Filed May 3, 2012
In re Scott David Beal
Commission No. 2010PR00088
Synopsis of Review Board Report and Recommendation
The Administrator charged Beal with neglecting five client matters and settling two of those matters without his clients' approval. The allegations were deemed admitted after Beal failed to answer the complaint. Beal did not appear for his hearing. The Hearing Board found that Beal committed the charged misconduct and recommended that his license be suspended for two years and until further order of the court.
On review, Beal acknowledged that his misconduct warrants suspension but argued that it should be less than two years and should not run until further order of the court.
The Review Board disagreed with Beal and adopted the Hearing Board's recommendation. The Review Board considered that Beal abandoned his clients and caused them significant harm. In addition, there was evidence that Beal suffered from anxiety that prevented him from performing legal work but no evidence that his anxiety is under control or being properly treated. Beal's failure to participate in his disciplinary proceeding demonstrated a disregard for his ethical obligations and deprived the Hearing and Review Boards of the opportunity to assess his fitness to practice law. For these reasons, the Review Board recommended a suspension of two years and until further order of the court in order to protect the public and the integrity of the legal profession.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
SCOTT DAVID BEAL,
Commission No. 2010PR00088
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
The Administrator-Appellee charged Respondent-Appellant, Scott David Beal, with neglecting five client matters and settling two of those matters without his clients' approval. The charges were deemed admitted after Beal failed to answer the initial complaint and the first amended complaint. Beal did not appear for his hearing. The Hearing Board found, based upon the admitted allegations and the evidence presented at the hearing, that Beal committed all of the charged misconduct. The Hearing Board recommended that Beal's license be suspended for two years and until further order of the court.
Beal is now represented by counsel and asserts that the Hearing Board's sanction recommendation is too harsh. The Administrator asks us to adopt the Hearing Board's recommendation.
ADMITTED ALLEGATIONS AND EVIDENCE
The Hearing Board's Report and Recommendation sets forth in detail the evidence presented and the admitted allegations. We summarize below the facts relevant to our disciplinary recommendation.
Beal was admitted to practice law in Illinois in 1998. The matters at issue here are personal injury cases in which Beal represented the plaintiffs. Beal was a principal in the law firm Boudreau & Beal until the firm dissolved in 2006. Beal then formed The Beal Firm, P.C.
According to an excerpt of Beal's sworn statement that the Administrator submitted as evidence, Beal's wife moved to North Carolina in January 2007 for her employment. Beal and their children followed her there in March 2007. Initially, Beal commuted between Chicago and North Carolina on a weekly basis but "[i]t progressively became less and less." Beal started working for a firm in North Carolina in August 2008. Beal did not tell his Illinois clients that he had moved to North Carolina.
In his sworn statement, Beal stated that he has "been through a few bouts of anxiety," for which he first sought treatment in spring 2007. His wife's physician prescribed him anti-anxiety medication, which he took for several months. He had two subsequent episodes of anxiety for which he obtained medication from his primary care physician. Beal believes that his anxiety was brought on by his family's move to North Carolina, financial pressures resulting from his wife's subsequent loss of employment, and his daughter's health problems. Beal's daughter was diagnosed with rheumatoid arthritis in North Carolina and was unable to walk for a period of months. Beal stated that this caused him a great deal of stress.
Beal stated that his anxiety was "debilitating" and caused him to avoid working on client matters. He would not go into his office even though he knew there were matters he needed to address. At the time of his sworn statement on February 26, 2010, Beal was taking medication for anxiety but had not initiated treatment with a mental health professional.
Yankura - Count I
John Yankura was injured in November 1999 while driving his employer's truck. Beal agreed to represent Yankura in December 1999, and filed a complaint on his behalf in the Circuit Court of Cook County on October 31, 2001. Problems with Beal's representation of Yankura began as early as 2002, but became progressively more repetitive, and serious, thereafter. In 2002 the court dismissed Yankura's case for want of prosecution after Beal failed to appear for a status date. Beal promptly moved to vacate the dismissal, and the court reinstated the case.
The parties engaged in discovery and, on November 7, 2005, the court set a trial date of December 5, 2005. Beal did not advise Yankura of the trial date. Beal then filed a motion to voluntarily dismiss the case, which the court granted. Beal did not advise Yankura that he was filing the motion or that the case was dismissed. Beal filed another complaint on Yankura's behalf on June 21, 2006. The matter was dismissed again for want of prosecution on April 5, 2007, after Beal failed to appear for a status hearing. Upon Beal's motion, the court vacated the dismissal and reinstated the case on July 19, 2007.
On September 19, 2007, pursuant to the defendant's motion, the court quashed service of summons. The matter was dismissed for want of prosecution again on March 31, 2008. Beal filed a motion to vacate the dismissal but did not appear to present his motion. On August 20, 2008, Beal presented another motion to vacate the dismissal, which the court granted.
Beal did not appear on the next scheduled status date of October 6, 2008, which resulted in yet another dismissal for want of prosecution. Beal again moved to vacate the dismissal, and the court granted his motion on October 22, 2008.
On October 16, 2008, Beal attempted to serve the defendant, Ryssel, by filing the complaint with the Illinois Secretary of State pursuant to the non-resident motorist statute. This was Beal's only effort to serve Ryssel since the court quashed service on September 26, 2007. Ryssel moved to dismiss the complaint with prejudice due to the plaintiff's failure to use reasonable diligence to serve him. The court granted Ryssel's motion on March 12, 2009. Beal did not file a response to Ryssel's motion to dismiss, nor did he tell Yankura about the motion or the dismissal of the case with prejudice.
Yankura and his wife, Bonnie, testified that they called Beal more than 50 times and sent letters by fax and certified mail, with no response. They eventually learned from Beal's former partner, Alan Boudreau, that Beal was in North Carolina.
Yankura was not able to work after his accident due to injuries to his neck, head, back, knees, and shoulders. The Yankuras testified that Beal assured them they would receive over one million dollars as a result of their lawsuit because Yankura suffered permanent damage to his back. Instead, they have received nothing. Bonnie testified that they have depleted all of their savings and have numerous unpaid medical bills.
On June 7, 2006, Beal agreed to substitute as counsel for Catherine Tribolet and her then-husband, James Tribolet, who had a personal injury suit pending in the Circuit Court of Cook County against Pure Laser Hair Removal & Treatment Clinic, Inc. Two weeks after Beal filed his appearance, he moved to voluntarily dismiss the complaint. He refiled the complaint on June 14, 2007. The court ordered that mandatory arbitration would take place on February 17, 2009. On that date, Beal moved to vacate the order for mandatory arbitration. The court granted the motion and scheduled a status hearing for February 24, 2009. Beal failed to appear for the
status hearing and the case was dismissed for want of prosecution. Beal filed a motion to vacate the dismissal order on March 26, 2009. Beal did not schedule the motion to vacate for hearing until November 24, 2009, at which time the court granted the motion. Tribolet's case was dismissed for want of prosecution again approximately two weeks later, on December 8, 2009, because Beal did not appear for a scheduled status hearing. Beal did not tell his clients about the dismissal and made no effort to reinstate the case.
Ritchie -Count III
On September 6, 2005, Beal agreed to represent Emilia Ritchie in matters related to injuries she suffered in an automobile accident. Beal filed a complaint on Ritchie's behalf in the Circuit Court of Cook County on September 28, 2006. Without Ritchie's authorization, Beal agreed to settle Ritchie's claim for $25,000. Pursuant to the settlement agreement, the parties entered an agreed order on January 7, 2009, to dismiss Ritchie's complaint with prejudice. Beal did not tell Ritchie that her complaint was dismissed.
On January 12, 2009, Beal asked Ritchie to sign a settlement release. Ritchie refused to do so. Between January 12, 2009, and November 2009, Ritchie tried to contact Beal at least once to discuss the status of her case, but Beal did not return her call.
On June 9, 2006, Beal agreed to represent Rodney Chester with respect to injuries Chester suffered in a truck accident. Beal filed a complaint in the Circuit Court of Cook County on Chester's behalf on June 6, 2008. Chester's case was dismissed for want of prosecution on January 9, 2009, when Beal failed to appear for a status hearing. Beal never told Chester that his case was dismissed, nor did he make any subsequent effort to reinstate Chester's case. Chester
tried to contact Beal several times between January 2009 and February 2010 to discuss his case. Beal did not return Chester's calls.
Christopher Donnelly hired Beal in 2003 to represent him in connection with injuries he sustained in a motor vehicle accident in Michigan. One of the attorneys in Beal's firm filed a complaint on Donnelly's behalf on October 19, 2004, in the Circuit Court of Cook County.
Without Donnelly's knowledge, Beal obtained a voluntary dismissal of his case on June 13, 2006, and, shortly thereafter, on June 28, 2006, refiled Donnelly's complaint.
The court set a trial date of May 5, 2009, for the Donnelly matter. On May 4, 2009, without Donnelly's authorization, Beal agreed to settle Donnelly's claim for $25,000. On May 5, 2009, Donnelly's case was dismissed pursuant to the purported settlement agreement. Beal called Donnelly and told him his case had settled for $30,000.
Between May 12, 2009, and September 3, 2009, Donnelly tried without success to contact Beal to discuss the settlement. Donnelly then contacted counsel for the defendant, who told Donnelly that the settlement was $25,000, not $30,000 as Beal had represented. Counsel for the defendant also made efforts to contact Beal by telephone, letter, and e-mail, but Beal did not respond.
Between September 3 and September 17, 2009, Beal called Donnelly. He acknowledged that the settlement was $25,000 but told Donnelly that he would receive $30,000. Donnelly agreed to sign the settlement release, which provided that Donnelly agreed to settle his claim for $25,000. Beal sent the documents required to complete the settlement to counsel for
the defendant on September 17, 2009. He requested that the settlement check be sent to him and made payable to Donnelly and The Beal Firm.
The settlement check was sent to Beal on October 6, 2009. As of July 2010, Beal had not negotiated the check or communicated with Donnelly or opposing counsel. Opposing counsel told the defendant's insurer to stop payment on the check. As of October 13, 2010, when the Inquiry Board voted a complaint against Beal, Beal had not made any effort to distribute the settlement proceeds to Donnelly.
HEARING BOARD FINDINGS
The Administrator charged Beal with misconduct that occurred both before and after the supreme court adopted the 2010 Rules of Professional Conduct. Accordingly, the Hearing Board made separate findings as to conduct that occurred before January 1, 2010, and conduct that occurred after January 1, 2010. Specifically, the Hearing Board found that Beal engaged in the following misconduct based on his conduct prior to January 1, 2010:
failing to consult with a client as to the means by which the objectives of representation are to be pursued, in violation of Rule 1.2(a) of the 1990 Rules of Professional Conduct (Counts III, V);
failing to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the 1990 Rules of Professional Conduct (all Counts);
failing to keep a client reasonably informed about the status of a matter, in violation of Rule 1.4(a) of the 1990 Rules of Professional Conduct (all Counts);
failing to make reasonable efforts to expedite litigation consistent with the interests of the client, in violation of Rule 3.2 of the 1990 Rules of Professional Conduct (all Counts);
failing to promptly notify the client upon receiving property in which the client has an interest, promptly deliver funds that the client is entitled to receive, and render a full accounting, in
violation of Rule 1.15(b) of the 1990 Rules of Professional Conduct (Count V);
engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the 1990 Rules of Professional Conduct (Count V);
engaging in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the 1990 Rules of Professional Conduct (all Counts); and
engaging in conduct which tends to defeat the administration of justice or brings the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770 (all Counts).
With respect to Beal's conduct that occurred after January 1, 2010, the Hearing Board found that he engaged in the following misconduct:
failing to act with reasonable diligence and promptness in representing a client, in violation of Rule 1.3 of the 2010 Rules of Professional Conduct (Counts IV, V);
failing to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a) of the 2010 Rules of Professional Conduct (Counts IV, V);
failing to promptly notify the client upon receiving property in which the client has an interest, promptly deliver funds that the client is entitled to receive, and render a full accounting, in violation of Rule 1.15(d) of the 2010 Rules of Professional Conduct (Count V);
engaging in conduct which tends to defeat the administration of justice or brings the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770 (Counts IV, V).
Before the Hearing Board, the Administrator requested that Beal's license be suspended for one year and until further order of the court. The Hearing Board determined that a one-year suspension did not adequately address Beal's misconduct or the factors in aggravation and recommended a two-year suspension until further order of the court. Beal contends on
review that the suspension should be shorter and should not run until further order of the court. The Administrator asks us to adopt the Hearing Board's recommendation.
The purpose of a disciplinary sanction is not to punish an attorney who has committed misconduct, but to protect the public, maintain the integrity of the legal profession, and safeguard the administration of justice from reproach. In re Spak, 188 Ill.2d 53, 67-68, 719 N.E.2d 747 (1999). We seek to recommend discipline that is consistent with sanctions imposed in other cases for similar misconduct but must base our recommendation on the particular facts and circumstances of this case, including the nature of the misconduct and the aggravating and mitigating factors. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). Like our recommendation, the Hearing Board's recommendation is advisory. In re Ingersoll, 186 Ill.2d 163,178, 710 N.E.2d 390 (1999).
Sanctions for neglecting client matters range from censure (In re Kink, 92 Ill.2d 293, 442 N.E.2d 206 (1982) (respondent neglected three estate matters)) to disbarment (In re Steinke, 97 CH 92 (Hearing Board, Feb. 2, 1998), approved and confirmed, No. M.R. 14730 (May 27, 1998) (respondent neglected five pending matters and abandoned his law practice)). Beal's misconduct falls on the more egregious end of the spectrum.
Attorneys like Beal who abandoned their practices have been disbarred or given lengthy suspensions until further order of the court. The respondent in Steinke disappeared, leaving five cases pending in the circuit courts and abandoning other real estate and business incorporation matters. Similar to Beal, Steinke did not advise his clients that he would no longer be representing them and did not deliver their files to them so they could obtain other counsel. Steinke's misconduct substantially harmed his clients, one of whom was a mentally incompetent elderly woman who depended on Steinke as guardian of her estate to pay her bills. As in this
case, Steinke's neglect caused clients' lawsuits to be dismissed, in one instance with prejudice. Steinke did not answer the Administrator's complaint or appear for his hearing. He was disbarred. Steinke, 97 CH 92. Hearing Board Report and Recommendation at 18-20.
Beal's misconduct also resembles the misconduct in In re German, 09 CH 6 (Hearing Board, Oct. 16, 2009), approved and confirmed, No. M.R. 23520 (March 16, 2010)), and In re Malicki, 03 CH 95, approved and confirmed, No. M.R. 19488 (Sept. 24, 2004), two cases relied upon by the Hearing Board.
German abandoned his Illinois practice, leaving behind four pending matters. Two of matters were civil cases in which he represented defendants, and the others were cases in which the court had appointed him guardian ad litem for minors. As a result of German's neglect, one of his clients had a default judgment and sanctions entered against him. German's neglect of another client's appeal caused the appeal to be dismissed. Before he abandoned his practice, German falsely told his clients that he was taking care of their cases. German refused to accept personal service of the Administrator's complaint after investigators located him at an extended-stay hotel near St. Louis, Missouri. He did not answer the complaint or participate in his disciplinary proceedings. He advised counsel for the Administrator by letter that he wished to surrender his Illinois license. German was suspended for two years and until further order of the court. German, 09 CH 6, Hearing Board Report and Recommendation at 2-7, 24-25.
Similarly, Malicki undertook representation of two clients but then stopped communicating with them. One client paid Malicki $16,000 in fees to represent him in connection with a real estate development. Malicki did some work on the file but then failed to appear on his client's behalf at a Planning Board meeting and did not complete the work necessary to complete the development project. As a result, Malicki's client had to hire another
attorney and make costly changes to his development plan. Other clients hired Malicki to represent them in sale of their house and purchase of a new house. They also asked Malicki to create a revocable inter-vivos trust and make their new home part of the trust. Malicki apparently did the work necessary for the closings but did not place the clients' home in trust despite repeated requests to do so. Malicki did not answer the Administrator's complaint or attend his hearing. He was suspended for two years and until further order of the court. Malicki, 03 CH 95, Hearing Board Report and Recommendation at 2-7, 10-12.
In re Fitzgibbons, 07 CH 25 (Hearing Board, Nov. 7, 2007) at 3-8, approved and confirmed, No. M.R. 22114 (Jan. 23, 2008), is factually similar to this matter as well and supports a lengthy suspension until further order of the court. Fitzgibbons abandoned the cases of four clients whom he represented in personal injury and worker's compensation claims. In the personal injury cases, Fitzgibbons failed to file complaints and the clients' causes of action became time-barred. In the worker's compensation matters, he filed applications for adjustment of his clients' claims but then did no further work on the claims. Fitzgibbons evaded service of the Administrator's complaint and did not participate in any of the disciplinary proceedings. He was suspended for three years and until further order of the court.
Beal's misconduct is at least as egregious as the misconduct in the foregoing cases, if not more so. Although he performed some work on his client's cases, he abruptly abandoned his clients without giving them notice or information that would alert them that they should seek new counsel. As a result, the Yankuras' personal injury case was dismissed with prejudice and they suffered substantial financial harm. Tribolet's and Chester's cases were dismissed as well, without their knowledge. Beal committed the additional misconduct, not present in the foregoing cases, of settling two matters without his clients' consent and
misrepresenting the amount of Donnelly's settlement. To make matters worse, due to Beal's refusal to communicate with his clients and opposing counsel, the settlements were delayed or not finalized. In one instance, opposing counsel sent Beal a $25,000 settlement draft but Beal never deposited it. Beal completely disregarded his clients' interests and caused significant harm. A lengthy suspension is necessary to protect the public and the integrity of the legal profession.
None of the cases Beal cites in favor of a lesser suspension involve attorneys who abandoned their practices and left the state without notice to their clients, agreed to settlements without client authorization, misrepresented the amount of a settlement to a client, and prevented their clients from obtaining their settlement funds by failing to finalize the settlements. Consequently, these cases do not support a recommendation of a lesser sanction in this case.
Beal argues that his discipline should not run until further order of the court. We disagree. The vast majority of cases in which respondents have disregarded their obligation to participate in disciplinary proceedings result in disbarment or suspension until further order. See In re Pierce, 07 CH 32 (Review Board, July 30, 2009) at 5, approved and confirmed, No. M.R. 23393 (Nov. 17, 2009) ("The Administrator notes in his brief that, with only a single exception, all 145 disciplinary cases involving a default decided between 1998 and 2008 have resulted in either disbarment or a suspension until further order of the court"). Respondents who fail to appear for their hearing are generally required to establish their fitness before resuming practice because their absence not only demonstrates contempt for the disciplinary process and Rules of Professional Conduct but also "deprives the Hearing Board of the opportunity to assess the attorney's credibility and fitness to continue the practice of law." Pierce, 07 CH 32 Review Board Report and Recommendation at 4-5.
The need to assess fitness is particularly important in this case in light of Beal's statement that "debilitating anxiety" prevented him from doing legal work. Because Beal chose not to appear, there was no evidence regarding his current mental state or whether he has obtained appropriate treatment for his anxiety. Thus, there is no evidence to support the conclusion that Beal is fit to practice law and manage client matters without repeating his misconduct. Beal needed to demonstrate that he is not a danger to future clients. He has not, and they need to be protected.
Beal contends that the absence of evidence that he has experienced problems while practicing in North Carolina demonstrates that a suspension until further order is not warranted. We disagree. If Beal wanted this Board to consider as mitigation his practice in North Carolina, he was obligated to present evidence to support his assertion that he has corrected the problems that led to this proceeding. Having failed to do so, Beal has waived this argument. See In re Zurek, 99 CH 45 (Review Board, March 28, 2002) at 7, petition for leave to file exceptions denied, No. M.R. 18164 (Sept. 19, 2002) (unsupported contentions are waived). Because the record is silent with respect to Beal's North Carolina practice, we have no basis to conclude that his conduct there has been appropriate. Nothing in the record would allow us to conclude that Beal is currently fit to practice law or will be when his recommended term of suspension ends.
Last, we have considered that Beal has no prior discipline but give this factor little weight in comparison with the serious misconduct and factors in aggravation.
For all of the foregoing reasons, we recommend that the Hearing Board's findings of misconduct be affirmed and that the license of Respondent, Scott David Beal, be suspended for two years and until further order of the court.
Date Entered: 3 May 2012
Richard A. Green