Filed November 30, 2012
BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
|In the Matter of:
JESS EVAN FORREST,
Commission No. 2011PR00011
REPORT AND RECOMMENDATION OF THE HEARING BOARD
The hearing in this matter was held on June 29, 2012, at the Chicago offices of the Attorney Registration and Disciplinary Commission (ARDC or Commission), before a Panel of the Hearing Board consisting of Lon M. Richey, Chair, Cynthia A. Cohan, and Albert C. Baldermann. Meriel Coleman appeared on behalf of the Administrator. Respondent appeared in person and was represented by Thomas P. McGarry.
On February 1, 2011, the Administrator filed a one-count Complaint against Respondent alleging he engaged in misconduct by falsely notarizing signatures on a quit claim deed. On October 19, 2011, the Administrator was granted leave to file his First Amended Complaint, which added an additional count alleging misconduct based on false statements Respondent made in his written response to the Administrator's inquiry regarding the matter.
Count I is based on allegations concerning Respondent's actions as attorney for a developer, Loulee Inc. (Loulee), in connection with its sale of a condominium unit to Jose and
Minerva Alcauter in October 2004. After the sale closed, an error was discovered in the closing documentation concerning the number of the unit sold. Count I alleges that Respondent failed to inform the Alcauters or their attorney of the error and attempted to correct the matter himself by preparing and recording two quit claim deeds. It further alleges Respondent falsely notarized the Alcauters' signatures on one of those deeds, in violation of the criminal provisions of the Illinois Notary Act, 5 ILCS 312/7-105.
Count II stems from these same basic facts, but concerns statements Respondent made in his written response to the Administrator's inquiry regarding the matter. The Complaint alleges Respondent made knowing misrepresentations by stating that the buyers signed the quit claim deed in his presence and by representing he had informed the buyers and other interested parties of the numbering mistake.
On March 15, 2011, Respondent filed his Answer to the original one-count Complaint. On November 8, 2011, Respondent filed his Answer to the First Amended Complaint.1 Respondent admitted most of the underlying factual allegations in Count I, but denied he failed to inform the Alcauters or their attorney of the error regarding the unit numbers. Respondent also denied knowing whether the Alcauters had actually signed the deed and denied all of the charges of misconduct. Respondent admitted some of the factual allegations in Count II, including the allegation that the Alcauters did not execute the quit claim deed in his presence as he stated in his written response to the Administrator. Respondent denied knowing that the statements in his written response were false and denied all of the charges of misconduct.
The Administrator called Respondent as an adverse witness and presented the testimony of Thayer Torgerson and Jose Alcauter. The parties also stipulated that if called as a witness, the testimony of Minerva Alcauter would be substantially the same as that of her husband, Jose Alcauter. (Tr. 76). Respondent testified on his own behalf. Administrator's Exhibits 1 through 11 and Respondent's Exhibits 1 and 2 were received into evidence. (Tr. 5-6).
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. Illinois Supreme Court Rule 753(c) (6); See also, In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). Clear and convincing evidence constitutes a high level of certainty, which is greater than a preponderance of the evidence, but less than proof beyond a reasonable doubt. See, e.g., People v. Williams, 143 Ill. 2d 477, 577 N.E.2d 762 (1991). It is the responsibility of the Hearing Panel to determine the credibility of the witnesses, weigh conflicting testimony, draw reasonable inferences and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300 (1993).
Background Admitted Facts and Evidence
Respondent is 72 years old. He was admitted to practice law in Illinois in 1964 and to the Michigan bar in 2008. For the past ten years, Respondent has concentrated the majority of his practice on condominium conversions and sales. In connection with his work as a real estate attorney, Respondent has also acted as a title agent for Freedom Title. (Tr. 19-20, 83).
Respondent began representing Loulee in 2000. At the time, Loulee was buying apartments and converting them into condominiums. Respondent represented Loulee in the
purchase of the properties, handled the condominium conversions, and represented Loulee in the condominium sales. Respondent was paid by Loulee per transaction. Respondent ceased representing Loulee about four or five years ago, after its capital dried up and the market declined. (Tr. 21-22).
Respondent is charged in Count I with committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects in violation of Rule 8.4(a)(3) of the Illinois Rules of Professional Conduct (1990) (Rules), by falsely notarizing signatures on a quit claim deed in violation of 5 ILCS 312/7-105.
A. Admitted Facts and Evidence Considered
On October 14, 2004, Respondent represented Loulee in its sale of a condominium unit located at 7545 W. Belden Avenue in Elmwood Park, Illinois (Belden property) to Jose and Minerva Alcauter. The Alcauters were living in a home they owned in Gurnee, Illinois, and bought the unit for Mrs. Alcauters' parents to live in. The Alcauters were represented in that transaction by attorney Thayer Torgerson. The closing documents reflected that the Alcauters were purchasing condominium Unit 3 and the actual unit occupied by Mrs. Alcauters' parents had a "No. 3" over the door. There were no problems at the closing and neither Respondent nor Mr. Torgerson discovered any irregularities with respect to the numbering of the condominium unit at that time. (Resp. Ans. par. 1; Tr. 23, 47-49, 54, 56-57, 64-65).
Sometime after the Alcauters' purchase of the condominium closed, Respondent and Loulee discovered that the Belden property had been incorrectly sold as "Unit 3" when, pursuant to the condominium survey, it was in fact "Unit 2." According to Respondent, Mr. Adamo, Loulee's principal, discovered the error when he went to sell the unit across the hall from the Alcauters' unit. Respondent testified that Mr. Adamo, who is not an attorney, then asked Respondent to prepare quit claim deeds "to straighten out the scrivener's error." Respondent
testified that in his opinion, preparing the quit claim deeds "was the only way to fix the problem." (Resp. Ans. par. 2; Tr. 23-25).
Around May 2005, Respondent prepared a quit claim deed to re-convey the Belden property from Jose and Minerva Alcauter to Loulee. Respondent also prepared a quit claim deed by which Loulee would convey Unit 2 to the Alcauters. On May 5, 2005, Respondent notarized the purported signatures of Jose and Minerva Alcauter on the quit claim deed conveying Unit 3 to Loulee by attesting to the following:
I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that JOSE ALCAUTER and MINERVA ALCAUTER, his wife personally known to me to be the same persons whose names they subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act, for the uses and purposes therein set forth, including the release and waiver of the right of homestead.
(emphasis in original). Respondent admitted he did not actually witness the Alcauters sign the quit claim deed. After notarizing the Alcauters' signatures on the deed, Respondent caused the deeds to be recorded. (Resp. Ans. pars. 3-5, 13; Tr. 15, 30; Adm. Ex. 1).
Jose Alcauter testified he never heard anything after the closing from Respondent or Loulee regarding any problems with the condominium description on the closing documents. (Tr. 65). Mr. Torgerson also testified that neither Respondent nor Loulee ever advised him after the closing on the Belden property that there had been any mistakes in the description of the Alcauters' property. (Tr. 51).
Respondent did not testify that he had any direct contact or communication with the Alcauters concerning the numbering error. Rather, he acknowledged relying on information he received from his client, Mr. Adamo, in handling this matter. Respondent testified that "Mr. Adamo indicated that he had spoken to the Alcauters, and they fully understood and to send him the documents, and he would take care of it." Respondent testified he thought it was okay to rely
on his client regarding this because he was the owner of the building, had sold the Alcauters the unit, and told Respondent he had spoken with them. (Tr. 25-26).
After Respondent completed the foregoing, he did not mail a copy of the quit claim deed to the Alcauters. Respondent stated he did not send them a copy of the deed because that was not his "practice." He also stated he did not think the Alcauters needed a copy of the deed because he was under the impression, based upon his discussions with Mr. Adamo, they had voluntarily signed it and were fully aware of what had happened. Respondent testified he did not learn about the Alcauters' concerns regarding the deed until he received the inquiry from the ARDC. (Tr. 30-32).
Respondent admitted he did not notify Mr. Torgerson, the Alcauters' attorney, of this "scrivener's error." Respondent testified he did not have "any reason" to call Mr. Torgerson because the transaction had closed a year earlier and he had no indication the attorney who represented the buyers at the closing would still be representing them. Respondent also stated that his files with respect to the matter were stored off-site and he did not deem it necessary to retrieve them to determine whether the Alcauters had been represented by an attorney at the closing. (Tr. 25-26).
B. Analysis and Conclusions
Rule 8.4(a)(3) provides that a lawyer shall not "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Based upon the admitted facts and other evidence presented, we find it was proven by clear and convincing evidence Respondent violated Rule 8.4(a)(3).
The evidence established that Respondent committed a criminal act when he notarized the Alcauters' signatures on the quit claim deed without witnessing them sign the deed or taking
any steps to verify their signatures. The Illinois Notary Act requires that in witnessing or attesting to a signature, a notary public must determine either from personal knowledge or satisfactory evidence that the person signing the document is actually the person he claims to be. 5 ILCS 312/6-102. The Act further provides that a notary who willfully violates the act is guilty of a Class A misdemeanor, and that a notary who recklessly violates the act is guilty of a Class B misdemeanor. 5 ILCS 312/7-105. Respondent admitted in his testimony at the hearing he did not witness the Alcauters sign the quit claim. Nor is there evidence he took any steps to contact the Alcauters or to otherwise verify that the signatures on the deed were genuine. Rather, Respondent simply obtained the signed deed from his client and took his client's word for it that the Alcauters had signed the document. Respondent then notarized the Alcauters' signatures and falsely certified they had appeared before him that day and acknowledged signing the document. We find that this constitutes a violation of the criminal provisions of the Illinois Notary Act. We further find that criminal conduct of this nature, which involves a false certification on a legal document, reflects adversely on Respondent's honesty and trustworthiness in violation of Rule 8.4(a)(3). See In re Maganzini, 09 CH 36, M.R. 23561 (Jan. 21, 2010); In re Blum, 08 CH 22, M.R. 22969 (Mar. 16, 2009); In re Ravago, 06 CH 71, M.R. 22600 (Nov. 18, 2008).
Respondent is charged in Count I with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) of the Rules.
A. Admitted Facts and Evidence Considered
We consider the admitted facts and evidence outlined above in Section I.
B. Analysis and Conclusions
Respondent also engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4) by knowingly signing the false certification. Regardless of whether Respondent knew that the signatures were forged, Respondent admitted
that the Alcauters did not sign the quit claim deed in his presence and he had no contact with them regarding the matter. Despite this, Respondent falsely certified that they had appeared before him and acknowledged signing the document. Even apart from his violation of the criminal provisions of the Notary Act, we find that such a knowing misrepresentation by an attorney constitutes a clear violation of Rule 8.4(a)(4). See In re Rinella, 175 Ill. 2d 504, 518, 677 N.E.2d 909 (1997) (Rule 8.4(a)(4) violation found where respondent gave testimony he knew was false); In re Winthrop, 219 Ill. 2d 526, 558, 848 N.E.2d 961 (2006) (Rule 8.4(a)(4) violation found where respondent relayed information he knew was false to the benefit of one client and detriment of another).
Respondent is charged in Count I with engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the Rules.2
A. Admitted Facts and Evidence Considered
We consider the admitted facts and evidence outlined above in Section I.
B. Analysis and Conclusions
We do not find sufficient evidence to establish Respondent violated Rule 8.4(a)(5) in connection with this matter. Rule 8.4(a)(5) prohibits lawyers from engaging in conduct prejudicial to the administration of justice. The "administration of justice" has generally been interpreted as requiring that the misconduct involve the judicial process or a tribunal. See In re Kinzy, 09 CH 74, M.R. 25292 (Sept. 17, 2012) (no Rule 8.4(a)(5) violation where the judicial process was not involved); In re Sutherin, 03 CH 61, M.R. 20636 (Sept. 20, 2006) (violation of Rule 8.4(a)(5) requires involvement of a tribunal); In re McAvoy, 03 CH 8, M.R. 20463 (Jan. 13, 2006) (violation of Rule 8.4(a)(5) requires involvement of judicial process). Here, Respondent's improper notarization of the quit claim deed took place in the context of a real estate closing, not a proceeding before a court or other tribunal. Thus, we conclude the Administrator failed to
prove Respondent's misconduct involved the administration of justice, as required to establish a violation of Rule 8.4(a)(5).
Before considering the merits of the Count II charges, we first address a preliminary matter concerning the applicable rules. The charges in Count II of the First Amended Complaint reference rule numbers contained in the prior version of the Illinois Rules of Professional Conduct, which were replaced by new Rules effective on January 1, 2010 (2010 Rules). Based upon the complaint allegations as well as the evidence presented, however, it appears that all of the misconduct occurred after the effective date of the 2010 Rules. Respondent apparently did not raise this issue or object to the charges on this basis. Moreover, we have reviewed all three of the rules at issue and conclude that, while they have been renumbered, the rules themselves have not been substantially changed. The operative language in Rules 8.4(a)(4) and 8.4(a)(5) in the former Rules is virtually identical to that in Rules 8.4(c) and 8.4(d) of the 2010 Rules. Although Rule 8.1(a) has been reworded slightly, its meaning has not been substantively changed from the former Rule 8.1(a)(1).3 Therefore, since Respondent did not raise the issue and we do not perceive any issues regarding notice, we will address the charges in Count II under the applicable provisions of the 2010 Rules.
Respondent is charged in Count II with making a statement of material fact known by the lawyer to be false in connection with a lawyer disciplinary matter in violation of Rule 8.1(a)(1), which is Rule 8.1(a) in the 2010 Rules.
A. Admitted Facts and Evidence Considered
On February 26, 2010, the Administrator sent a letter to Respondent requesting that he respond to allegations by the Alcauters that Respondent had forged their signatures on the quit claim deed. On March 5, 2010, Respondent sent his written response to the Administrator, in which he made the following statements regarding the matter:
Please be advised that I in response thereto, I have referred to may (sic) closing file on this matter, and advise you as follows:
In July of 2004, I represented Loulee, Inc., the developer of the project at 7545 W. Belden Ave., Chicago, Illinois, and, on behalf of the developer, caused to be recorded in the office of the Recorder of Deeds of Cook County, Illinois, the Declaration of Condominium Ownership, under Document No. 0420334117.
One of the units was sold to Mr. and Mrs. Alcauter and closed on October 14, 2004. The unit sold to them, per the enclosed Warranty Deed, was described therein as Unit 7547-3, and they moved into said unit after the closing.
Sometime thereafter, it was ascertained that the Units had been misnumbered by the Developer, since the numbers on the door of Mr. and Mrs. Alcauter's unit was #3, but the proper location of said Unit, pursuant to the Condominium Survey, was, in fact Unit 2.
As a result, both the Title Company who closed this loan and Mr. and Mrs. Alcauter were notified of the error, and the lender was instructed to amend the unit number on its mortgage to reflect the correct designation, and the Alcauters were requested to come in to my office, execute a quit claim Deed back to the Developer for Unit 3, and receive, in return, a Quit Claim Deed to Unit 2, which was, in fact, their proper unit.
They executed said quit claim deed in my presence, and that Deed was recorded, along with the deed to them of Unit 2 on May 8, 2005, as per the attached deeds.
In checking, further, I find that the Cook County Treasurer's Office reflects that the tax payer for Unit 2 is, in fact, Mr. Alcauter, with the PIN of 12-36-206-1010, and the unit owner of #3 is Loulee, Inc., the Developer to whom Mr. and Mrs. Alcauter conveyed Unit 3.
In furtherance thereof, I enclose a copy of the print out from the Cook County Recorder of Deeds website, showing title in Unit 2 (1010) vested in Alcauter, and title to unit 3 (1009) in the eventual grantee from Loulee, Inc. who sold said property in 2005.
I have no knowledge of the real estate problems of the Alcauters, since it is clear that they received, in the mail, all tax bills for their unit since 2005. If they did not pay these taxes, they should have, and it is their responsibility to follow up on same.
In addition, a search of the Circuit Court records reflect that there were 2 suits filed by the Condominium Association against the Alcauters for non payment of Association Assessments. One, Number 2006 M1-726418, was filed by this office since I was representing the Association at that time. I enclose a print out of said proceedings, as well as 2009 M1-720050, which I also enclose.
It appears that the Alcauters not only failed to pay their taxes, they failed to pay their Assessments.
It further appears that they (sic) Alcauters no longer reside at the property, since their current licenses, taken out three years ago, shows a Gurnee address.
In closing, I most certainly did not forge the names of the Alcauter's (sic) to the quit claim deed which restored them to their proper Unit, and they know (sic) of said change in unit numbers back in 2005.
I hope that this clears up any questions which you or the Administrator may have in this matter.
I look forward to a resolution of the complaint in my favor.
If you have any questions, please do not hesitate to call.
(Adm. Ex. 2). Respondent included with his letter multiple attachments, including a copy of the original warranty deed from 2004 conveying Unit 3 to the Alcauters, copies of the two quit claim deeds recorded in 2005, and printouts from the Cook County Treasurer's Office, Cook County Recorder of Deeds Office and the Clerk of the Circuit Court of Cook County. (Resp. Ans. pars. 10, 11, 12; Tr. 32-34; Adm. Ex. 2).
During the course of these disciplinary proceedings, the Administrator retained Diane Marsh, a certified forensic document examiner, to examine the quit claim deed and render an opinion regarding the authenticity of the purported signatures of the Alcauters on that document. Ms. Marsh examined documents containing known signatures of Jose and Minerva Alcauter and compared those signatures with the disputed signatures on the quit claim deed. After observing that there were multiple fundamental differences between the questioned signatures and known signatures, Ms. Marsh concluded Jose and Minerva Alcauter did not sign the quit claim deed. Ms. Marsh's findings were incorporated into a written report dated July 8, 2011, which was admitted into evidence. (Tr. 15; Adm. Exs. 3, 4).
At the hearing, Respondent stipulated to the qualifications and admissibility of Ms. Marsh's opinions and did not contest that the disputed signatures did not belong to the Alcauters. (Tr. 15). Respondent also admitted in his testimony that his statement in his written response that the Alcauters "executed said quit claim deed in my presence" was inaccurate. Respondent denied, however, that he intentionally misled the Commission. Respondent maintained that he did not know this statement was incorrect at the time he submitted the letter, but only realized it later on, after the ARDC's handwriting expert determined the signatures of the Alcauters were not genuine. Respondent explained that he did not immediately pull his file with respect to the Alcauter transaction and was relying on his memory of these events and his normal practices when he provided his initial response. He noted that these events occurred a number of years ago and he has since determined that his "memory was not correct." (Tr. 28, 33-35, 78).
Respondent testified that, to the best of his recollection, everything else contained in the letter is correct. This includes his statement that "the lender was instructed to amend the unit number on its mortgage to reflect the correct designation." Respondent said he assumed the title company had done that, because he had notified it of the error. Respondent noted he did not state in the letter he had done this himself. (Tr. 34).
B. Analysis and Conclusions
Rule 8.1(a) provides that a lawyer shall not "knowingly make a false statement of material fact" in connection with a disciplinary matter. We find that Respondent violated Rule 8.1(a) by falsely stating in his letter to the Administrator that the Alcauters appeared at his office and executed the quit claim deed in his presence. Respondent admitted the Alcauters did not execute the deed in his presence and that his statement to the contrary was false. It is also clear this misrepresentation concerned a material fact, as the Administrator was specifically
investigating the Alcauters' charge that their signatures on the deed had been forged. Thus, the only issue with regard to the Rule 8.1(a) charge is whether Respondent knew the statement was false at the time he made it. Although Respondent denied this, we find it was established by clear and convincing evidence that Respondent knowingly gave a false response.
Respondent's defense to this charge hinges on his explanation that the inaccuracy in his response was due to an innocent and careless mistake, which he attributed to his poor recollection regarding these events. He further stated he did not review his file in connection with the matter and simply based his response on his normal practice. Based upon all of the facts and circumstances present, however, we do not find this explanation credible.
First, Respondent's testimony at the hearing was directly contradicted by his own statement at the outset of his letter, where he specifically stated he referred to his "closing file" in preparing his response. We believe Respondent is bound by this prior statement and reject his attempt to try to back away from it now. Second, Respondent's explanation is inconsistent with the letter as a whole, which is quite detailed and specific. Nowhere in the letter does Respondent suggest any doubt, uncertainty or lack of recollection regarding the matter. Finally, given the nature of the inquiry and the obvious importance of his submission, we believe Respondent had an obligation to ensure that the information he provided the Administrator was complete and accurate. It is simply not reasonable for an attorney to suggest that he carelessly dashed off a response to the Administrator based solely upon his usual practice or some vague memory of the transaction. This is especially true where the attorney has been accused of notarizing forged signatures on a legal document.
For all of the foregoing reasons, we cannot accept Respondent's contention that his misrepresentation should be excused because it was the product of an inadvertent mistake or
error. Accordingly, we find that he knowingly made a false statement of material fact in connection with a disciplinary investigation in violation of Rule 8.1(a).
Respondent is charged in Count II with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(a)(4), which is Rule 8.4(c) in the 2010 Rules.
A. Admitted Facts and Evidence Considered
We consider the admitted facts and evidence outlined above in Section IV.
B. Analysis and Conclusions
In light of our findings with regard to the Rule 8.1 charge, we also find that Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c). An attorney clearly violates this rule when he makes a knowing misrepresentation of a material fact during the course of a disciplinary matter, as Respondent did here. See Rinella, 175 Ill. 2d at 518 (finding respondent violated former Rule 8.4 (a)(4) by providing false testimony during the course of a disciplinary matter).
Respondent is charged in Count II with engaging in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5), which is Rule 8.4(d) in the 2010 Rules.
A. Admitted Facts and Evidence Considered
We consider the admitted facts and evidence outlined above in Section IV.
B. Analysis and Conclusions
We also find that there was clear and convincing proof Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). Unlike the misconduct in Count I, Respondent's misrepresentation to the Administrator clearly involved the administration of justice because it occurred in the context of this disciplinary matter. It is also clear that his wrongdoing had an adverse impact on these proceedings. As a result of Respondent's initial misrepresentation that the Alcauters signed the deed in his presence, the Administrator was
required to expend effort further investigating that matter. This included obtaining the opinion of a handwriting expert in order to establish that the signatures were not genuine. It was only then that Respondent acknowledged his original statements were false, and he had not actually witnessed the Alcauters sign the document. Thus, Respondent's actions caused an unnecessary expenditure of both of time and resources, which is sufficient to establish a violation of Rule 8.4(d). See In re Verett, 07 SH 105, M.R. 22567 (Sept. 17, 2008) (Hearing Bd. at 34) (administration of justice prejudiced where misconduct caused additional and otherwise needless motions, court proceedings, and court orders); McAvoy, 03 CH 8 (Rev. Bd. at 15) (administration of justice prejudiced where conduct causes delay and wastes court's time and resources).
EVIDENCE OFFERED IN MITIGATION AND AGGRAVATION
Mr. Alcauter that testified he is still confused about whether he owns condominium Unit 2 or Unit 3. According to the closing documents, they purchased Unit 3. Mr. Alcauter never signed away his rights to Unit 3 and has never received any documents informing him he now owns Unit 2. (Tr. 70-71).
Mr. Alcauter testified that he still owns the Belden property, but he and his wife have not been paying the mortgage on it for several years. They stopped making those payments after they received a tax invoice for a large amount that neither he nor his in-laws could afford to pay. Before the tax problem, their mortgage payments totaled about $1,300 per month. They were receiving the money to make these payments from their in-laws and were always able to make the payments promptly. Mr. Alcauter testified that after the tax issue arose, the mortgage payments went up to about $2,700 per month. (Tr. 68-71; Adm. Exs. 8, 9, 10, 11).
Mr. Alcauter admitted he had been sued in the past by the condominium association based upon his failure to pay assessments on the Belden property. Mr. Alcauter could not recall when this occurred, but testified he cleared the matter up by paying the full amount due at one time. Mr. Alcauter was shown a document dated September 1, 2006, titled Demand for Possession, which is directed to him and his wife. It concerns past due assessments on the Belden property and identifies the address of the unit involved as "Unit 2." Mr. Alcauter testified he had not seen this document before. Attached to the Demand for Possession is a copy of a certified mail delivery confirmation receipt which reflects the Alcauters' Gurnee address and contains Mr. Alcauter's signature. Although Mr. Alcauter confirmed this was his signature and his correct address, he reiterated that he had not previously seen this document. (Tr. 66-69, 74; Resp. Ex. 1).
Mr. Torgerson has been licensed to practice law since 1990. He concentrates his practice on real estate closings, consumer bankruptcy, and evictions. Mr. Torgerson did not learn about the problem with the unit numbers on the Alcauters' property until the Alcauters came to see him in February 2010, after they received a letter informing them the Belden property had been sold for delinquent taxes and giving them instructions for redeeming the property. Mr. Torgerson then determined that the taxes the Alcauters had been paying through the escrow with their mortgage company were being applied to a different condominium unit. (Tr. 49-51; Adm. Ex. 11).
Mr. Torgerson testified he has had other cases where a mistake has been made in the closing documents regarding the description of the property, but he described this as an infrequent occurrence. Mr. Torgerson stated that there are different ways to correct this problem,
but typically the deed and mortgage would both be re-recorded with the corrected legal description and the title insurance would also be re-issued to both the lender and the owner. Mr. Torgerson testified these things were not done in the Alcauters' case. (Tr. 51-52).
After Mr. Torgerson learned about the problem, he wrote a letter to the ARDC regarding Respondent's conduct. Mr. Torgerson stated in the letter that the original numbering error could have been easily corrected, and that his clients would have been willing to sign a quit claim deed to the developer for Unit 3 in exchange for a deed to Unit 2. Mr. Torgerson admitted he made the assumption the Alcauters would have come to him if they had been advised of the problem. Mr. Torgerson testified he still considered himself the Alcauters' attorney for issues arising out of the closing, even though he had not had any further contact with them and was not representing them in any other matters. Mr. Torgerson acknowledged the Alcauters did not contact him in 2006 when they received the notice regarding the past due condominium assessments, but he did not know why. (Tr. 55-59, 61-63; Resp. Exs. 1, 2).
Mr. Torgerson testified that the lender ultimately paid the taxes necessary to redeem the Alcauters' unit and they did not lose the property through a tax sale. He stated that the Alcauters' mortgage company advanced the necessary funds and charged the amount against the Alcauters' escrow account, which left them with a negative balance. (Tr. 49-50, 52; Adm. Exs. 6, 7, 11).
Documents introduced into evidence show that the Alcauters' mortgage company made a payment of $25,434.84 on May 14, 2010, to pay the property taxes due on the Belden property on the Alcauters' behalf. They also show that this same amount was then deducted from the Alcauters' escrow account, which left them with a negative balance of $23,769.86. The
documents further reflect a subsequent deposit of $15,126.19 for a "Property Tax Refund" into the Alcauters' escrow account the following month, on June 14, 2010. (Adm. Exs. 6, 7).
After he was visited by the Alcauters, Mr. Torgerson sent a letter to Respondent requesting that he pay the Alcauters $50,000 to compensate them for the losses they incurred as a result of having to redeem the Belden property. Mr. Torgerson admitted that, as the Alcauters' attorney, he shared responsibility for not catching the mistake in the description of the property at the closing. He also acknowledged that he did not say anything in his letter to Respondent about having made a mistake himself. Mr. Torgerson explained that he did not make the demand on Respondent based upon the initial mistake, but because Respondent chose the wrong way to try to resolve it. (Tr. 50, 55, 59-60).
Mr. Torgerson testified that he received his letter back from Respondent, along with a note at the bottom suggesting Mr. Torgerson would be exposing himself to sanctions if he signed a complaint against Respondent regarding the matter. Mr. Torgerson has never received anything from Respondent in which Respondent has expressed any remorse to the Alcauters for their troubles. (Tr. 50-51, 53).
Respondent admitted he erred by not following the strict language in the Notary Act and notarizing what he thought were the Alcauters' signatures when they did not appear before him. Respondent testified he presumed they had signed the deed and described his action as a mistake that was "probably made in haste" at a time when he was juggling many things. Although he trusted his client at the time, he realizes in hindsight he should have taken more time to make sure the signatures were genuine. Respondent apologized to the Commission and the Alcauters for his mistake and said it would not happen again. Respondent testified he would not have
notarized the signatures if he had known they were not genuine. He also noted he derived no economic benefit by complying with his client's request to remedy the surveyor's error. (Tr. 41, 79, 82-83).
Looking back on the matter now, Respondent testified he would have done certain things differently. Respondent would not have notarized the deed without having the signatories appear before him to sign it. Since this incident, Respondent has implemented certain safeguards in connection with his use of a notary, which he believes would avoid what happened in this case. Respondent now follows newer regulations that call for fingerprinting the signatory if the person is unfamiliar to you and keeping a permanent record of their signature and fingerprints. (Tr. 79).
Respondent denied any responsibility for the tax problems experienced by the Alcauters. Respondent maintained that he properly corrected the numbering error and attributed the mix-up that occurred with respect to the tax bills to mistakes made by either the Recorders' Office or the Assessor's Office, which resulted in the Assessor's Office failing to pick up the ownership changes that should have taken place when he recorded the quit claim deeds. According to Respondent, this in turn resulted in the wrong information being sent to the Treasurer and the wrong tax bills being sent to the Alcauters. Respondent testified he had never seen this happen before and could not have anticipated these problems. Respondent did not believe any of this would have happened if normal procedures had been followed. (Tr. 36-41).
Respondent denied that these problems would have been avoided if he had sent copies of the quit claim deed to the Alcauters and the mortgage company so they would know about the change. (Tr. 39-41). He also disagreed that the problem could have been corrected by simply filing a form with the Treasurer's office to change the name and address on the tax bills, which was done by Mr. Torgerson in 2010. Respondent testified this would not have corrected the
problem if it had been done in 2005 when deeds were recorded, because there is a significant delay in the assignment of new PIN numbers when property is converted to condominiums. Therefore, the new PIN numbers for the property would not have yet been assigned. (Tr. 80-82; Adm. Ex. 5).
Although Respondent testified that he feels "horrible" about the mix-up over the Alcauters' taxes, he denied this occurred as a result of his recordation of the quit claim deeds. Respondent maintained that anything that happened thereafter was a consequence of the county failing to follow through on what it should have done. Respondent stated:
My mistake was in notarizing the document. My mistake was not in preparing the quit claim deeds. My mistake was not in recording them. My recordation of the quit claim deeds accomplished exactly what it should have. The consequences thereof was because the county failed to pick up the recording.
Respondent testified he could not remember whether he notified the Alcauters' mortgage company of the numbering error, but he recalled notifying the title company about the error so it could do "whatever" it "needed to do." Respondent testified he just "assumed" the title company would notify the lender, since the policy would have to be amended. Respondent could not specifically recall how he notified the title company, but believed he did it by telephone. Respondent could not recall sending a letter and there is no letter in his file to this effect. Respondent had "no idea" why he would have called the title company and not done this through a letter. (Tr. 27-29).
Respondent acknowledged that, based upon the original closing documentation, the Alcauters' mortgage company would have had a lien on Unit 3 instead of Unit 2. Respondent testified he did not notify the mortgage company about the error so it could release its lien on
Unit 3 because it "wasn't [his] job to do that." He also stated that when Loulee ultimately sold Unit 3, that mortgage was not recorded so he assumed it had been corrected. (Tr. 42-43).
Respondent acknowledged he also acted as the title agent with respect to the Alcauters' transaction and did the title work on Unit 3, since that was the unit reflected on the closing documents. Respondent testified he had "no idea" if a title insurance policy was ever issued to the Alcauters for Unit 2 instead of Unit 3 after he recorded the quit claim deeds. Respondent testified there would be no reason for him to check on this because his work as title agent "was done" after the closing. (Tr. 20, 43-47).
With regard to the statements in his letter to the ARDC, Respondent testified that he holds the Commission in "high regard" and did not intend to mislead it when he prepared his written response. He noted that he was being asked questions about something that happened five or six years ago and described his response as his "knee jerk reaction" at the time he received the letter which was based on what he "normally thought [his] practice was." (Tr. 78).
Respondent testified he is 72 years old, has been practicing law for 47 years, and would like to continue to practice. He believes he has an excellent reputation in the community in which he works and would like to finish out his career and "retire in dignity in the near future without a cloud over [his] head." (Tr. 82-83).
Respondent has been disciplined on two previous occasions. In In re Forrest, 91 CH 154, M.R. 8481 (Sept. 29, 1992), Respondent was censured for misconduct related to his improper handling of client funds and failure to maintain a client trust account. Respondent's misconduct, which took place from 1986 to 1988 and involved several client matters, included the following: commingling of client funds and failure to comply with the rule regarding client trust accounts in
one matter; conversion and dishonesty in two matters by allowing the balance in an account where Respondent deposited client funds to fall below the amount he was holding on behalf of the clients; and conversion and dishonesty as a result of Respondent's failure to forward the interest earned on funds he was holding on behalf of clients to IOLTA. The Hearing Board found certain factors "extremely mitigating," including the lack of harm to any client or third party, the fact that funds due clients were always on time and in full, and absence of any delay in the payment of funds. It also noted Respondent's lack of any prior discipline and evidence of his good character.
In In re Forrest, 09 CH 64, M.R. 23796 (May 18, 2010), the Court allowed a petition to impose discipline on consent in a matter stemming from Respondent's conversion of $7,500 he had been holding in escrow in connection with a real estate transaction. Respondent, who represented the seller, agreed to hold the money at the time of the closing in 2000 to ensure certain repairs were made to the property. In 2006, while Respondent was still holding the funds in his client trust account, the balance in that account became overdrawn by several hundred dollars. Within a week, Respondent restored the balance in his client trust account so that there were sufficient funds to cover the $7,500 and subsequently disbursed those funds to the buyer. In mitigation, Respondent's use of the money was not intentional or dishonest, but was the result of poor bookkeeping practices. Respondent was suspended for one year, stayed after two months in favor of a one-year period of probation with conditions. The conditions of probation were designed to address the deficiencies in Respondent's bookkeeping practices.
Having found that Respondent engaged in misconduct, we must determine appropriate discipline. In making this recommendation, we take into account that the goal of the disciplinary
process is not to punish the Respondent, but to safeguard the public, maintain the integrity of the profession, and protect the administration of justice. In re Timpone, 157 Ill. 2d 178, 197, 623 N.E.2d 300 (1993). We also consider the nature of the misconduct, the aggravating and mitigating factors, the deterrent value of the sanction, and whether the sanction will help preserve public confidence in the legal profession. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003). Although each case is unique and must be resolved in light of its own facts and circumstances, in order to ensure predictability and fairness we generally strive to impose sanctions that are 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, there are several aggravating factors. Respondent's misconduct is aggravated by the fact that he has twice been disciplined in the past for other misconduct. As already discussed, Respondent was censured in 1992 for commingling, conversion, and other misconduct arising out of his mishandling of client funds. More recently, in 2010, he was again disciplined for misconduct related to the conversion of funds he was holding in his client trust account in connection with a real estate transaction. In the latter case he received an actual suspension of two months followed by a one year period of probation.
A history of prior discipline can be a significant aggravating factor which may result in an enhanced sanction. In re Blank, 145 Ill. 2d 534, 554-55, 585 N.E.2d 105 (1991). The weight to be given prior discipline in aggravation depends upon a number of factors, including the nature and severity of the prior misconduct and how recently it occurred. See In re Levin, 101 Ill. 2d 535, 541, 463 N.E.2d 715 (1984); In re Marsh, 96 CH 632, M.R. 15445 (Feb. 1, 1999) (Review Board at 10-11). Where the prior misconduct occurred long ago or is not similar to the
current misconduct, it is generally given less weight as an aggravating factor. See In re Hays, 05 SH 3, M.R. 21050 (Sept. 21, 2006) (Review Bd. at 11); In re Vrdolyak, 98 CH 17, M.R. 16866 (Sept. 22, 2000) (Review Bd. at 16-17). In contrast, where it is similar to the current misconduct it is considered especially aggravating because it shows that the attorney has failed to reform his behavior in response to past mistakes. See Levin, 101 Ill. 2d at 541-42. The weight given prior misconduct in aggravation is also affected where the current misconduct predates the misconduct in the prior matter. Prior discipline is considered less aggravating in such circumstances because the additional wrongdoing is not an indication of recidivism. See In re Teichner, 104 Ill. 2d 150, 167-68, 470 N.E.2d 972 (1984); In re Gomric, 96 SH 216, M.R. 14271 (Jan. 29, 1998). Nonetheless, such misconduct can still be considered as part of the totality of the respondent's misconduct in determining sanction. Teichner, 104 Ill. 2d at 167-68.
In this case, both of Respondent's prior disciplinary matters involved Respondent's mishandling of funds belonging to clients or other third parties. Thus, neither case involved misconduct similar to that here. In addition, the misconduct in the first disciplinary matter took place in 1986 through 1988, which is long ago. Furthermore, Respondent's misconduct in Count I occurred in 2005, which was before the misconduct in the second disciplinary matter. These considerations substantially lessen the weight we give these prior cases as aggravating factors.
Respondent's false statements to the ARDC, however, occurred in 2010, which was well after his misconduct in the second disciplinary matter. In addition, while discipline had not yet been imposed, the disciplinary proceedings were ongoing at the time Respondent prepared and submitted his response to the Administrator's inquiry. Respondent's letter to the ARDC was submitted on March 5, 2010, and the Court issued its order imposing discipline on consent on May 18, 2010. Thus, while Respondent could not undo the misconduct that had already occurred
in 2005, he clearly had the opportunity to be careful and candid in responding to the Administrator's inquiry regarding the matter. Moreover, as an attorney who was in the midst of his second disciplinary matter, Respondent should have had a heightened awareness of the Rules of Professional Conduct and his obligations thereunder. See e.g, In re Ervin, 05 CH 92, M.R. 21195 (Nov. 17, 2006) (Hearing Bd. at 9-10); In re Shuff, 04 SH 50, M.R. 20108 (May 20, 2005) (Hearing Bd. at 20-21); In re Davies, 01 CH 60, M.R. 18141 (Sept. 19, 2002) (Hearing Bd. at 9). Therefore, while we do not attach great weight to Respondent's first disciplinary matter as an aggravating factor, we give some weight to the second matter, particularly as it relates to the misconduct at issue in Count II.
We also consider in aggravation the harm suffered by the Alcauters as a result of Respondent's misconduct. Although Respondent denied causing the Alcauters' tax problems and attempted to attribute the mix-up to other circumstances beyond his control, it is clear from all of the evidence presented he bears some significant responsibility for what transpired. Had Respondent complied with his obligations as notary and witnessed the Alcauters' signatures, or otherwise taken steps to verify they had signed the deed, this would have ensured they were at least aware of the mistake that occurred at the closing. His failure to do so, coupled with his failure to notify their lawyer about the error, clearly contributed to the fact that this mistake was never properly corrected. Moreover, while Respondent insisted his recordation of the deeds was the correct way to fix the problem, Mr. Torgerson testified that other steps should also have been taken, which were not done in this case. Thus, while Respondent may not have been responsible for the original numbering error, he clearly bears significant responsibility for the fact that it was not properly corrected.
Respondent argued that the mix-up with regard to the taxes occurred because the Assessor's office failed to pick up the recordation of the quit claim deeds, not because of the forged signatures. Even if the Assessor's office did err, however, this does not negate or excuse Respondent's own mishandling of the matter. If anything, it only highlights the importance of notifying the Alcauters and their attorney of the mistake so they could ensure it was properly corrected. Furthermore, we do not accept Respondent's suggestion that he was justified in failing to notify Mr. Torgerson because he was unsure whether he still represented the Alcauters after the closing. Respondent offered no real evidence to support this assertion and it is contrary to the other evidence in the case, including the testimony of the Mr. Torgerson and the actions taken by the Alcauters when they finally learned about the problem. The fact that the Alcauters did not contact Mr. Torgerson when they received the notice about the unpaid assessments is not significant, in light of Mr. Alcauter's testimony that they simply resolved the matter by paying the past due amount. We also note that the closing took place on October 15, 2004, and the error was discovered by early May 2005, which was less than 7 months later. Thus, this was not a situation involving some long ago transaction. Finally, if Respondent had any doubts or concerns about whether Mr. Torgerson was still the Alcauters' attorney a simple telephone call to Mr. Torgerson could have resolved them.
We also reject any attempt by Respondent to blame the Alcauters for not recognizing the problem after they received the condominium assessment notice, which identified their unit as Unit 2 rather than Unit 3. The notice dealt with overdue assessments on the property and said nothing about any error that occurred at the closing. It is not reasonable to suggest that, based upon this, the Alcauters should have recognized the discrepancy and appreciated the need to take
further action to ensure that issues related to their mortgage and tax payments had been properly corrected.
Respondent also argues that the Administrator failed to prove the Alcauters suffered any actual financial loss as a result of his misconduct. We agree that, based upon the evidence presented, we are not able to quantify any precise amount of monetary loss suffered by the Alcauters as a result of this matter. The evidence showed that while they faced an original tax bill of over $25,000, they subsequently received a credit of around $15,000 based upon the tax payments that had been misdirected to the other property. It does not appear from the evidence, however, that they recouped the remaining amount. In any event, it is undisputed the mix-up resulted in their property being sold for delinquent taxes and they were required to go through the process of redeeming it in order to retain ownership. Mr. Alcauter also expressed some lingering confusion about what unit they now own. Thus, irrespective of their actual financial losses, the Alcauters were clearly harmed as a result of Respondent's actions.
Finally, we also consider in aggravation Respondent's failure to show any genuine concern for the Alcauters and his refusal to accept any responsibility for the problems they experienced. Although Respondent admitted he was wrong to falsely notarize the signatures, he insisted he otherwise acted properly and was not to blame for anything else that took place. He refused to acknowledge he should have at least notified the Alcauters' attorney, so he could have determined what steps needed to be taken to protect their interests. Even though he served as title agent and knew the title policy was issued on the wrong unit, he denied any responsibility to ensure this was corrected, stating that his work "was done" after the closing. He similarly dismissed the suggestion that he should have notified the Alcauters' mortgage company of the error because this "wasn't [his] job." We find Respondent's failure to recognize, even in
hindsight, that he should have handled these matters any differently troubling. We also believe he displayed a cavalier attitude towards the Alcauters and the predicament they found themselves in as a result of this matter. We also found Respondent's attitude and overall demeanor largely inconsistent with his expressions of remorse.
In mitigation, we believe that Respondent's actions were well-intentioned and were genuinely aimed at correcting an error. While he was obviously trying to please his client, he did not have a malevolent motive and there was no evidence he personally gained from the transaction. Respondent testified he has also now implemented new procedures in connection with his use of his notary seal in accordance with current law, which should prevent a recurrence of the problem that happened here.
The Administrator argues that the totality of Respondent's misconduct in falsely notarizing the Alcauters' signatures on the deed and then lying about it to the Administrator, coupled with his history of prior discipline and the other aggravating factors, warrants a suspension for one year and until further order of the court. Respondent contends that his misconduct was limited to falsely notarizing the signatures and suggests only a modest sanction in the range of a reprimand, censure, or brief suspension (30 days), is warranted. Both parties have cited various cases in support of their respective positions.
The Administrator relies primarily on In re Thebeau, 111 Ill. 2d 251, 489 N.E.2d 877 (1986) and In re Passman, 93 CH 573, M.R. 12249 (Mar. 26, 1996) in support of his position a one-year suspension is warranted. In Thebeau, the respondent was suspended for two years for his involvement in a fraudulent course of conduct in an estate matter, which included improperly notarizing signatures on a real estate contract and on several quit claim deeds. The attorney also presented a petition in court for approval of the sale of property that deliberately contained false
information regarding the nature and terms of the sale. Although the attorney was not motivated by any personal financial gain, the Court found the fraud to be particularly aggravating because it was "a fraud practiced upon the judicial system." Thebeau, 111 Ill. 2d at 256. In Passman, the respondent was suspended for nine months for preparing a false stipulation to dismiss a wage deduction proceeding that was pending against his wife, forging the signature of the opposing attorney on the stipulation, and then submitting the stipulation to his wife's employer. The attorney then attempted to cover-up his misconduct by lying to the court, opposing counsel, and the ARDC. The attorney's actions were motivated by concern for his wife and a desire to protect her employment situation.
Although there are some similarities, we find both Thebeau and Passman distinguishable from this matter. As even the Administrator conceded, the misconduct in Thebeau was clearly more serious than Respondent's because it went beyond the improper use of the notary and included knowingly filing a false petition in court. Passman also involved misconduct that was more extensive and egregious than Respondent engaged in here. The attorney in Passman did not merely notarize a signature he did not witness; he fabricated a document, forged another attorney's signature on it, and then used it to try to help his wife. Unlike Respondent, he was not simply trying to correct an error but was trying to help his wife keep her job. He also engaged in a far more extensive scheme to cover-up his wrongdoing. Although neither of these cases involved attorneys with prior discipline, we conclude both involved more serious misconduct than Respondent engaged in here.
Respondent has cited a series of cases in support of his argument that only a modest sanction is warranted. Most of these cases, however, involved misconduct that was limited to improperly notarizing signatures on documents. See In re Hoffman, 07 CH 88 (Aug. 21, 2008)
(attorney reprimanded for falsely notarizing signature on a power of attorney he prepared for the mother of a friend); In re Maganzini, 09 CH 36, M.R. 23561 (Jan. 21, 2010) (attorney censured for falsely notarizing client's wife's signature on two power of attorney forms and on mortgage); In re Fiandaca, 2010PR006, M.R. 24543 (May 18, 2011) (30-day suspension plus ethics course for falsely notarizing client's wife's signature on affidavit and filing it in court); In re Blum, 08 CH 22, M.R. 22969 (Mar. 16, 2009) (attorney suspended 30 days for falsely notarizing signatures on power of attorney forms on three occasions). Unlike here, these matters did not include additional charges based on false statements to the ARDC or involve attorneys with prior discipline.
In re Moulton, 03 CH 132, M.R. 19700 (Nov. 17, 2004), is the only case cited by Respondent which also included subsequent misrepresentations in the course of the disciplinary investigation. The respondent there improperly notarized a signature he did not witness on a verification attached to a warranty deed and then recorded the document. He then falsely stated in a letter to the ARDC that the document had been signed in his presence. He also acted improperly by representing both parties in the transaction. The respondent had not been previously disciplined, acknowledged his misconduct and expressed remorse. The case was resolved on a petition to impose discipline on consent and the respondent was suspended for 30 days. Although the underlying misconduct in Moulton is similar to Respondent's, the attorney there had no prior discipline. We also believe there was less aggravation and greater mitigation than in this case.
In addition to the cases cited by the parties, we also note In re Bulger, 02 CH 40, M.R. 19550 (Sept. 27, 2004), and In re Niew, 98 CH 113, M.R. 17491 (May 25, 2001), which are also similar to this matter. In Bulger, the respondent was suspended for five months for improperly
notarizing his clients' signatures on a verification to an answer and filing it in court. He then testified falsely about the matter in court and responded falsely to the ARDC's initial inquiry into the matter. He also failed to provide competent representation and filed a frivolous appeal. In mitigation, the Review Board noted that the respondent had essentially taken a short cut in obtaining his client's signature in order to meet a deadline and avoid inconveniencing his client. It also noted a number of other mitigating factors, including the lack of any motive for personal gain, concern for his clients, lack of any prior discipline, favorable character evidence, and evidence of involvement in pro bono work and mentoring activities.
In Niew, the respondent was suspended for nine months for notarizing signatures purporting to be her clients' on pleadings in two separate matters. She then made false statements about her conduct in each matter to the ARDC. Additionally, the attorney notarized an affidavit even though she knew it contained false statements and made false statements to a client. She had also been censured in a prior disciplinary matter for making a false statement under oath regarding her marital status. In mitigation, the attorney acknowledged her misconduct, accepted responsibility for her actions, had a positive reputation in the legal community for truth and veracity, and regularly performed pro bono work.
Bulger and Niew are both similar to this case because both involved attorneys who falsely notarized signatures on documents and then made misrepresentations about it to the ARDC. Although the attorney in Bulger also lied about his actions in court, unlike Respondent, he had no prior discipline. There was also additional mitigation and less aggravation than in this case. Niew is similar to this matter because the attorney there also had prior misconduct. Her misuse of the notary, however, was more extensive, as were her false statements to the ARDC and others. In addition, her prior misconduct also involved a false statement under oath.
After considering all of the foregoing cases and taking into account the particular facts and circumstances of this matter, we conclude that a suspension for a period of 6 months is appropriate discipline in this matter. This sanction is within the range of sanctions imposed in cases involving similar misconduct. We also believe that it properly takes into account both the seriousness of Respondent's misconduct and the specific aggravating and mitigating factors present here. We also conclude that a six-month suspension will effectuate the goal of the disciplinary process, which is not to punish the respondent, but to safeguard the public, maintain the integrity of the profession, and protect the administration of justice.
Although the Administrator has also requested that Respondent's suspension be continued until further order of Court (UFO), we decline to include this in our disciplinary recommendation. Next to disbarment, a UFO suspension is the most serious disciplinary sanction that can be imposed. In re Timpone, 208 Ill. 2d 371, 386, 804 N.E.2d 560 (2004). In the past, it has typically been reserved for cases where there are issues of mental health or substance abuse, a disregard of ARDC proceedings, or other factors that call into question the attorney's ongoing fitness to practice law consistent with the Rules of Professional Conduct. See, e.g., In re Houdek, 113 Ill. 2d 323, 497 N.E.2d 1169 (1986) (UFO imposed where attorney failed to participate in disciplinary matter, failed to pay restitution, and there was lack of evidence he was willing or able to meet professional standards of conduct in the future); In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978) (attorney who failed to appear until Court approved report recommending disbarment suspended UFO in order to protect public from his irresponsible conduct).
In this case, the Administrator argues that a UFO suspension is appropriate because Respondent's history of prior discipline indicates he does not understand his ethical obligations.
Although a history of multiple prior disciplinary matters has been used to support the imposition of a suspension UFO, this has not always been the case. See, e.g., Howard, 188 Ill. 2d 423, (attorney with two prior disciplinary matters suspended for two years); In re Guilford, 115 Ill. 2d 495, 505 N.E.2d 342 (1987) (Court declines to impose UFO suspension in attorney's third disciplinary matter); In re Banks, 2011PR00008, M.R. 25136 (Mar. 19, 2012) (attorney with two prior disciplinary matters suspended 30 days). Where prior discipline has been cited as a basis for a UFO it has typically involved a case where the respondent has been repeatedly disciplined for the same type of misconduct. There are also frequently additional factors present that call into question the attorney's overall fitness to practice law. See, e.g., Levin, 101 Ill. 2d 535 (respondent previously disciplined for neglect suspended 3 years and UFO for similar misconduct in 6 additional matters); In re Samuels, 09 CH 38, M.R. 24427 (Mar. 21, 2011) (respondent suspended one year and UFO where he had prior similar misconduct, failed to cooperate in disciplinary proceeding, failed to recognize his actions were wrong, and gave no indication he would correct his behavior); Shuff, 04 SH 50 (attorney who engaged in same type of serious misconduct while disciplinary proceeding pending for similar misconduct suspended 6 months and UFO); Gomric, 96 SH 216 (respondent previously disciplined three times for similar misconduct suspended 18 months and UFO where past and current misconduct showed pattern of serious client neglect over 25 years).
While it is clearly troubling that this is Respondent's third disciplinary matter, his misconduct here is not similar to that in his two previous cases, and a significant part of it predated some of his prior misconduct. Thus, we do not believe this presents a situation where an attorney has evidenced an unwillingness or inability to reform his conduct in response to past
mistakes. Nor do we find other factors present here which would support the imposition of such a severe sanction in case.
For the foregoing reasons, we recommend that Respondent, Jess Evan Forrest, be suspended for a period of six (6) months.
I, Kenneth G. Jablonski, Clerk of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois and keeper of the records, hereby certifies that the foregoing is a true copy of the Report and Recommendation of the Hearing Board, approved by each Panel member, entered in the above entitled cause of record filed in my office on November 30, 2012.
Kenneth G. Jablonski, Clerk of the
1 All citations to Respondent's Answer refer to his Answer to the First Amended Complaint.
2 The Administrator also charged Respondent in both Counts I and II with engaging in "conduct which tends to defeat the administration of justice or bring the courts or legal profession into disrepute in violation of Supreme Court Rule 770." The Illinois Supreme Court recently stated, "Rule 770 is not itself a Rule of Professional Conduct" and "one does not 'violate' Rule 770. Rather, one becomes subject to discipline pursuant to Rule 770 upon proof of certain misconduct." In re Thomas, 2012 IL 113035, par. 92. Accordingly, based on the wording of the allegations in the Complaint before us, we find no violation of Rule 770. The fact we did not find violations of Supreme Court Rule 770 does not affect our recommendation as to sanction. In re Gerard, 132 Ill. 2d 507 (1989).
3 Although Rule 8.1(a) of the 2010 Rules uses the term "knowingly" rather than "known," these terms are defined the same in the Terminology section of both versions of the Rules.