of a specific date for the deposition.

16. On August 18, 2008, Respondent informed Seimer's office that he was cancelling the deposition set for August 20, 2008.

17. On August 20, 2008, Patsy went to the courthouse for Seimer's deposition. Patsy called Respondent, who then informed her that the deposition was cancelled.

18. On September 6, 2008, Patsy discharged Respondent and requested a return of her funds.

Respondent's involvement in the Kinsels' criminal cases

20. On July 13, 2007, the Cumberland County States Attorney's office filed Class A misdemeanor charges of criminal damage to property, less than $300.00, against Patsy and Raymond Kinsel. The cases were docketed as People v. Patsy Kinsel, Cumberland County case number 07 CM 104 and People v. Raymond Kinsel, Cumberland County case number 07 CM 103.

21. On August 14, 2007, Respondent entered his appearance on behalf of Patsy and Raymond in case numbers 07 CM 103 and 104.

22. On August 15, 2007, Respondent issued a subpoena duces tecum in case numbers. 2007 CM 103 and 104 to Toledo Nation [sic] Bank for "copies of all checks from January 2002 to current in regards to checking account held in the name of Norma Kemper."

23. On August 30, 2007, an attorney representing First Neighbor Bank, a bank affiliated with Toledo National Bank, filed and served on Respondent a motion for a protective order regarding the subpoena, requesting an order requiring Respondent to provide costs of duplication before the bank would be required to produce the records.

24. At no time did Respondent request that the court rule on the issue of the subpoena, nor did he offer to prepay the duplication costs for the subpoena compliance.

25. After Raymond died on February 17, 2008, the State filed a motion to nolle prosequi case numbers 07 CM 103 and 07 CM 104. The State's motion was granted on March 6, 2008, and the cases were dismissed.

Respondent's representation in Raymond Kinsel's estate case

26. After Raymond's death on February 17, 2008, Respondent agreed to represent Patsy in a probate case as the executor of Raymond's will.

27. On April 16, 2008, Respondent filed, on Patsy's behalf, a petition for probate of will and for letters testamentary, death certificate, a copy of last will and testament with attestation, affidavit of heirship, and an oath of office without bond. The case was docketed as In re the Estate of Raymond Carl Kinsel, Clark County case number 2008 P 21.

28. On April 16, 2008, the court admitted the will to probate and ordered Respondent to file an inventory.

29. On May 16, 2008, the court ordered Respondent to file the original will and to file a bond (without surety).

30. On May 29, 2008, Respondent filed the original will, and on June 5, 2008, Respondent filed the executor's bond with the court. In May 2008, he initiated notice by for publication of claims in the Casey Reporter.

31. Respondent thereafter took no other action in case number 2008 P 21.

32. At no time did Respondent file the inventory as ordered by the court on April 16, 2008.

33.On September 6, 2008, Patsy discharged Respondent, and requested a return of any funds held by Respondent.

34. On July 23, 2009, attorney Janet Winter-Black entered her appearance on Patsy's behalf in case number 2008 P 21.

Respondent's failure to return fees

35. At no time did Respondent provide sufficient legal services on the Kinsels' behalf in cases involving the property dispute, the criminal cases or the probate case described above, by which Respondent earned legal fees in the amount of $11,000.00.

36. At no time did Respondent return any unearned legal fees to Patsy.

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

  1. conversion of filing fees of $500.00;

  2. failure to act with reasonable diligence and promptness in cases 2007 CH 12 and 2007 L 8 (land dispute cases), and 2008 P 21 (probate case), while representing a client, in violation of Rule 1.3 of the Illinois Rules of Professional Conduct (1990);

  3. failure to promptly refund any part of a fee paid in advance that has not been earned, in violation of Rule 1.16(e) of the Illinois Rules of Professional Conduct (1990); and

  4. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

COUNT II
(Release of confidential client information - Catherine Sponsel)

37. On or about November 2005, Respondent agreed to represent Catherine Sponsel ("Sponsel") in a dissolution of marriage proceeding against Robert Sponsel ("Robert"). Respondent agreed to represent Sponsel for a fixed fee in the amount of either $1,200.00 or $1,500.00. Sponsel paid Respondent the requested fee.

38. On November 18, 2005, Respondent filed a petition to dissolve the Sponsels' marriage case on Sponsel's behalf to initiate the case entitled In re the Marriage of Catherine Marie Sponsel v. Robert James Sponsel, Cumberland County case number 2005 D 67.

39. On November 18, 2005, Robert was served with the petition for dissolution of marriage.

40. On December 12, 2005, Robert filed a counter-petition for dissolution of marriage.

41. Robert was represented in the dissolution of marriage case by Priscilla Ebdon.

42. From 2005 until March 2007, Sponsel asked Respondent to complete the case on several occasions. At no time did Respondent bring the case for hearing on any matters.

43. On or about March 2007, Sponsel informed Respondent that she was discharging him as her attorney, and that she was hiring John Cutright ("Cutright") to handle her case.

44. On March 27, 2007, Respondent withdrew from case number 2005 D 67, and Cutright entered his appearance for Sponsel.

45. After Sponsel discharged Respondent and hired Cutright, Respondent became angry with her, and sent her a bill for additional fees, which Sponsel refused to pay.

46. In the fall of 2008, Respondent was a candidate for the office of Cumberland County State's Attorney. During his campaign, had a web site at www.mervinlwolfe.com.

47. On October 27, 2008, the local newspaper, the Toledo Democrat, published a letter from Respondent's former employee, Marilyn Henderson ("Henderson"). Henderson's letter was critical of Respondent and his candidacy for the position of State's Attorney. Respondent was aware of the letter. Respondent was aware that Henderson and Sponsel were friends, and that Sponsel had cared for Henderson's disabled son.

48. In November 2008 Respondent posted, or caused to be posted, on his web site www.mervinlwolfe.com, confidential information from Sponsel he had received while he was her attorney, including her home address and social security number.

49. Respondent also posted, or caused to be posted, confidential information regarding Sponsel's compensation for caring for Henderson's disabled child. Respondent also posted, or caused to be posted, confidential information from Henderson, including Henderson's social security number, address, a letter from the Illinois Department of Human Services regarding a fraud investigation pertaining to Henderson, information from Casey State Bank regarding an alleged forgery by Henderson, a decision from the State of Illinois Department of Employment Security regarding Henderson.

50. At no time did Sponsel give Respondent permission to post her confidential information on the internet.

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

  1. using or revealing a confidence or secret of the client known to the lawyer, in violation of Rule 1.6(a) of the Illinois Rules of Professional Conduct (1990); and

  2. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

COUNT III
(Conflict of interest - Christine Swim)

52. In 1990, Christina Eggers, n/k/a Christina Swim ("Swim"), filed a dissolution of marriage case against Aaron Eggers ("Eggers") in Cumberland County. The case was docketed as In re the Marriage of Christina Eggers and Aaron Eggers, case number 1990 D 81.

53. After the parties divorced, there were several post-judgment petitions filed.

54. In March 2002, Swim received a letter from Eggers' lawyer regarding custody of the couple's daughter. Swim called her friend Julie Wolfe, n/k/a Julie Figgins ("Julie") about the letter. Julie was married to Respondent at the time, and also worked as Respondent's secretary and office manager.

55. In April 2002, Swim met with Julie and Respondent at their home. Respondent, Julie and Swim discussed Swim's custody case for approximately 30 to 60 minutes. Swim told Respondent confidential information about her financial situation, and about her and Egger's care of the minor child.

56. During the meeting, Respondent provided Swim with a photocopy of a statute regarding child support, and instructed her regarding how to draft and file a motion in the case.

57. Respondent and Swim discussed whether Respondent would represent Swim in post-decree matters relating to case number 1990 D 81. Swim told Respondent she could not afford to hire him, and Respondent said he would not charge her. Swim and Respondent did not finalize any agreement about representation, but Respondent told her he would attend the next court hearing in the case.

58. In April 2002, Respondent and Swim had entered into a confidential attorney-client relationship.

59. As a result of his attorney-client relationship with Swim, Respondent owed a fiduciary duty to her to act with the highest degree of honesty, fidelity, loyalty and good faith, and was prohibited from placing the interests of another client, a third party, or himself above Swim's interests.

60. Respondent thereafter did not attend the next court hearing in the matter or enter his appearance.

61. On October 2, 2007, Respondent entered his appearance on behalf of Eggers in case no. 1990 D 81.

62. On October 30, 2007, Swim, through counsel John Cutright, filed a motion to disqualify Respondent, based on an allegation of conflict of interest.

63. On January 28, 2008, Respondent filed his response to the motion to disqualify.

On July 16, 2008, Eggers appeared in case no. 1990 D 81 and told the court he would be appearing pro se and that he was discharging Respondent as his counsel.

64. On July 29, 2008, Respondent filed a motion to withdraw from case no. 1990 D 81. The court granted Respondent's motion on September 2, 2008.

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

  1. representing another person in the same matter as a former client without the former client's consent, in violation of Rule 1.9(a)(1) of the Illinois Rules of Professional Conduct (1990); and

  2. conduct which tends to defeat the administration of justice or bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

COUNT IV
(Failure to cooperate with the Administrator)

67. The Administrator opened the following investigations concerning Respondent:

DATE OPENED

FILE NUMBER

RELATING TO

November 3, 2008

08-SI-04991

Catherine Sponsel

November 20, 2008

08-SI-05251

Marilyn Henderson

September 16, 2008

08-SI-04165

Patsy Kinsel

September 14, 2009

09-SI-04018

Christina Swim

68. On February 17, 2009, one of the Administrator's counsel sent Respondent's attorney, Frederick Roth ("Roth") a subpoena duces tecum requiring Respondent to appear for a sworn statement on February 20, 2009 in case numbers 08 SI 04991, 08 SI 5251 and 08 SI 4165.

69. The statement scheduled for February 20, 2009 was continued by agreement. On June 18, 2009, Respondent's attorney sent the Administrator's counsel a letter by facsimile stating Respondent could appear July 15 or July 16, 2009.

70. On June 22, 2009, the Administrator's counsel sent Roth a fax setting the sworn statement for July 15, 2009 at 1:30 p.m.

71. On July 14, 2009, Respondent's attorney sent the Administrator's counsel a letter by facsimile stating Respondent had filed suit against Administrator's counsel, Denise Church ("Church") and Peter Rotskoff ("Rotskoff") and stated Respondent would not appear on July 15, 2009 for the sworn statement, due to a "conflict of interest."

72. On July 14, 2009, the Administrator's counsel sent Roth a letter stating the statement would proceed.

73. Respondent did not appear for the sworn statement on July 15, 2009.

74. On July 20, 2009, Respondent was personally served by the Cumberland County Sheriff with a subpoena duces tecum, requiring Respondent to appear for a sworn statement before the Administrator, on August 4, 2009.

75. On July 22, 2009, Roth sent Administrator's counsel a letter saying he could not attend the August 4, 2009 statement, and requested a rescheduling of the statement. The Administrator's counsel agreed to reschedule.

76. On July 30, 2009, Roth sent the Administrator's counsel a letter stating August 28, 2009 was an acceptable date for the statement.

77. On August 27, 2009, Roth sent the Administrator's counsel a letter stating he had to go to court on August 28, 2009, and asked to reschedule the statement.

78. On August 27, 2009, the Administrator's counsel sent Roth a letter by facsimile stating she had spoken to Roth's opposing counsel, Devin Maddox, who stated Roth did not need to appear for the hearing. Roth sent the Administrator's counsel a letter by facsimile stating he would not be appearing for Respondent's statement.

79. Respondent did not appear for a sworn statement on August 28, 2009.

80. On September 14, 2009, the Administrator received a request for investigation regarding the Swim matter referenced in Count III, above. The investigation was docketed as 09 SI 4018.

81. On September 15, 2009, the Administrator sent Respondent a letter requesting a response to the request for investigation in case number 09 SI 4018.

82. On October 8, 2009, the Administrator sent Respondent a second letter requesting a response to the request for investigation in case number 09 SI 4018.

83. At no time prior to the date this complaint was voted by the Inquiry Board, on February 2, 2010, has Respondent sent a written response to the request for investigation in case number 09 SI 4018.

84. On October 27, 2009, Roth sent the Administrator's counsel a letter suggesting November 20, 2009 as a date for the rescheduled sworn statement. On October 27, 2009, the Administrator's counsel sent Roth a letter by facsimile agreeing to take the sworn statement in all of the files referenced in Paragraph 67, above, on November 20, 2009.

85. On November 19, 2009, Respondent's counsel sent the Administrator's counsel a letter stating Respondent would not appear for the sworn statement because there was a stay of discovery in Respondent's federal case against Church and Rotskoff, Wolfe v. Schaefer, et. al., 09 CV 3181.

86. On November 19, 2009, the Administrator's counsel sent Roth a letter by facsimile stating that a stay of discovery in the federal case did not constitute a stay of discovery in the investigations.

87. On November 19, 2009, Respondent did not appear for the sworn statement.

88. 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(a)(2) of the Illinois Rules of Professional Conduct (1990);

  2. conduct prejudicial to the administration of justice in violation of Rule 8.4 (a)(5) 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.

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
Peter L. Rotskoff
Attorney Registration and
Disciplinary Commission
One North Old Capitol Plaza, #333
Springfield, Illinois 62701
Telephone: (217) 522-6838
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:   Counsel for the Administrator