Filed October 2, 2014
In re John F. Argoudelis
Commission No. 2012PR00160
Synopsis of Review Board Report and Recommendation
This matter arises out of Respondent's representation of a client regarding the administration of his brother's estate. Based on the representations of his client, Respondent drafted and filed in Will County an affidavit of heirship and letters of administration stating that his client was the only surviving heir of the estate. He later learned that there were additional heirs but Respondent took no steps to correct the false affidavit or to file an amended affidavit of heirship. Respondent also repeated the false statement that his client was the only heir in subsequent statements to the court. The Administrator charged Respondent with assisting his client in a fraud, failing to rectify the fraud, and making false statements to the court in violation of Rules 1.2, 3.3, and 8.4.
The Hearing Board found that Respondent engaged in most of the misconduct alleged by the Administrator. The Hearing Board concluded that the Administrator did not prove that Respondent knowingly made a false statement to the court with respect to one court appearance in April 2010 but concluded that Respondent engaged in the remainder of the alleged misconduct. The Hearing Board recommended that Respondent be suspended for a period of ninety days.
Upon review, the Administrator challenged the finding that Respondent did not engage in misconduct with respect to his April 2010 appearance in court. The Review Board concluded that the Hearing Board's findings were not against the manifest of the evidence. The Administrator and the Respondent also challenged the sanction recommendation. After reviewing the precedent and the factors in mitigation and aggravation, the Review Board recommended that Respondent be suspended for a period of five months.
BEFORE THE REVIEW BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
JOHN F. ARGOUDELIS,
Commission No. 2012PR00160
REPORT AND RECOMMENDATION OF THE REVIEW BOARD
This matter involves an attorney who filed false documents in court as a result of his client's misrepresentations to him and subsequently, over the course of approximately seventeen months, failed to correct the false statements. Because the lawyer was more interested in keeping his client happy than in making sure the court was properly informed, he now faces discipline.
The Administrator filed a Complaint against Respondent that included allegations that Respondent assisted his client in a fraud and in deceiving the court in violation of Rules 1.2(a) and 3.3, failed to correct the fraud in violation of Rules 1.2(g) and 3.3, and engaged in dishonest conduct in violation of 3.3 and 8.4. The Hearing Board found that Respondent had engaged in most of the misconduct alleged by the Administrator and recommended that Respondent be suspended for ninety days. The Administrator filed exceptions and contends that the Hearing Board erred in failing to find Respondent intentionally lied to the court in violation of Rule 3.3(a)(3) at a court hearing in April 2010. The Administrator asks that Respondent be suspended for a period of at least six months. The Respondent does not dispute the Hearing
Board's findings, but argues that a lesser sanction of censure or a short suspension is warranted. For the following reasons, we affirm the findings of the Hearing Board, but we recommend to the Court that Respondent be suspended for a period of five months.
Respondent's Admitted Misconduct
The facts surrounding Respondent's representation of Paul Volgar are set forth in greater detail in the Hearing Board's Report. The parties do not dispute most of facts and findings of misconduct as set forth in the Hearing Board's Report.
Following the death of James Volgar ("James") in 2008, Respondent agreed to represent James' brother, Paul Volgar ("Paul"), regarding the administration of his brother's estate. Paul was angry that Margaret Madonis ("Margaret"), a great-niece who had cared for James during his life, was named as a joint tenant on one of James' bank accounts. After James' death, Margaret received about $400,000. Paul wanted this money. Paul told Respondent that he was James' only heir. Based upon the information he received from Paul, Respondent drafted and filed in Will County an affidavit of heirship and letters of administration stating that Paul was the only surviving heir. The probate court then appointed Paul as administrator of the estate.
In early 2009, Respondent learned that Paul had lied to him and that James had additional heirs. However, Respondent took no steps over the following seventeen months to correct the false affidavit he had filed with the court or to file an amended affidavit of heirship. At hearing, Respondent asserted he failed to amend the affidavit of heirship because he simply forgot about it and forgot about the existence of other heirs. He testified he was more focused on the issue as to whether Paul could obtain the money received by Margaret. The Hearing Board rejected Respondent's testimony, finding it incredible, and noting that 1) Respondent discussed
the existence of additional heirs with various individuals; 2) he conducted research regarding distribution law; and 3) he formulated a potential argument to limit the share of the other heirs. Accordingly, the Hearing Board found that Respondent knowingly failed to correct the false statement in the affidavit. Respondent does not challenge this finding.
Following Paul's appointment as administrator of the estate, Respondent used the false information regarding heirship to obtain information from financial institutions in an attempt to support Paul's claims against Margaret. Respondent also sold James' home in 2009 without notification to the other heirs. Respondent's mother-in-law was the listing real estate agent and Respondent was the title agent. Respondent took over $9,000 in attorney's fees from the sale proceeds, most of which was for fees Paul owed him to pursue the claim against Margaret.
In addition, Respondent repeated the false statement that Paul was an only heir in subsequent statements to the court, including in a motion for waiver of a surety bond filed in December 2009. At a hearing on the motion, the judge asked if Paul was the sole beneficiary to the estate and Respondent indicated to the court in the affirmative. As a result of his misrepresentation, the court granted his motion.
As a result of this misconduct, the Hearing Board found that Respondent violated Rules 1.2(d) and 3.3(a)(2) by assisting Paul in fraudulent conduct, Rules 1.2(g) and 3.3(a)(3) by failing to amend the false affidavit or otherwise rectify the fraud, Rule 3.3(a)(1) by filing a motion in December 2009 which falsely stated that Paul was the sole heir and then by appearing in court on the motion on December 3, 2009 and representing that Paul was the sole heir, Rules 8.4(a)(4)(1990) and 8.4(c)(2010) by engaging in dishonest conduct in making the false
statements, and Rules 8.4(a)(5)(1990) and 8.4(d)(2010) by causing needless litigation and court proceedings once the fraud was detected.
The April 2010 Court Appearance
Prior to April 2010, Paul filed a pro se complaint in Will County against Margaret seeking the $400,000 that James held in a joint account with Margaret and claiming that Margaret had embezzled the money. Paul did not tell Respondent he filed this complaint. On April 6, 2010, Respondent was in court on other matters when he heard the court clerk call the case for a hearing. He thought he might have forgotten about a status hearing in the probate case for that day. Paul was not present in court when the case was first called. Respondent stepped up to the bench. He stated he was appearing on behalf of Paul, the executor of the estate. The court asked if Paul Volgar was in court. Respondent replied, "Paul is actually my client." After the court informed Respondent of the complaint, Respondent indicated he was unaware his client had filed the complaint but told the judge that Respondent wanted to file the claim on behalf of Paul. A discussion between the judge and Respondent ensued as to whether the claim should be filed in probate court or in chancery court. In identifying the case, the judge recalled that Paul was serving as administrator to the estate without surety and was the sole heir to which Respondent answered, "Yes". The judge then stated that Respondent could file the claim in the probate case and the court would look at it. The judge entered an order striking Paul's pro se motion and confirming the previously set date for a status hearing in the probate matter.
Shortly thereafter, Respondent filed a complaint against Margaret in the probate matter alleging that Margaret exerted undue influence and requesting that the $400,000 be turned over to Paul. Respondent again did not reveal that there were additional heirs. When Margaret was served with the complaint in the probate matter, her counsel reviewed the probate file and
learned that the affidavit of heirship was incorrect and that there was no surety in place to insure that Paul acted appropriately as administrator. Shortly thereafter, upon motion of one of the other heirs, the court removed Paul as administrator of the estate and vacated the order of heirship. Margaret and one of the other heirs filed a motion for sanctions against Paul alleging that the lie concerning heirship had harmed the heirs and caused unnecessary legal expenses. The court granted the motion and ordered that Paul pay about $9,000 in sanctions and attorney fees out of Paul's share of the estate. The court also ordered that Respondent's conduct be reported to the ARDC.
The Administrator alleged, and Respondent admitted, that the statements Respondent made to the court on April 6 that Paul was the only heir were false. The Administrator alleged that Respondent violated Rule 3.3(a)(3) which states in part, "A lawyer shall not offer evidence that the lawyer knows to be false. If the lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." The Hearing Board found that Respondent violated the second sentence of the Rule and Respondent does not challenge that finding. However, the Hearing Board concluded Respondent did not violate the first sentence of the Rule, stating that "his participation in the proceeding was not as an advocate and his response to the Court's inquiry was not made in an effort to prove any proposition or seek any order."
The Administrator contends that this finding that Respondent did not offer evidence he knew to be false in violation of Rule 3.3(a)(3) was against the manifest weight of the evidence. We do not overturn findings of fact unless they are against the manifest weight of the
evidence. In re Cutright, 233 Ill. 2d 474, 488, 910 N.E. 2d 581 (2009). "A decision is against the manifest weight of the evidence only if the opposite conclusion is clearly evident." Id.
Our decision regarding this issue has no bearing on the sanction recommendation in this matter, particularly given that the Hearing Board concluded Respondent, by the same conduct, violated the second sentence of the same rule. However, we decline to overturn the Hearing Board's finding. Comment 1 to Rule 3.3 begins, "This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal." Respondent was not representing Paul; Paul had filed a pro se motion. Moreover, the Hearing Board's interpretation that Respondent was attempting to answer the court as to the correct identification of the case, as opposed to attempting to obtain relief or to offer evidence, is reasonable given the circumstances.
Like our recommendation, the Hearing Board's recommendation as to a sanction is advisory. In re Ingersoll, 186 Ill.2d 163, 178, 710 N.E.2d 390 (1999). The purpose of discipline is not to punish the individual respondent, but to protect the public, to maintain the integrity of the profession and to protect the administration of justice from reproach. In re Timpone, 157 Ill.2d 178, 197, 623 N.E.2d 300 (1993). In determining the appropriate sanction, this Board considers the nature of the misconduct charged and proved, and any aggravating and mitigating circumstances shown by the evidence. In re Gorecki, 208 Ill. 2d 350, 360-61, 802 N.E.2d 1194 (2003).
In mitigation, as found by the Hearing Board, Respondent cooperated in the proceedings, expressed regret, presented a number of character witnesses and engaged in substantial community service. In addition, Respondent has never been disciplined. Based on
evaluation of the Respondent's testimony, the Hearing Board was persuaded that Respondent was unlikely to repeat his misconduct.
In aggravation, the Hearing Board found that Respondent's conduct caused harm. Respondent's conduct jeopardized the interests of the other heirs. His actions prevented the heirs from taking any action with respect to the sale of James' house. He took $9,000 in fees from the sales proceeds that arguably should not have been an expense borne by the other heirs. His conduct also harmed his own client who was sanctioned for engaging in deceit. As noted by the Hearing Board, it is unlikely that Paul would have been sanctioned and ordered to pay $9,000 had Respondent acted appropriately and amended the affidavit of heirship as soon as he learned it was false. Finally, we agree with the Hearing Board that the judicial system was harmed due to Respondent's conduct. Respondent's conduct forced the other heirs to take action in court, at additional expense to the heirs and inconvenience to the court, in order to correct Respondent's wrongdoings.
Respondent's misconduct was serious. When he learned his client had lied to him and that he had included those lies in material statements he made to the court, Respondent had an obligation to stand up to his client and to persuade his client to remedy the false statements. Respondent did not do so, and his repeated failure to do so over such an extended period of time warrants a sanction greater then a censure or a very brief suspension.
Our sanction recommendation should be consistent with the sanctions imposed in other cases involving comparable misconduct. See, In re Chandler, 161 Ill.2d 459, 472, 641 N.E.2d 473 (1994). The Hearing Board relied on two cases in support of a ninety day suspension recommendation, In re Bradley Verett, 07 SH 105 (Hearing Bd., June 17, 2008), recommendation adopted, No. M.R. 22567 (Sept. 17, 2008)(ninety day suspension and order to
complete professionalism seminar imposed for attorney who made false statements to court in one matter over the course of several days, including false statements in pleadings.) and In re Heyl, 96 CH 690, petition for discipline on consent allowed, No M.R. 12944 (Nov. 26, 1996)(respondent, after being involved in an automobile accident, agreed with the other driver to falsely report the accident as occurring the following day so as to allow the other driver to obtain insurance). Both of these cases involved misconduct that was shorter in duration than the conduct here. Likewise, Respondent relies on several cases where the misconduct was shorter in duration and caused less harm than in the present case. See, e.g., In re Kelleher, 93 SH 102 (Review Bd., July 18, 1995), approved and confirmed, No. M.R. 11701 (Dec. 1, 1995)(attorney censured for making a false affidavit that a defendant could not be served, and using publication to obtain a divorce judgment).
The Administrator, in seeking a six month suspension relies primarily on In re Capozzoli, 00 CH 37 (Review Bd., Aug. 9, 2002), petitions for leave to file exceptions allowed, No. M.R. 18371 (Jan. 2, 2003). In our view, the cases are not comparable. In Capozzoli the Court imposed a six month suspension for providing incompetent representation of prospective parents in an adoption petition. The child's father raised a claim of paternity but Capozzoli failed to investigate the claim and as a result presented inaccurate information provided by the birth mother to the court. Unlike this case, there was no evidence that Capozzoli knew his statements were inaccurate when he made them. Later when it was discovered that the information he provided the court was not accurate and that he had not competently presented the case the adoption had to be voided causing substantial personal harm to all concerned. In our view the harm caused by the misconduct was greater than the harm the Respondent caused.
While no two disciplinary cases are exactly alike, we view this case as more comparable to In re Vitell, 00 CH 95 (Review Bd., Dec. 31, 2003), petition for leave to file exceptions denied, No. M.R. 19303 (May 17, 2004), where the Court imposed a five month suspension upon an attorney who negotiated approximately eighty-eight disability checks after the death of a client so the client's widow could continue to receive the disability payments. It is a case where a lawyer aids a client without taking into account his professional obligations to act with integrity. Accordingly, we conclude that a five month suspension adequately addresses the seriousness of Respondent's misconduct, complies with the purposes of discipline, and is consistent with other sanctions.
For the foregoing reasons, we affirm the findings of fact and of misconduct of the Hearing Board and we recommend to the Court that Respondent, John F. Argoudelis, be suspended from the practice of law for a period of five months.
Johnny A. Fairman, II
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 Review Board, approved by each Panel member, entered in the above entitled cause of record filed in my office onOctober 2, 2014.
Kenneth G. Jablonski, Clerk of the