Filed April 6, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
G. RONALD KESINGER,
Commission No. 2011PR00025
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on October 6, 2011, at the offices of the Attorney Registration and Disciplinary Commission, Springfield, Illinois before a Hearing Board Panel consisting of Leo H. Konzen, Chair, George E. Marron, III, and Sandra Douglas. The Administrator was represented by Gary S. Rapaport. The Respondent appeared pro se.
On April 14, 2011, the Administrator filed a two-count Complaint against the Respondent. Count I charged that the Respondent failed to provide competent representation to Juvon F. Mays who was charged with first degree murder in the Circuit Court of Champaign County. Count I also charged that the Respondent revealed to an assistant state's attorney, and others, a statement made by Mays in confidence, without Mays' consent. Count II charged that the Respondent agreed to represent Lance C. Bufford, who was charged with unlawful possession with intent to deliver an amount of cocaine, for $5,000. Bufford posted bond in the amount of $10,000, and the Respondent agreed to refund the amount of the bond in excess of his $5,000 fee. Shortly before trial, the Respondent requested that Bufford pay him the entire
amount of the bond before he proceeded to trial, and Bufford refused. On the day of trial, the Respondent filed a motion to withdraw, which falsely stated that there was "irreconcilable differences in strategy in that Defendant desires to proceed at trial in a manner that would cause his attorney to violate Supreme Court Rules of Professional Conduct." The motion was allowed. Subsequently, a bond refund check in the amount of $9,000 was sent to the Respondent. The Respondent negotiated the check and used the entire $9,000 for his own purposes. Based upon the above factual allegations, Count II charged that the Respondent attempted to over-reach, breached his fiduciary duty, engaged in dishonesty, and committed conversion.
The Administrator presented the testimony of Juvon Mays, Lance Bufford, Doris Drew, and the Respondent as an adverse witness. The Administrator's Exhibits 1 through 22 were admitted into evidence. (Tr. 6). The Respondent testified in his own behalf and presented the testimony of Sharika Johnson, Amber Gray, and Michael Costello. The Respondent's Exhibits 1 through 26 were admitted into evidence. (Tr. 6, 209).
Mr. Mays testified that he is a resident of the Illinois Department of Corrections, serving a 60-year sentence for the first degree murder of Corinthian Spinks. He was represented by the Respondent at his jury trial, which took place in Champaign County in 2009. He appealed from his conviction and sentence. (Tr. 41-42).
Prior to his trial, Mays only made statements about the shooting of Spinks to the Respondent. (Tr. 43). Mays initially told the Respondent that somebody broke into his apartment and stole some things, including two camouflage jackets; that somebody other than him could have been wearing one of the camouflage jackets, which was observed at the scene of
the Spinks shooting; and that Mays did not go to Spinks' apartment or shoot Spinks. (Tr. 57-58). Mays "stuck with that story" until the Wednesday before his trial, which was to start on Monday, August 31, 2009. (Tr. 58).
When Mays and the Respondent met at the jail on the Wednesday before the trial, the Respondent "went over the evidence" against Mays. (Tr. 59). Mays acknowledged the Respondent told him that three people were going to testify they saw Mays come out of Spinks' apartment right after the shot was fired; that gun powder was found on a camouflage jacket which contained personal papers of Mays; that a video showed Mays wearing a camouflage jackets at a store the night before the shooting; and that a partial shoe print found in Spinks' apartment matched shoes found at Mays' residence in Tennessee. (Tr. 59-61). The Respondent also told Mays that, based upon the evidence, Mays was "sure to be found guilty," and asked Mays to tell him the "real truth." (Tr. 62-63).
In response to the Respondent's request, Mays then told a different story. Mays said he believed his conversation with the Respondent was confidential and privileged. (Tr. 43-44, 63). Mays told the Respondent that Mays' cousin, Brian Shaw, learned that Spinks had broken into Mays' apartment and had taken some property, including some Christmas presents. Mays and Shaw then went to Spinks' apartment to "confront [Spinks] to try to get [Mays'] Christmas presents and stuff back." (Tr. 63-64). Shaw had a gun when they went to Spinks' apartment. When they arrived, Spinks "opened the door slightly," Shaw "put his foot by the door," and a "struggle ensued." Mays was also "pushing the door trying to help [his] cousin." When Spinks pushed the door against Shaw's gun, the gun fired, and a bullet hit Spinks in the chest. (Tr. 63-66, 74, 79).
After hearing the foregoing version, the Respondent told Mays about the possibility of a conviction for a lesser included offense, such as reckless homicide or involuntary manslaughter. The sentences for the lesser included offenses were far less than the sentence for first degree murder. (Tr. 45, 66, 79). However, Mays testified the Respondent did not mention that Mays could be guilty of felony murder by accountability even if Shaw was the shooter. (Tr. 48). Mays said he recalled the Respondent mentioning felony murder, but not accountability. Mays also said he did not know "what legal accountability was" or "what felony murder was." (Tr. 48-49, 72-73).
Also at the meeting between Mays and the Respondent on the Wednesday before trial, the Respondent said they should try to get a plea agreement with the state's attorney for a lesser included offense. The Respondent then asked Mays if he could inform the state's attorney about what Mays had just told him about the shooting. According to Mays, Mays told the Respondent "no." (Tr. 45-46, 67). Mays said he never gave the Respondent permission to tell anybody about his statement regarding the shooting of Spinks. (Tr. 47-48).
Mays was initially charged with first degree murder based upon Mays personally shooting Spinks. On the day the trial was scheduled to start, the assistant state's attorney presented new charges of felony murder and home invasion, and the court allowed them to be filed. (Tr. 49). Mays was present in court while there was a discussion about felony murder, but he said he "didn't understand it." (Tr. 50). Between the time the new charges were filed and the start of trial on the following day, the Respondent told Mays that he "had to testify because there wasn't nobody else there to say what happened." (Tr. 53-54).
Mays said he testified at his trial because the Respondent told him to do so. He acknowledged that the judge informed him that he did not have to testify. (Tr. 54-55). Mays
also said that he did not intend to concede he was guilty of felony murder and did not understand that his testimony conceded his guilt for that offense. (Tr. 56).
Ms. Gray testified that she is an Assistant Defender with the Office of the State Appellate Defender. She is handling the direct appeal for Mays from his murder conviction and prepared a brief and a reply brief. (Resp. Exs. 6 and 7). The arguments on appeal included the contentions that Mays' right to a speedy trial was violated by the filing of the new charges on the day of trial and that the Respondent provided ineffective assistance of counsel. (Tr. 154-56).
Mr. Bufford testified that he is employed at Rantoul Foods. He is serving a 3-month period of parole, following an 8-month term in the Illinois Department of Corrections for driving while his license was revoked. He was previously convicted twice for driving while his license was revoked, and twice for possession of a controlled substance. (Tr. 83-85).
On January 29, 2008, Bufford, Mario Turner and Courtney Phillips were at the house of Howard Baker. Bufford went there after he left his place of work. The police executed a search warrant at Baker's house, seized about 166 grams of cocaine, and arrested the foregoing individuals. Some of the cocaine was found in a jacket hanging on a chair. The wallet of Bufford was in a pocket of that jacket. Bufford was charged with possession with intent to deliver cocaine. Bufford, with the help of his fianc?e and a friend, was able to post bond in the amount of $10,000. Bufford, Turner and Phillips were initially represented by a public defender. They then hired the Respondent in February 2008. The charges against Turner and Phillips were dismissed about six months later (Tr. 86-88, 106-11).
The Respondent agreed to represent Bufford in the criminal case for a "flat fee" of $5,000, and Bufford assigned his bond refund to the Respondent. (Adm. Ex. 13 at 15). At Bufford's request, the Respondent sent Bufford a letter reflecting the fee arrangement. (Adm. Ex. 15). In the letter, the Respondent said "I will refund to you any amounts left over after deducting the sum of $5,000" from the bond refund. (Tr. 88-90, 126-27). Bufford noted that the Respondent did not say anything about an "hourly rate." (Tr. 92).
On February 23, 2009, the day on which his trial was scheduled to start, Bufford met with the Respondent. At their meeting, the Respondent complained about the time he was spending on Bufford's case, showed Bufford a document listing the hours Respondent had purportedly spent on the case (Adm. Ex. 18 at 2), and asked Bufford to sign over the entire bond refund to the Respondent for additional fees (Resp. Ex. 19). Bufford refused to do so, and never gave the Respondent permission to keep the full amount of the bond refund. (Tr. 91-95, 111, 113-14, 129). Bufford said that the Respondent did not advise Bufford to get advice from another attorney regarding the Respondent's request for additional fees. (Tr. 193). After Bufford refused the Respondent's request for additional fees, the Respondent said he was going to tell the judge that he and Bufford had a conflict of interest and withdraw from the case. (Tr. 92-93, 120, 122).
Bufford acknowledged that he provided the Respondent with the names of three women who worked with Bufford as possible witnesses. One of them was Sharika Johnson. Bufford said he wanted them to testify about what he wore to work on the day of his arrest, January 29, 2009. The purpose of their testimony would be to show that he was not wearing the jacket in which the police found cocaine. (Tr. 114-18: Resp. Exs. 14, 15, 16). Bufford denied asking any of the
potential witnesses to lie for him. He also denied asking the Respondent to have witnesses lie under oath. (Tr. 96-97).
Bufford said the Respondent did not tell him at their meeting on February 23, 2009, that Sharika Johnson indicated she would testify the way Bufford wanted, but that "it wasn't true." (Tr. 117-18, 119). Bufford also said that the Respondent did not say he was going to withdraw if Bufford insisted on "calling these ladies as witnesses." (Tr. 120-21).
When the Respondent and Bufford appeared in court on February 23, 2009, the Respondent presented his motion to withdraw as Bufford's attorney. (Resp. Ex. 17). Bufford did not know what was in the motion, but thought "the motion was saying that simply [Respondent] didn't want to represent me in court anymore." The judge asked Bufford if he consented to the motion, and Bufford replied that he did. (Tr. 122-24). The Respondent was allowed to withdraw, and Bufford was given 21 days to obtain new counsel. Subsequently, attorney Leroy Cross represented Bufford for a fee of $10,000. The charges against Bufford were dismissed in January 2010. (Tr. 99-1000, 125).
After his case was dismissed, Bufford expected to receive $4,000 of the bond refund. He learned that the entire amount of the bond refund, $9,000, had been sent to the Respondent. (Adm. Ex. 17). He then telephoned the Respondent and asked about the bond refund. According to Bufford, the Respondent said "I told you that I wasn't giving you the rest of the money back or . . . something like that," and for Bufford "to take him to court." (Tr. 100-102, 125-26). The Respondent sent a letter to Bufford in February 2010, setting out the time he purportedly spent on Bufford's case. (Adm. Ex. 18). Bufford said he "didn't so much care about the letter because we had an agreement about the $5,000 [fee]." (Tr. 103-104, 126-28).
Bufford filed a complaint against the Respondent with the ARDC. Subsequently, in March 2011, the Respondent paid $4,000 to Bufford. (Tr. 128; Resp. Ex. 24).
Ms. Drew testified that she is the fianc?e of Lance Bufford. They have five children. She is a nurse, and is employed at the Champaign Urbana Regional Rehabilitation Center. (Tr. 131-32).
After Bufford was arrested on January 29, 2008, she assisted him in posting bond in the amount of $10,000. Drew used some tax refund money to post $6,000, and another person provided $4,000. (Tr. 132-33; Adm. Ex. 13 at 12).
Bufford asked Drew to be a witness for him at his trial, which was set for February 23, 2009. She said she was going to testify "as to his living arrangements, where he was living at the time of his arrest." Bufford did not ask her to lie for him. (Tr. 133-34). She and the Respondent did not talk about her testimony. (Tr. 137).
In February 2010, after Bufford's case was dismissed, she went to the circuit clerk's office and inquired about Bufford's bond refund. She was told that the refund check had been sent to the Respondent. She had a telephone conversation with the Respondent, during which he told her "he wasn't going to return any of the bond." He did not tell why, and he "got off the phone rather quick." (Tr. 134-35). During another telephone conversation, she reminded the Respondent of his letter (Adm. Ex. 15) in which he agreed to return the amount of the refund above his fee. The Respondent told her he would look into it and get back to her. (Tr. 135-36, 138).
Drew also testified that, at the time she requested the bond refund from the Respondent, she and Bufford were in need of the money. (Tr. 136).
Ms. Johnson testified that she was acquainted with Lance Bufford. In 2008, the Respondent telephoned her and said that Bufford had listed her as a witness for his upcoming trial, and that she was going to testify "about what [Bufford] was wearing or wasn't wearing" on the day of the pertinent incident. She said she told the Respondent that she "didn't know nothing about it" and couldn't testify about what Bufford was wearing on that day. She also said she did not remember telling the Respondent that she "would testify, but it was not true." (Tr. 149-52).
The Respondent testified that he is 72 years of age. He was licensed to practice law in Illinois on August 17, 1973. He has been a sole practitioner in Jacksonville since 1973. He was a public defender in Morgan County during the first ten years of his practice. Since then, he has maintained a general practice, with about one-third involving criminal law matters. He said he practices "all over central Illinois," has handled 13 murder cases, and has had a "lot of experience" in drug related cases. (Tr. 159-62, 169).
Juvon Mays was charged with first degree murder in Champaign County for personally shooting and killing Corinthian Spinks on December 20, 2008. The Respondent began representing Mays about a month later. Mays told the Respondent that someone broke into Mays' apartment and stole various items, including Christmas presents he had for his child. Mays also said "whoever took his things went and killed . . . Mr. Spinks to make [Mays] look bad." The Respondent told Mays that his story did not make sense, and described the evidence that the State had against Mays. For example, the Respondent mentioned that a ski mask or hat with Mays' DNA was found near the scene of the shooting; a camouflage jacket with Mays'
personal papers in a pocket and containing gunshot powder was found near the shooting; Mays' shoeprint was found in Spinks' apartment; and three witnesses identified Mays as the person leaving Spinks' apartment right after the shooting. The Respondent said that Mays "stuck to that story for at least six months." (Tr. 171-74).
Mays' trial was scheduled to start on Monday, August 31, 2009. On Wednesday, August 26, 2009, the Respondent met with Mays. At that time, Mays said he would reveal the "real story." Mays then said that he and his cousin learned that Spinks was the person who broke into Mays' apartment and stole his property. They decided to confront Spinks and try to get Mays' property back. The Respondent quoted Mays that both of them were carrying a gun when they went to Spinks' apartment. When Spinks opened his apartment door and saw them, he tried to shut the door. However, the cousin put his foot in the door. Mays "assisted [his cousin] by trying to get his hand in the door too." There was a struggle, the cousin's gun "went off," and Spinks was shot." Mays and his cousin went into the apartment, and then ran out in different directions. A neighbor saw Mays leaving the apartment. (Tr. 174-76).
The Respondent said he was "excited" by Mays' new story because there was a possibility of a jury finding Mays guilty of a lesser included offense, such as involuntary manslaughter or reckless homicide. The Respondent said he explained the foregoing to Mays and talked with him about being an "accomplice." The Respondent said he also suggested to Mays that it might be possible to "get the state's attorney to agree to a lesser included offense and I would try that." (Tr. 176-77). The Respondent acknowledged that he did not consider that Mays' story involving his cousin established his guilt of felony murder. He noted that Mays had not been charged with felony murder. (Tr. 139).
On Thursday, August 27, 2009, the Respondent faxed a letter to assistant state's attorney Duke Harris. (Adm. Ex 3). His letter set out "what I expected the evidence to be and suggested it was accidental and that a lesser included offense would more appropriately fit." (Tr. 178). The Respondent explained that his letter "was simply an attempt to get a plea agreement" and to let the state's attorney know what testimony "my client would have to offer." (Tr. 140). He did not see that the letter "could be an admission to the crimes of home invasion or felony murder." (Tr. 140-41). The Respondent thought "felony murder was a new law, that is, "about ten years old." (Tr. 141-42).
The Respondent testified that "I did not specifically say [to Mays] I'm going to talk to the state's attorney and tell him about this, but it was implied all over the place." (Tr. 177). He acknowledged that "I did not specifically ask Mr. Mays if I could tell the defense he told me to any other person." (Tr. 184). The Respondent also acknowledged that "I did not get written permission [or] verbal permission" from Mays to disclose the statements Mays made to the Respondent. (Tr. 184-85). The Respondent contradicted Mays' testimony that Mays told the Respondent not to disclose his statements to the state's attorney or to anyone else. (Tr. 206-207).
On Friday, August 28, 2009, the Respondent received an e-mail from assistant state's attorney Harris, stating that Harris was going to file felony murder charges against Mays. (Tr. 179). On the morning of Monday, August 31, 2009, the state's attorney moved to file the additional charges of home invasion and felony murder against Mays. The Respondent objected (Resp. Ex. 10), and the judge allowed the charges to be filed. (Adm. Ex. 1 at 4). The judge also denied the Respondent's request for a continuance. (Tr. 179). Because the trial commenced at 1:30 that afternoon, the Respondent spoke only briefly with Mays about the new charges. (Tr. 180, 200). After the jury was selected, the Respondent discussed the case further with Mays.
The Respondent told Mays the evidence showed that Mays was the "one who had the gun;" that he (Respondent) did not believe Mays' story about the cousin's gun going off; and that the Respondent "cannot recommend or allow you to testify." (Tr. 181). Mays then asked how he could get his story to the jury. The Respondent explained to Mays that he was "going to have to call yourself as a witness and then I explained the process for that." (Tr. 181).
The Respondent said the State's evidence at trial was "overwhelming" against Mays as to both felony murder and specific intent murder, and that Mays was "virtually sure of [being] convicted." (Tr. 184-85, 186). During the defense case, the Respondent informed the judge "I couldn't call [Mays] as a witness, and the judge admonished Mays about his right to testify or not testify. Mays chose to testify. (Tr. 182).
The Respondent explained that his strategy at trial was to "go for a lesser included offense" conviction. (Tr. 182-83). He pointed out that the judge indicated that the Respondent's instruction on the lesser included offense of involuntary manslaughter would be given to the jury. (Tr. 182-83; Adm. Ex. 9 at 120). However, after a brief recess, the state's attorney chose to proceed only on the charges of home invasion and felony murder. The remaining charges, including specific intent murder were dismissed. (Tr. 183; Adm. Ex. 9 at 121). Because involuntary manslaughter is not a lesser included offense of felony murder, the jury was not instructed on that offense. (Adm. Ex. 9 at 124). The Respondent explained that he was "trying my best . . . to formulate a defense that would at least have some reason of succeeding and so that is exactly what I did. (Tr. 185). He maintained that "I developed the best strategy that I thought appropriate," and "I think it was the best I could do under the circumstances." (Tr. 185-86).
The Respondent began representing Lance Bufford in February 2008. Bufford was at a friend's house when the police executed a search warrant. During the search, the police found cocaine in one pocket and Bufford's wallet in another pocket of a jacket that was hanging on a chair. Bufford was charged with possession of cocaine. (Tr. 162-63). The Respondent also represented two other individuals, Courtney Phillips and Mario Turner, who were arrested at the house with Bufford. (Tr. 142, 162). Before the Respondent began representing him, Bufford posted bond in the amount of $10,000. The Respondent agreed to represent Bufford for a fee of $5,000 (Adm. Ex. 15), and Bufford signed a bond assignment to the Respondent. (Adm. Ex. 13 at 15; Resp. Ex. 21 at 1). The bond assignment, as usually done in Champaign County, did not state the amount of the Respondent's fee and it assigned over the full amount of the bond refund. Thus, the entire refund, minus 10% for the circuit clerk, would be paid to the attorney, and the attorney would then refund the appropriate amount back to the client. . (Tr. 147, 202-203).
Bufford gave the Respondent the names of "three ladies" who would testify that, on the day of his arrest, Bufford was wearing a jacket different than the jacket in which the cocaine was found. The Respondent telephoned one of the ladies, Sharika Johnson, and told her that Bufford said she would testify that he was wearing the different jacket on the day of his arrest. Sharika agreed she would testify "that way." Sharika then "hesitated and said but that's not true." The Respondent then told her "if it's not true, then we can't call you as a witness." (Tr. 164-65). At his next meeting with Bufford, the Respondent related what Sharika had said, and told Bufford "I could not call her" as a witness because "she was not going to tell the truth." The Respondent also told Bufford that Respondent assumed the other ladies whose names Bufford had provided
would "say the same thing. Buford, however, insisted that the Respondent call them anyway. (Tr. 165, 194-96).
Shortly before Bufford's case was to go to trial, the Respondent sought to get additional fees from Bufford. (Tr. 203, 205). The Respondent explained that he was "getting perturbed" about the number of hearings he attended and the number of hours spent on Bufford's case. On the day Bufford's case was set for trial, February 23, 2009, the Respondent "discussed with him that I thought more fee was appropriate" and showed Bufford a list of Respondent's court appearances and the number of hours he had spent on Bufford's case. (Tr. 165-67; Adm. Ex. 18 at 2). The Respondent did not have written time records, but prepared the foregoing document from the docket sheet. (Tr. 208). The Respondent had mailed a letter to Bufford, containing the same information (Resp. Ex. 18), which Bufford did not receive until after they appeared in court later that day. (Tr. 167). The Respondent also prepared a second assignment of bail (Resp. Ex. 19) for Bufford to sign. Bufford did not agree to an increase in Respondent's fee and did not sign the second assignment of bail. (Tr. 166-67).
At the same meeting on February 23, 2009, the Respondent discussed the matter of calling as witnesses Sharika Johnson and others whose names Bufford had provided. The Respondent informed Bufford that "I can't call these people to testify, and said he would file a motion to withdraw, based upon a conflict in strategy, if Bufford wanted those people to be called as witnesses. Bufford continued to insist that Sharika Johnson and the others be called as witnesses, and the Respondent filed a motion to withdraw. (Adm. Ex. 13 at 58). In court, later that day, the judge asked Bufford if he agreed with the Respondent's motion, and Bufford replied that he did. The motion was granted, and Bufford was given 21 days to obtain other counsel. (Tr. 167; Adm. Ex, 12 at 6). The Respondent acknowledged that the fact Bufford did not want to
pay additional fees "played a role" in the Respondent withdrawing in his case, but "it wasn't the primary role." (Tr. 205).
In February 2010, the Respondent received a refund check for Bufford's bail from the circuit clerk of Champaign County in the amount of $9,000. (Adm. Ex. 7). The Respondent cashed the check and retained the full amount thereof. (Tr. 168, 196-97). Bufford and/or his girlfriend Doris Drew telephoned the Respondent and inquired about the bond refund. In response, the Respondent said he would look into it and wrote Bufford a letter containing a list of his court appearances and time spent on Bufford's case. (Adm. Ex. 18). The Respondent said he told Bufford in the letter that "I had spent a lot of time on the case and I didn't feel any refund was due." (Tr. 168). The Respondent explained that, in February 2010, he recollected that Bufford had signed the second assignment and agreed for Respondent to retain the full amount of the bond refund. (Tr. 198).
After Bufford filed a complaint with the ARDC, the Respondent gave a sworn statement to Administrator's counsel in March 2011. Near the end of the statement, the Respondent "realized that the second assignment of bail may not have been signed [by Bufford]." Immediately after he completed his statement, the Respondent drove to the Champaign County Circuit Clerk's office and reviewed the file of Bufford's case. The Respondent said he was "mortified" to find that a second bail assignment had not been filed. (Tr. 168-69, 197-98). He ultimately realized that he had agreed to represent Bufford for $5,000; that Bufford did not agree to a higher fee or sign a second bond assignment; and that he owed Bufford $4,000 from the bond refund. (Tr. 203-204). On March 15, 2011, the Respondent sent a letter to Administrator's counsel, expressed an apology to Bufford, and enclosed a check in the amount of $4,000. (Tr. 169, 171; Resp. Ex. 24).
The Respondent said that he did not intentionally convert the funds of Bufford. He explained that he had a "lot of things on my plate at that time and I was very much distracted." He noted that he was going through a divorce (Resp. Ex. 26) and was running a household for his two teenage daughters. Further, in light of his age, he has trouble remembering things. (Tr. 169-71).
The Respondent was asked about the list he showed to Bufford regarding court appearances, other work, and the hours he spent on Bufford's case. (Adm. Ex. 18 at 2). The Respondent said that it is a two hours trip to the Champaign County courthouse from his office in Jacksonville, and a two-hour trip back. He acknowledged that for the first eight court appearances that he listed, he appeared of behalf of Bufford, Courtney Phillips, and Mario Turner, and for three other dates listed, he appeared for both Bufford and Turner. He also stated that he charged five hours for a discovery motion filed on March 20, 2008. (Adm. Ex. 13 at 23). He further acknowledged that he charged ten hours of time on May 5, 2008, for preparing an "objection" (Adm. Ex. 13 at 33) and his appearance in court on the objection. (Tr. 142-46).
Michael J. Costello
Mr. Costello testified that he has been an attorney in Illinois since 1962. His practice has a heavy concentration of criminal cases. He practices in Sangamon and Morgan Counties, among others. (Tr. 187-89).
He has known the Respondent since 1973. Over the years, their paths have crossed many times. They were recently involved in a case together. Mr. Costello said that the general reputation of the Respondent for truth and veracity is excellent within the communities and among lawyers of Sangamon and Morgan Counties. (Tr. 189).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In attorney disciplinary proceedings, the Administrator has the burden of proving the charges of misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Winthrop, 219 Ill. 2d 526, 542, 848 N.E.2d 961 (2006). This standard of proof requires a high level of certainty, which is greater than a preponderance of the evidence (i.e., more probably true than not true) but not as great as proof beyond a reasonable doubt. Bazydlo v. Volant, 164 Ill. 2d 207, 213, 647 N.E.2d 273 (1995); In re Kakac 07 SH 86, M.R. 23785 (May 18, 2010) (Review Bd. at 9). In determining whether the burden of proof has been satisfied, the Hearing Panel is to assess the credibility and believability of the witnesses, weigh conflicting testimony, draw reasonable inferences from the evidence, and make factual findings based upon all of the evidence. In re Howard, 188 Ill. 2d 423, 435, 721 N.E.2d 1126 (1999); In re Ring, 141 Ill. 2d 128, 138-39, 565 N.E.2d 983 (1991).
Additionally, an admission in a pleading is a formal judicial admission that is binding on the party making it, may not be contradicted, has the effect of withdrawing the fact admitted from issue, and dispenses with the need for any proof of that fact. Thus, when a respondent in a disciplinary matter admits in his or her answer some or all of the facts alleged in a complaint, it is unnecessary for the Administrator to present evidence to prove the facts so admitted. See In re Barry, 09 SH 5, M.R. 24439 (Mar. 21, 2011) (Hearing Bd. at 23); In re Hinterlong, 09 SH 46, M.R. 23811 (May 18, 2010) (Hearing Bd. at 9).
We are unable to find by clear and convincing evidence that the Respondent failed to provide competent representation to Juvon Mays.
In the case of People v. Mays, Champaign County, No. 08 CF 2293, Juvan Mays was charged with three counts of first degree murder for the shooting death of Corinthian Spinks, in violation of 720 ILCS 5/9-1(a)(1) and (2). Each count charged that Mays personally fired the shot that killed Spinks. The three counts also charged, respectively, that Mays intended to kill or do great bodily harm to Spinks (count 1); that Mays knew his acts would cause Spinks' death (count 2); and that Mays knew his acts created a strong probability of death or great bodily harm to Spinks (count 3). The Respondent's testimony, as well as the transcript of Mays' trial (Adm. Exs. 7, 8, 9), established that the State's evidence against Mays for first degree murder by personally shooting Spinks was overwhelming. As the Respondent said, Mays was "virtually sure of [being] convicted." Mays initially told the Respondent a story that included Mays not being present at or involved in the shooting. The Respondent explained to Mays that his story did not make sense in light of the State's physical and identification evidence. Consequently, the Respondent had no viable defense to present at trial.
Five days before trial, Mays told the Respondent a different story. This story was that Mays and his cousin learned that Spinks had stolen property from Mays' apartment. They went to Spinks' apartment to confront Spinks and try to get Mays' property back. According to the Respondent's testimony, Mays and his cousin both had a gun. When Spinks opened his apartment door and saw them, he tried to shut the door. However, the cousin put his foot in the door, and Mays put his hand in the door. There was a struggle, and the door hit the cousin's gun, the gun discharged, and the bullet hit Spink. Mays and his cousin went into the apartment, and then ran in different directions. A neighbor saw Mays leaving the apartment. After hearing the foregoing story, the Respondent thought there was a possibility Mays could be found guilty of a lesser included offense, such as involuntary manslaughter. He also suggested to Mays the
possibility of a plea agreement with the state's attorney for a lesser offense. The Respondent said he did discuss accountability with Mays, but he acknowledged they did not discuss felony murder. He noted that Mays was not charged with felony murder.
On the following day, the Respondent faxed a letter to an assistant state's attorney in an attempt to obtain a plea agreement. In his letter, the Respondent disclosed the substance of Mays' most recent statement, pointed out that the shooting was accidental, and suggested that a "lesser included offense would more appropriately fit." The Respondent acknowledged in his testimony that and did not realize that Mays' new story might be an admission to the crimes of home invasion and felony murder. The assistant state's attorney responded the next day, stating that he was going to file the additional charges of home invasion (720 ILCS 5/12-11(a)(3)) and felony murder (720 ILCS 5/9-1(a)(3), based upon Mays' statement. Those charges were filed on the day of trial, over the objection of the Respondent. (The Appellate Court upheld the trial judge's decision to allow the filing of the additional charges in People v. Mays, 2011 IL App (4th) 090840-U, par. 43-54)).
According to the Respondent, Mays insisted on testifying, and the trial judge admonished Mays as to his right to testify or not testify. The trial transcript supports the Respondent's testimony in this regard. (Adm. Ex. 9 at 30-32). If Mays had not testified, it appears that there would have been no proof of the additional charges of home invasion or felony murder. Thus, there is no clear and convincing evidence before us to prove that the Respondent was responsible for presenting the evidence which resulted in Mays being found guilty of home invasion and felony murder.
Based upon Mays' testimony, the Respondent formulated the strategy of attempting to convince the jury that, because the shooting of Spinks was accidental, Mays was guilty of the
lesser included offense of involuntary manslaughter. Involuntary manslaughter is a Class 3 felony, with a possible sentence far less than that for murder. During the instructions conference, the trial judge indicated that the Respondent's instructions on involuntary manslaughter would be given to the jury. (Adm. Ex. 9 at 120). At that point, the assistant state's attorney requested a short recess. Following the recess, the State dismissed the three counts of first degree murder that charged Mays with personally shooting Spinks and acting with the intents as set out above (Counts 1, 2, and 3). (Adm. Ex. 9 at 121). Thus, the State went forward only on the charges of home invasion and felony murder. As a result, involuntary manslaughter was not a lesser included offense, and no instruction on that offense was given to the jury. Mays was then found guilty of home invasion and felony murder. Judgment was entered on the felony murder count, and Mays was sentenced on that count. The conviction was affirmed on direct appeal, with the case being remanded with directions to correct the record to show that Mays was sentenced on count V, not count IV; to award credit for his time in custody to be applied toward his fines; to reduce the Violent Crime Victims Assistance Fund fine; and to award the State a $50 assessment as costs of the appeal. People v. Mays, 2011 IL App (4th) 090840-U, par. 65.
Based upon the evidence before us, the Respondent was faced with the difficult task of representing a client who had no apparent defense and who had a high possibility of being convicted of first degree murder. Based upon the story Mays told for the first time shortly before trial, the Respondent decided to pursue two strategies: attempt to obtain a plea agreement; and, if unsuccessful, attempt to convince the jury that Mays was guilty of a lesser included offense. We cannot say that either strategy was unreasonable in light of the circumstances. Even after the State filed the additional charges of home invasion and felony murder, based upon the Respondent's disclosure of Mays' statement, the Respondent's strategy of seeking a guilty
verdict on a lesser included offense was still viable. In fact, the trial judge was prepared to instruct the jury on involuntary manslaughter. The state's attorney, apparently believing there was a possibility that the jury might find Mays guilty of the lesser included offense, chose to forego the chance of convicting Mays of intentional murder and elected to accept a conviction for felony murder. While felony murder is, of course, most serious, it is less egregious than a first degree murder in which a defendant personally shot the victim with the intent to kill or to do great bodily harm. Thus, there is a possibility of a less severe sentence for felony murder than for intentional murder.
In In re Mason, 122 Ill. 2d 163, 169-70, 522 N.E.2d 1233 (1988), the alleged incompetence of a young attorney was not proved even though he failed to file a claim for his client against a city bus within six months as required by the Metropolitan transit Authority Act. The Supreme Court said that cases in which incompetence has been found for failing to file a claim within limitation periods "have typically involved situations in which the attorney had set the case aside in favor of other matters" The Court also stated that incompetence was not proved based upon the attorney's "isolated oversight," where he was "generally actively pursuing the case at all relevant times and frequently in touch with his client." On the other hand, in In re Yard, 04 SH 53, M.R. 20544 (Jan. 13, 2006), the attorney was found to be incompetent, where he failed to open an estate so that two minors could receive certain settlement funds. The attorney's only explanation for taking no action was he "simply did not know how to open an estate for a minor." Yard, 04 SH 53 (Hearing Bd. at 11).
In In re Grigsby, 00 SH 58, M.R. 18695 (May 22, 2003), the attorney was found to be incompetent in his representation of a criminal defendant who had been sentenced to death. The defendant filed a pro se post-conviction petition and the attorney was appointed to represent him.
The attorney did not file an amended petition, and the pro se petition was dismissed. The Hearing Board stated that "any competent attorney . . . would have known, or would have learned through minimal research, that [the] pro se petition was deficient and would be dismissed for failing to include affidavits or other evidence to support the claims." Also, the attorney's investigation "fell far short of what was required of a competent attorney." He did not view physical evidence, interview possible witnesses, and did not even review the entire record. Grigsby, 00 SH 58 (Hearing Bd. at 18-19; Review Bd. at 1-2). In regard to the appeal, the brief prepared by the attorney did not comply with Supreme Court Rules. "A competent attorney handling an appeal would at a very minimum know, or find out, the format required for briefs" and "would know by doing minimal research that a reviewing court may dismiss an appeal when an appellant's brief fails to include citations to the record or an Appendix." Id. (Hearing Bd. at 21-22).
In the case before us, the Respondent diligently and vigorously represented his client and pursued viable strategies. There was no evidence, or even argument, presented to us suggesting how another attorney could have better represented or obtained a more favorable result for Mays. Thus, it was not proved by clear and convincing evidence that the Respondent provided incompetent representation to Juvon Mays.
We note that a claim of ineffective assistance of counsel on the part of the Respondent, was raised in Mays' direct appeal. (Resp. Ex. 6 at 23-36). However, the Appellate Court declined to address the issue, stating that the issue is "better suited in a postconviction proceeding where a complete record may be established." People v. Mays, 2011 IL App (4th) 090840-U, par. 55.
The Respondent was incorrect in his belief that the felony murder doctrine has been applicable in Illinois for only about 10 years. (Tr. 141-42). Clearly, felony murder has existed in Illinois since long before the Respondent became licensed to practice law. See People v. Johnson, 55 Ill. 2d 62, 67-69, 302 N.E.2d 20 (1973) and cases cited therein. Nevertheless, we fail to see how his mistake as to the history of felony murder tended to show incompetence, in light of the fact that the Respondent was aware of felony murder at the time he represented Mays.
We next find that the Respondent improperly disclosed to an assistant state's attorney and to two prosecution witnesses the statements made by Mays five days before trial. The Respondent admitted in his Answer to the Complaint that he revealed May's statement to an assistant state's attorney and to two prosecution witnesses. (Answer to Complaint, pars. 14, 15). An attorney is prohibited from revealing the confidences of a client "unless the client consents after disclosure." (Rule 1.6(c) of the Illinois Rules of Professional Conduct (1990)).
In In re Ingersoll, 186 Ill. 2d 163, 710 N.E.2d 390 (1990), a man named Perry was charged with the murder of a police officer's son. Perry confessed to the murder, but the police did not disclose the confession to the public. At the request of Perry's mother, Ingersoll went to see Perry at the jail. During their conversation, Perry disclosed that he had confessed to the murder. Perry also said that he had been ordered to commit the murder in retaliation for the death of a fellow gang member. Ingersoll testified that he and Perry agreed on a strategy to help create sympathy for Perry. The strategy was to make Perry's confession public, and then mitigate the crime by showing it was related to gang activity and that Perry was ordered to commit the murder. Perry denied discussing or agreeing to the foregoing strategy. On the day after the meeting in the jail, Ingersoll contacted a local television station reporter, to whom he disclosed
the above information. The television station reported the information. Other stations then had similar reports, and Ingersoll also disclosed the information he received from Perry during an interview at a radio station. The Hearing Board found that Ingersoll violated Rule 1.6(a) and breached his fiduciary duty to Perry by disclosing the above information, and the Review Board affirmed. Ingersoll, 186 Ill. 2d at170-73.
The Supreme Court first noted that the Hearing Board's finding as to credibility was entitled to deference. The Hearing Board heard conflicting accounts, and rejected the Ingersoll's version. The Court then stated:
In further support of its findings, the [Hearing] Board also noted that even if respondent had discussed the planned strategy with Perry, respondent had failed to fully explain to Perry the possible ramifications of the plan, and therefore had not obtained Perry's informed consent. We agree. Even if respondent's testimony is accepted as true, it fails to demonstrate that respondent apprised Perry of the potential consequences of the strategy. Through this course of action, Perry gave up a challenge to the voluntariness of his confession without respondent having investigated the circumstances surrounding the statement. For these reasons, we conclude that the Administrator established by clear and convincing evidence the charges of misconduct found by the hearing panel.
Ingersoll, 186 Ill. 2d at 173-74.
In this case, Mays testified that the Respondent asked him if he could inform the state's attorney about what Mays said, and that Mays told him "no." The Respondent, on the other hand, testified that he did not specifically asked Mays if he could tell anyone about what Mays told him, and that Respondent "did not get written [or] verbal permission" from Mays to disclose Mays' statements. However, the Respondent claimed that it "was implied" that he could disclose the statements.
As stated above, there is a sharp conflict as to what was said by the Respondent and Mays regarding the disclosure of Mays' statements. We conclude that it was not clearly established that the Respondent violated an express directive from Mays not to disclose the statements.
However, based upon the Respondent's own testimony he improperly disclosed Mays' statements.
We reject the position that consent to the disclosure a client's confidential statement may be implied. There is simply no reason for an attorney to rely on an implied consent when it is easy enough to specifically ask the client if he or she consents to disclosure. Also, to allow consent to be inferred would, we believe, lessen the strict requirements of the Rule. There is no doubt that Mays did not give consent to the Respondent to disclose Mays' statements to a prosecutor or to anyone else.
There is also no doubt that the Respondent failed to make any significant "disclosure" to Mays. In the Terminology section of the Rules of Professional Conduct, "disclosure" is defined as "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." There was no evidence that the Respondent ever explained to Mays the possible ramifications of the strategy to disclose the confidential information to the state's attorney. Clearly, the Respondent did not advise Mays that his statements could establish his guilt of felony murder, because the Respondent did not realize, at the time, that Mays' statements could do so.
Consequently, the Respondent revealed the confidential statements of Mays without Mays' consent to do so, and without having informed Mays of the ramifications of the planned strategy resulting from revealing the statements.
Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in the paragraphs 22 (b) and (c) of the Complaint: failed to explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules
of Professional Conduct (1990); and revealed a confidence or secret of the client known to the lawyer without the client's consent after disclosure, in violation of Rule 1.6(a).
As discussed above, we are unable to find by clear and convincing evidence that, as charged in paragraph 22 (a) of the Complaint, the Respondent failed to provide competent representation to a client.
We do not find, as charged paragraph 22 (d) of the Complaint, that the Respondent's misconduct was "prejudicial to the administration of justice," in violation of Rule 8.4(a)(5). As mentioned above, Mays chose to testify about the same information that was in his statements to the Respondent, and the statements themselves were not used at Mays' trial. Consequently, it was Mays who presented the evidence of home invasion and felony murder at his trial, and the Respondent's disclosure did not adversely affect the outcome of Mays' trial. Also, the evidence did not show that the outcome of Mays' trial was adversely affected, in that there was overwhelming evidence of Mays' guilt of first degree murder, by Mays personally shooting the victim, in the absence of Mays' testimony
We also find, based upon the recent opinion of the Supreme Court in In re Thomas, 2012 IL 113035, that the Respondent did not "violate" Supreme Court Rule 770, as charged in paragraph 22 (e) of the Complaint. In Thomas, at par. 92, the Court stated:
Supreme Court Rule 770 is not itself a Rule of Professional Conduct. Rather, it is contained in article VII, part B, of our rules, which governs "Registration and Discipline of Attorneys." Rule 770 is titled "Types of Discipline" and provides that "[c]onduct of attorneys which violates the Rules of Professional Conduct contained in Article VIII of these rules or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute shall be grounds for discipline by the court." Ill. S.Ct. Rule 770 (eff. Apr. 1, 2004). The rule then lists eight levels of discipline ranging from disbarment to reprimand. Thus, one does not "violate" Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct. We conclude that based on his violations of Rules 5.5(a), 8.4(a)(4), and 8.4(a)(5), respondent is subject to discipline by this court pursuant to Rule 770.
In this case, as in Thomas, we conclude that the Respondent is subject to discipline under Supreme Court Rule 770 based upon his violation of Rules 1.4(b) and 1.6(a).
In February 2008, the Respondent agreed to represent Lance Bufford in a criminal case (People v. Bufford, Champaign County, No. 08 CF 207) for a fee of $5,000.00. Bufford had posted bond in the amount of $10,000, and signed an assignment (Adm. Ex. 13 at 15) so that the bond refund would go to the Respondent. At Bufford's request, the Respondent sent Bufford a letter setting out the fee agreement. In his letter (Adm. Ex. 15), the Respondent noted that Bufford had posted bond of $10,000, and then said "[i]nasmuch as my fee is only $5,000, I will refund to you any amounts left over after deducting the sum of $5,000."
On February 23, 2009, the day on which Bufford's trial was scheduled to commence, the Respondent met with Bufford. At their meeting, the Respondent complained about the amount of time he was spending on Bufford's case and requested an increase in his fee. The Respondent asked Bufford to agree that the Respondent's fee would be the entire amount of the projected bond refund, which was $10,000, minus the circuit clerk fee of $1,000. Thus, the Respondent wanted a fee increase of $4,000. The Respondent showed Bufford a document setting out the purported hours he spent on Bufford's case. (Adm. Ex 18 at 2; Resp. Ex. 20). The Respondent also requested that Bufford sign another bond assignment prepared by the Respondent. (Resp. Ex. 19). Bufford refused to agree to the fee increase. The Respondent mailed a letter, dated February 19, 2009, to Bufford requesting the fee increase (Resp. Ex. 18); however, Bufford did not receive the letter until after the Respondent had withdrawn from Bufford's case.
Bufford testified that, after he refused to agree to the fee increase, the Respondent said he was going to tell the judge he and Bufford had a conflict of interest and withdraw from the case.
The Respondent, on the other hand, testified that he filed a motion to withdraw because Bufford insisted that certain witnesses be called, when the Respondent believed they were not going to testify truthfully. Bufford provided the names of three witnesses who were going to testify about what Bufford was wearing on the day of his arrest. The Respondent spoke with one of the witnesses, Sharika Johnson. According to the Respondent, Johnson told him she would testify the way Bufford wanted "but that's not true." Johnson denied telling the Respondent her testimony at Bufford's trial would not be true. The Respondent claimed that he told Bufford the three witnesses could not be called because their testimony would not be true, but that Bufford insisted that they be called. Bufford denied that he asked anyone to testify falsely and denied that he and the Respondent had any dispute about the calling of witnesses.
When the Respondent and Bufford appeared in court on February 23, 2009, the Respondent filed a Motion to Withdraw Appearance. The motion stated, as grounds, that "there are irreconcilable differences in strategy in that the Defendant desires to proceed at trial in a manner that would cause his attorney to violate the Supreme Court Rules of Professional Conduct." (Adm. Ex. 13 at 58). The judge asked Bufford if he consented to the motion, and Bufford said that he did. The motion was then granted and Bufford was given 21 days to obtain new counsel.
After the charge against Bufford was dismissed in February 2010, the circuit clerk in Champaign County sent a bond refund check in the amount of $9,000 to the Respondent. The Respondent cashed the check and retained the entire amount. Both Bufford and his fianc?e, Doris Drew, then spoke with the Respondent by telephone regarding the bond refund. They both testified that the Respondent said he was not going to give Bufford any of the bond refund. Drew acknowledged that the Respondent told her he would look into it and get back to her. The
Respondent sent a letter to Bufford in February 2010 setting out the 100 hours he purportedly spent on Bufford's case and indicating that his customary fee was $250 an hour. (Adm. Ex. 18).
The Respondent testified that he did not intentionally convert the funds of Bufford, but that, at the time he received the bond refund, he recollected that Bufford had agreed to a fee increase and had signed the second bond assignment. He explained that he had a "lot of things on my plate at that time and I was very much distracted." He noted, for example, that he was going through a divorce and was running a household for his two teenage daughters. He also said that, in light of his age, he has trouble remembering things.
After Bufford filed a disciplinary complaint against the Respondent and after the Respondent gave a sworn statement to Administrator's counsel in March 2011, the Respondent refunded $4,000 to Bufford. The Respondent said that while giving the sworn statement, he realized he might be mistaken about Bufford agreeing to the fee increase and signing the second bond assignment. He then went to Champaign County and looked at the court file in Bufford's case. He said he "mortified" to discover that no second bond assignment had been filed. He then realized that Bufford had not agreed to the fee increase and had not signed a second bond assignment. On March 16, 2011, the Respondent sent a letter to Administrator's counsel, in which he expressed an apology to Bufford, and enclosed a check in the amount of $4,000 for Bufford.
We first find that the Respondent breached his fiduciary duty and overreached by attempting to renegotiate his fee arrangement with Lance Bufford for the purpose of obtaining a larger fee.
The Respondent entered into an attorney-client relationship with Bufford in February 2008 and that relationship continued until the Respondent was allowed to withdraw as Bufford's
counsel on February 23, 2009. It is well established that an attorney-client relationship is a fiduciary relationship as a matter of law, and the attorney's fiduciary duty to a client requires undivided fidelity, loyalty, and good faith. See Winthrop, 219 Ill. 2d at; In re Biagini, 07 SH 13, M.R. 23136 (Sept. 22, 2009) (Review Bd. at 9-10). Overreaching occurs when an attorney takes undue advantage of or abuses the position of influence the attorney holds in relation to a client in order to derive a benefit for himself. See In re Rinella, 175 Ill. 2d 504, 516, 677 N.E.2d 909 (1997); Biagini, 07 SH 13 (Review Bd. at 11).
When an attorney, during the existence of an attorney-client relationship, enters into a transaction with a client, including a transaction to increase attorney fees, there is a presumption that the attorney exercised undue influence. The attorney may rebut the presumption of undue influence "by a showing of clear and convincing evidence." In re Marriage of Pagano, 154 Ill. 2d 174, 185, 607 N.E.2d 1242 (1992). Several factors are to be considered in determining whether the presumption is overcome. Those factors include whether: (1) the attorney made a full and frank disclosure of all relevant information; (2) the client's agreement was based upon adequate consideration; (3) the client had independent advice; (4) the agreement was offered by the lawyer with unquestionable good faith and complete disclosure; (5) the client entered into the agreement with full understanding of all facts and their legal importance; and (6) the client's decision was free from undue influence and was fair. Pagano, 154 Ill. 2d at 186; Bruzas v. Richardson, 408 Ill. App. 3d 98, 104, 945 N.E.2d 1208 (2011).
In In re Crane, 96 Ill. 2d 40, 449 N.E.2d 94 (1983), the attorney was found to have overreached and breached his fiduciary duty by receiving "additional fees" from four young clients. The attorney did not explain to his clients the basis of the additional fees and did not issue receipts for them. The Supreme Court stated that the attorney "was under a duty not to
abuse his relationship to the complainants and to avoid even the appearance of impropriety." Crane, 96 Ill. 2d at 57-58).
In In re Lutz, 06 SH 81, M.R. 22544 (Sept. 17, 2008), the respondent, as public defender, represented the defendant, McCall, in a criminal case. When McCall inquired about hiring a private attorney, Lutz gave him the names of several attorneys. At some point, McCall and Lutz discussed McCall hiring Lutz privately. Lutz said his fee would be $1,000 plus the balance McCall's bond refund. McCall then hired Lutz privately, paid him $1,000, and assigned to him the bond refund. Lutz, 06 SH 81 (Review Bd. at 2-3). The Review Board in Lutz, citing Pagano and other cases, stated that "given the pre-existing attorney-client relationship, the law presumes undue influence in the subsequent agreement that changed the terms of the representation to Lutz's benefit," and that a "change in the terms of the representation, during the existence of an attorney-client relationship, that inures to the attorney's benefit also constitutes overreaching and a breach of fiduciary duty, absent proof otherwise. Id. at 11. The Review Bard went on to conclude that Lutz failed to rebut the presumption of undue influence. The Review Board said that one "critical" omission was Lutz's failure to inform McCall that he (Lutz) was "obligated to provide McCall with exactly the same level of representation, regardless of whether Lutz was appointed or retained. "The foregoing information was "essential to the client's ability to make an informed decision on whether or not to privately retain Lutz." Additionally, there was lack of adequate consideration for McCall paying fees to Lutz in light of the fact that the same level of representation by Lutz was required whether he was appointed or retained. Id. at 11. Thus, Lutz was found to have breached his fiduciary duty and engaged in overreaching. Id. at 14.
In the case before us, none of the factors set out above weigh in favor of the Respondent rebutting the presumption of undue influence. Similar to Lutz, the Respondent did not inform
Bufford that Respondent had the same fiduciary duty and was obligated to provide Bufford with exactly the same level of representation, regardless of whether or not Bufford paid additional fees to the Respondent. Because the same level of representation was required, there was no consideration for Bufford paying a higher fee. Also, the Respondent did not suggest that Bufford obtain independent advice and, realistically, there was no time for Bufford to do so because Respondent's request for a higher fee was made the day the trial was to commence. Furthermore, the document (Adm. Ex. 18 at 2) the Respondent showed to Bufford for the purpose of convincing him to agree to the higher fee contained false and misleading information. The first eight court appearances listed on the document, with the time of 5 hours each, were not solely for Bufford, but were appearances for Bufford and two other defendants. (Tr. 142-43). Three additional appearances listed on the document, with the time of 5 hours each, were not solely for Bufford, but were appearances for Bufford and one other defendant. (Tr. 143). It is clearly improper, and fraudulent, to bill different clients for the same hours of work. See In re Giamanco, 97 SH 27, M.R. 15818 (May 26, 1999) (Hearing Bd. at 35-37; Review Bd. at 13). The Respondent also listed 5 hours on March 20, 2008, for work on a "Motion for Discovery etc filed," and 5 hours on May 5, 2008, for work on an "Objection." (Tr. 143-46). After reviewing the foregoing documents (Adm. Ex. 13 at 23, 33), we find it impossible to believe that the Respondent actually spent 5 hours in preparing each of the documents. Consequently, the Respondent did not make a full and frank disclosure of all relevant information to Bufford and did not act in "unquestionable good faith" toward Bufford.
Based upon the above, the Respondent failed to overcome the presumption of undue influence, overreached, and breached his fiduciary duty to Lance Bufford.
It is also charged in Count II that the Respondent engaged in dishonesty and made a statement to a tribunal that he knew or should have known was false, based upon his filing of the Motion to Withdraw Appearance in Bufford's case. Specifically, it is alleged that the statement by the Respondent in his Motion to Withdraw Appearance that "there are irreconcilable differences in strategy in that the Defendant desires to proceed at trial in a manner that would cause his attorney to violate the Supreme Court Rules of Professional Conduct" (Adm. Ex. 13 at 58) is false. There a sharp disagreement in the testimony regarding whether or not a dispute existed between Bufford and the Respondent about calling a witness who, the Respondent believed, was not going to testify truthfully. Suffice it to say that we are simply unable to find by clear and convincing evidence that the foregoing statement in the motion to withdraw was false.
We next find that the Respondent converted funds belonging to Bufford. The evidence showed, and the Respondent admitted, that he was entitled to only a $5,000 fee for his representation of Bufford. About a year after the Respondent withdrew from Bufford's case, the charge against Bufford was dismissed and a bond refund check in the amount of $9,000 was sent to the Respondent. The Respondent cashed the check and retained the entire $9,000.
Conversion is committed when an attorney acts without authorization to deprive another of property permanently or for an indefinite period of time. "The essence of an action for conversion is the wrongful deprivation of property from the person entitled to its possession." In re Rosin, 156 Ill. 2d 202, 206, 620 N.E.2d 368 (1993). Conversion does not require a "dishonest motive," and "[e]ven if the act was unintentional or technical, an attorney who commingles or converts a client's funds is subject to discipline." In re Timpone, 157 Ill. 2d 178, 195, 623 N.E.2d 300 (1993); In re Vrdolyak, 137 Ill. 2d 407, 427-28, 560 N.E.2d 840 (1990). Clearly, the
Respondent acted without authorization to deprive Bufford of $4,000, and, thereby, committed conversion.
We are not able to find, however, by clear and convincing evidence that the Respondent knowingly and intentionally converted Bufford's funds. The Respondent received the bond refund about a year after his representation of Bufford ended. The Respondent explained that, when he received the bond refund check, he recollected Bufford had agreed to a fee increase and had signed the second bond assignment. He explained that he had a "lot of things on my plate at that time," including his own diverse proceeding, and was "very much distracted." He also said that, in light of his age, he has trouble remembering things. The Respondent should have immediately looked at his files and, if necessary, court records to accurately determine if he was entitled to the entire bond refund, particularly after he received telephone calls from Bufford and his fianc?e about the refund. Nevertheless, based upon the overall facts and circumstances, we do not find the Respondent's explanation to be unbelievable, and do not find that he engaged in dishonesty regarding the bond refund.
We also find no clear and convincing evidence that the Respondent engaged in conduct prejudicial to the administration of justice. Additionally, based upon the holding in Thomas, at par. 92, quoted in Count I, the Respondent could not "violate" Supreme Court Rule 770.
Therefore, we find that the Administrator proved by clear and convincing evidence that the Respondent committed the following misconduct charged in paragraphs 40 (a), 40 (b), and 41(a) of Count II of the Complaint: attempted to overreach; breached his fiduciary duty to Lance C. Bufford; and conversion.
We also find that the charges of misconduct in paragraphs 40 (c) through (f), and 41 (b) and (c) of Count II of the Complaint were not proved by clear and convincing evidence.
The purpose of the attorney disciplinary system is not to punish the attorney for his or her misconduct, but "to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach." In re Winthrop, 219 Ill. 2d 526, 559, 848 N.E.2d 961 (2006). In determining the appropriate sanction, we must consider the nature and seriousness of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). In addition, we may consider the deterrent value of the sanction, the "need to impress upon others the seriousness of the misconduct at issue," and whether the sanction will "help preserve public confidence in the legal profession." In re Twohey, 191 Ill. 2d 75, 85, 727 N.E.2d 1028 (2000); Gorecki, 208 Ill. 2d at 361. Although each disciplinary case "is unique and must be resolved in light of its own facts and circumstances," the sanction imposed should be "consistent with those imposed in other cases involving comparable misconduct." In re Howard, 188 Ill. 2d 423, 440, 721 N.E.2d 1126 (1999); In re Chandler, 161 Ill. 2d 459, 472, 641 N.E.2d 473 (1994).
In this case, the Administrator requested a sanction of suspension for not less than six months. (Administrator's Argument Regarding the Effect to be Given Respondent's Prior Discipline at 5). The Respondent indicated that a censure or a short suspension would be appropriate. (Tr. 238).
The misconduct of the Respondent involved revealing the contents of a confidential statement of his client, Juvon Mays, to the state's attorney in a criminal case without Mays' consent (Count I); failing to explain a matter to the extent necessary for Mays to make informed decisions (Count I); attempting to overreach and breaching his fiduciary duty to his client, Lance Bufford (Count II); and engaging in the conversion of client funds (Count II).
In In re Ingersoll, 186 Ill. 2d 163, 178-79, 710 N.E.2d 390 (1999), the Supreme Court stated that revealing a confidence of a client without the client's consent, even if the motive for doing so was to attempt to benefit the client, is "particularly troubling." In In re O'Conner, 01 CH 96, M.R. 18328 (May 17, 2004), the Hearing Board stated that "when an attorney betrays the trust of a client, the image of the profession is tarnished," and the recommendation of discipline "must send a message that such conduct is not condoned." (Hearing Bd. at 16).
It is also a serious matter that the Respondent, an experienced attorney, failed to recognize, or simply ignored, his ethical duties toward two clients in two separate matters. See Twohey, 191 Ill. 2d at 90; In re Biagini, 07 SH 13, M.R. 23136 (Sept. 22, 2009). In Biagini, for example, the Review Board stated that the respondent's "total failure to recognize his conflicts of interest and his ethical obligations to his clients aggravates this case." The Review Board also pointed out that the Supreme Court has stressed "the importance of an attorney's fiduciary duty to his or her client and the requirement of full disclosure in a business transaction with a client." (Review Bd. at 17).
The Supreme Court has "repeatedly stressed . . . the gravity of converting client funds, even if done without an invidious motive." In re Ushijima, 119 Ill. 2d 51, 58, 518 N.E2d 73 (1987). "Even if the act [of commingling or conversion of client funds] was unintentional or technical, an attorney who commingles or converts a client's funds is subject to discipline." In re Vrdolyak, 137 Ill. 2d 407, 427, 560 N.E.2d 840 (1990). The Court has also made it clear that "commingling or conversion will not be countenanced." In re Merriwether, 138 Ill. 2d 191, 199, 561 N.E.2d 662 (1990).
The discipline for conversion has ranged from censure to disbarment, with the majority of conversion cases having resulted in a suspension of some duration. Generally, a censure has been
imposed for a "first offense with significant mitigating circumstances." Merriwether, 138 Ill. 2d at 200. Thus, a censure may be warranted when the attorney "committed a single act of conversion;" had "not been involved in a prior disciplinary proceeding;" "had extensive involvement in community service programs;" there was "no evidence of dishonest motive;" the attorney "expressed remorse;" and the attorney cooperated in the disciplinary proceedings. See Id. at 202-203.
It is very troubling that the Respondent would raise the matter of a fee increase with Bufford on the day of trial. Also, the Respondent, according to his own testimony, discussed the fee matter before he discussed the possibility of withdrawing as Bufford's counsel. Additionally, as mentioned in our findings, the document the Respondent used to show Mays the hours he had purportedly spent on May's case contained false and misleading information. Furthermore, the Respondent's acknowledgement that Bufford's decision not to pay an additional fee "played a role, but it wasn't the primary role" in the Respondent filing the motion to withdraw (Tr. 205) is disturbing. If the Respondent moved to withdraw for ethical reasons, the receipt of a higher fee would not change such ethical reasons.
We also consider in aggravation the Respondent's delay in responding to Bufford's inquiry about the bond refund and in making restitution. Bufford and Buffords' fianc?e contacted the Respondent about the refund, and returning $4,000, in February 2010. While the Respondent took the time to send Bufford a letter setting out the number of hours he purportedly spent on Bufford's case (Adm. Ex. 18), the Respondent failed to examine records that might resolve the question of whether or not the Respondent was entitled to retain the entire bond refund. The Respondent's letter addressed the question of whether a $9,000 fee was justified based upon the number of hours worked. The letter also suggested that the Respondent was entitled to a fee of
$9,000 because of the number hours he worked on Bufford's case. The final sentence in the letter stated "[a]ccordingly, the bond monies in the amount of $9,000.00 and the initial legal fee of $5,000.00 is less than the fees for the total amount of time which I expended for your defense." (Adm. Ex. 18 at 1). However, the relevant question was not whether a $9,000 was reasonable, but whether Bufford had ever agreed to the fee of $9,000. The Respondent apparently took no steps, at that time, to determine if Bufford had agreed to such a fee. The Respondent did not return the $4,000 to Bufford until more than a year later, in March 2011, after Bufford made a complaint against the Respondent with the ARDC.
The letter, and attachment, the Respondent sent to Bufford in February 2010 (Adm. Ex. 18) also contained the same false and misleading information he previously gave to Bufford in February 2009. In addition, the letter contained the false claim that "I expended over 100 hours on your case." However, the 100 hours included 20 hours the Respondent allegedly worked on "2/24/09" and "2/25/09" (Adm. Ex. 18 at 2), which was after the Respondent had withdrawn from Bufford's case.
In In re Gerard, 132 Ill. 2d 507, 548 N.E.2d 1051 (1989), the Court pointed out that the "Respondent's conduct implicates two of the three purposes of our disciplinary process: maintaining the integrity of the legal profession, and safeguarding the public." The Court also noted that "the public is particularly skeptical about fees charged by attorneys, a fact we must recognize when determining the appropriate sanction." Gerard, 132 Ill. 2d at 541. Similarly in this case, the Respondent's misconduct implicates the same purposes of the disciplinary process as in Gerard.
We also consider in aggravation that the Respondent was previously disciplined. See In re Kesinger, 98 SH 106, M.R. 15782 (May 25, 1999). It determining the weight to be given prior
discipline, we are to consider the "nature of the prior misconduct and the period of time between it and the current misconduct." In re Hays, 05 SH 3, M.R. 21050 (Sept. 21, 2006) (Review Bd. at 11). There was a lengthy period of time, about 15 years, between the Respondent's prior misconduct in 1994 and his current misconduct in 2009. However, the Respondent's prior misconduct included overreaching to obtain an attorney fee, which is strikingly similar to his misconduct in Count II of the Complaint in this matter. When an attorney was previously disciplined for similar misconduct, it is very significant. See Winthrop, 219 Ill. 2d at 559; In re Brown, 04 CH 73, M.R. 22127 (Mar. 17, 2008) (Review Bd. at 16).
There is also mitigation in this case. As mentioned in our findings, the evidence did not establish that the Respondent acted with a dishonest motive in converting client funds. See Vrdolyak, 137 Ill. 2d at 427-28. The Respondent's testimony showed that he has been active in the Morgan County Bar Association, and has served as its president. He was a public defender of many years. See In re Lutz, 06 SH 81, M.R. 22544 (Sept. 17, 2008) (Review Bd. at 14). He has provided numerous hours of pro bono services. He has been very active for many years in the Jacksonville community and in his church. He has recognized that he should be sanctioned for revealing Mays' statement in the absence of specific authority to do so (Tr. 234-35, 238), and he has apologized to Bufford. (Tr. 236; Resp. Ex. 24). One character witness testified as to the Respondent's favorable reputation for truth and veracity.
While recognizing that each disciplinary case is unique, with different facts and circumstances, we found the following cases to be instructive as to the appropriate sanction in this case.
In In re Crane, 96 Ill. 2d 40, 449 N.E.2d 94 (1983), the attorney was suspended for three years. He overreached and breached his fiduciary duty to four young sibling- clients while
representing them in a probate matter and other matters related to their mother's death. The four clients were 18, 15, 14 and 12 years of age, respectively. The attorney obtained more than $24,000 in "additional fees" from them in the form of cash. Crane, 96 Ill. 2d at 44, 56-57. The Court said there were "several reasons" that justify the suspension.
Because of the unique relationship the respondent had with these complainants, we find that his surreptitious manner in collecting additional fees was improper. The respondent's requesting large sums of cash without issuing bills or receipts is behavior we certainly wish to discourage. Telling clients not to say anything if asked a question by a judge is also conduct which tends to bring the legal profession into disrepute. The complainants in this case were young impressionable people who probably had not had any prior contact with our judicial system other than their dealings with Mr. Crane. It was his responsibility, as a member of the legal profession and as a person in whom these clients placed a substantial degree of trust and confidence, to handle their matters with the utmost degree of care and honesty. We cannot expect others to respect our system of justice when a member of the legal profession refuses to issue a receipt to a client, telling that person that his purpose in not issuing the receipt is to avoid paying taxes on the money received.
Crane, 96 Ill. 2d at 65-66.
In In re Young, 2010PR00085, M.R. 24395 (Mar. 21, 2011), the attorney, received funds that he was to hold in a trust account for the benefit of a minor, Thompson, until the minor reached the age of eighteen years. The attorney removed the funds from the account, obtained a cashier's check in the amount of $6,186, and acting without authority, affixed the signature of his client on the check and used the proceeds for his own purposes. More than five years later, before Thompson was eighteen, the attorney deposited $6,157 back into the trust account. He then distributed that amount to Thompson when she turned eighteen. The attorney had practiced law for over 50 years without prior discipline; he was involved in several community and church activities; he was active in the county bar association, and performed pro bono services. The attorney was suspended for two years. (Petition to Impose Discipline on Consent at 2-4).
In Ushijima, 119 Ill. 2d at 51, the attorney was suspended for 18 months. He inadvertently converted client funds when the balance of an escrow account in which he was holding the funds fell about $1,000 below the amount he was holding for the clients. Additionally, the attorney falsely testified, but not knowingly so, at a garnishment proceeding that all the escrow funds had been distributed. About two months later, he notified the court that his testimony was mistaken. The attorney made final disbursement about four months after the disciplinary complaint was filed against him. He explained that "he delayed making those payments because he was angry at his clients, who had refused to pay his fees." Id. 119 Ill. 2d at 53, 56-57. In mitigation, the Court noted that the attorney was cooperative, presented evidence of his good reputation, and had no prior discipline during his twenty years of practice. The Court also found significant aggravating factors. The attorney "portrayed himself as the victim of deadbeat clients," and failed to understand that the purpose of a disciplinary proceeding "is not to settle fee disputes." The Court also stated:
We find unacceptable the indifference to clients' interests that the respondent admitted to when he stated that he had refused to make restitution because he was angry at his clients. We believe that holding client escrow funds as ransom in a fee dispute brings substantial disrepute to the profession. Moreover, we believe the public should be protected from anger that would cause an attorney to disregard his professional responsibility."
Id. 119 Ill. 2d at 60.
In In re Holley, 04 CH 37, M.R. 20560 (Jan. 13, 2006), the attorney, in three separate transactions, "improperly deposited funds belonging to clients or third parties into his business account and then unintentionally converted a portion of those funds by allowing the balance in his account to drop below the amount owed to the clients or third parties." In aggravation, he failed to promptly deliver the funds to one client, a husband and wife. Instead, their funds were not returned until after they had brought a legal action and obtained a judgment against him.
There was also "substantial" mitigation. The attorney accepted responsibility, expressed remorse, had no prior discipline, engaged in community service, and performed pro bono work. In addition, "several respected members of the bar" testified as to the attorney's excellent reputation for honesty and truthfulness, and described him as "highly skilled, extremely hardworking, and a person who is motivated by professional obligations rather than financial gain." (Hearing Bd. at 21-22). The attorney was suspended for s 60 days.
In In re O'Connor, 01 CH 96, M.R. 19328 (May 17, 2004), the attorney violated Rule 1.6 (a) by improperly disclosing a statement of a client, Oliva, to opposing counsel. The attorney sent e-mails in which he referred to Oliva's views regarding the settlement of the case. The attorney's motivation in sending e-mails was "a selfish desire to disrupt the Oliva settlement and cast his former partner in a poor light" The Hearing Board stated that it did "not find that he had any specific intent to disclose a client confidence;" the attorney "neglected to give his full attention to the information contained in the transmissions and carelessly forwarded a document containing information which he should have redacted;" and the "inclusion of the information regarding Oliva's willingness to settle for a certain amount resulted from a lack of due care rather than any intent to divulge confidential information." Also in mitigation, the attorney cooperated in his disciplinary proceedings, expressed regret, and had no prior discipline. O'Connor, 01 CH 96 (Hearing Bd. at 10-14). The attorney was suspended for 30 days.
In In re Schuyler, 91 Ill. 2d 6, 434 N.E.2d 1137 (1982), the attorney was censured. He entered into transactions with a client and received money from the client. The attorney did not rebut the presumption of undue influence arising from the transaction with his client. In imposing a censure, the Court pointed out that:
the presumption of undue influence stands alone as evidence of respondent's transgression. There is no clear and convincing evidence that the respondent's
conduct was the result of anything more than exceedingly poor judgment. Furthermore, it appears that the conduct complained of in this instance is an isolated event. Nothing else in respondent's background detracts from an otherwise unblemished record.
Schuyler, 91 Ill. 2d at 18.
We believe the nature of the Respondent's misconduct, considered with the aggravating and mitigating factors, is less egregious than that in Crane, Young, and Ushijima. For example, in Crane, the attorney took advantage of four young clients and obtained over $20,000 in "additional fees," in the form of cash, without any explanation or receipts. Also, his purpose in not providing receipts was to avoid paying taxes. In Young, the attorney deliberately affixed another's signature on a check, and took for his own use funds he was holding on behalf of a minor, while fully knowing he had no authority to do so. He did not replace the funds for five years. In Ushijima, there was more "significant aggravating factors" than in this case. The attorney "portrayed himself as the victim of deadbeat clients," failed to understand that the purpose of a disciplinary proceeding, held "client escrow funds ransom in a fee dispute," and refused to make restitution because he was angry at his clients.
We also believe the Respondent's misconduct, considered with the aggravating and mitigating factors, is more egregious than that in Holley, O'Connor, and Schuyler. For example, in Holley, the only aggravating factor was that the attorney failed to promptly deliver to one client the funds he unintentionally converted. On the other hand, there was "substantial" mitigation, including no prior discipline. In O'Connor, the attorney's misconduct consisted of the single matter of improperly disclosing a client's statement, and the disclosure was the result of "lack of care," rather than any intent to divulge confidential information. In Schuyler, the misconduct was an "isolated event" and the result of "exceedingly poor judgment" in an "otherwise unblemished" career.
After considering the nature of the Respondent's misconduct involving two clients, the surrounding facts and circumstances, the aggravating and mitigating factors, the cases discussed above, and the purpose of the disciplinary system, we conclude that a suspension of six months is the appropriate sanction in this matter.
Therefore, we recommend that the Respondent, G. Ronald Kesinger, be suspended from the practice of law for a period of six (6) months.
Date Entered: April 6, 2012
|Leo H. Konzen, Chair, George E. Marron, III, and Sandra Douglas, Hearing Panel Members.|